Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC109

Royal Court

(Samedi)

7 June 2013

The Attorney General

-v-

Kevan John Falle

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

Age:  39.

Plea: Guilty.

Details of Offence:

Falle kicked and punched a vulnerable male who was attempting to sleep on one of the stairwells of Patriotic Street car park.  The victim and Falle were known to each other.  Falle then produced a Stanley knife like blade or part of such a blade and cut the victim across the forehead causing an 8 cm linear abrasion.  This was an unpleasant and frightening assault.  The assault was aggravated by the fact that Falle was heavily intoxicated from a combination of drink and drugs.  In interview under caution Falle denied the assault.  He admitted that he knew the victim and that they were good friends and there were no problems between them.  He denied not only the assault but seeing the victim in the car park that night.  The assault was unprovoked.  Falle suggested in a letter of remorse to the Court that the victim had made disparaging comments earlier in the day about him but Falle had given different accounts and said that he had little recollection of the incident itself. 

The Crown applied the facts to the factors identified in Harrison-v-AG.  The Crown suggested a "starting point" of 4 years' imprisonment.  The Court had a consistent policy in relation to knife crime.  There were no unusual circumstances here.  Custodial sentence is warranted. 

Breach Offences

Committed over a period of 4 months and involving the possession of one tablet of subutex valued at £80, an offence of drunk and disorderly and refusing to obey police on one occasion, a separate offence of drunk and disorderly and shoplifting of two bottles of alcohol to the value of £36.48. 

Details of Mitigation:

The Crown

The only mitigation of substance was the guilty plea entered when matters were still before the Magistrate's Court.  Not co-operative.  Did not have the benefit of youth.  Did not have the benefit of good character.  Grave and criminal assault committed 8 days after being place on probation by the Magistrate's Court.  Assessed at being high risk of re-offending and a risk of harm to the public and to himself. 

The Defence

Falle understood the seriousness of the offending and his breach of probation.  He regretted his actions.  Defence submitted that a non-custodial sentence appropriate or less custodial sentence than moved for by the Crown.  Suggested that there was an element of provocation albeit did not press this point.  Genuine remorse.  Full credit for guilty plea.  Element of delay as Crown had changed charge of grave and criminal assault to robbery which has subsequently been withdrawn.  Used time positively whilst in prison attending courses.  Motivated to change lifestyle.  Background reports revealed a troubled background and used of alcohol and drugs was mal-adjusted coping mechanism.  Treated for depression and anxiety and had self-harmed in the past.  He accepts that given the previous breaches of Court Orders risk of failure on a non-custodial sentence but a community based order was the best way to prove himself and to change. 

Previous Convictions:

27 convictions for 94 offences including breaking and entry, possession of controlled drugs, burglary and theft, supplying controlled drugs, possession of a firearm, assault on police, drunk and disorderly, malicious damage, larceny and receiving stolen goods. 

Conclusions:

Breach of Magistrate's Orders: 3 month's imprisonment, consecutive to current Indictment.

Total: 2 years and 11 months' imprisonment.

Sentence and Observations of Court:

Defendant to be sentenced for one offence of grave and criminal assault which involved kicking and punching a vulnerable person who was attempting to sleep in the stairwell of a car park.  The defendant then produced a Stanley knife like blade and slashed it across the forehead of the victim, this offence being committed 9 days after being placed on probation for 9 months.  The defendant had 27 convictions for a total of 94 offences.  Assessed at high risk of re-offending and risk of harm to himself and to public.  Previously been dealt with by all the sentencing options.  Prior to the grave and criminal assault he had been treated for depression.  As clear from the reports he had turned to substance misuse as a means of escapism and for a false sense of confidence.  The Crown had applied the factors in the case of Harrison-v-AG.  The Court had a clear and well established policy in relation to knife crime.  The Crown sought a sentence of 2 years 8 months' imprisonment after taking a starting point of 4 years' imprisonment.  The Crown sought a further 3 months' consecutive for the breach offences.  In mitigation the Court had taken into account the submissions and read the reports.  Entitled to credit for his guilty plea.  He appeared to be genuinely remorseful and this was supported by the letter to the Court and also the views of the psychologist.  Falle could not remember much about the incident but suggested that there had been an element of provocation in consequence of disparaging comments by the victim.  In the view of the Court, even if it had been true that such comments had been made, then it came nowhere near being provocation.  The view of the Court was that this was a cowardly and foul attack upon a vulnerable person asleep in a public place. 

Conclusions Granted. 

J. C. Gollop, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

The COMMISSIONER:

1.        The defendant stands to be sentenced for one offence of grave and criminal assault, which involved the kicking and punching of a vulnerable person who was sleeping in the stairwell of a public car park.  The defendant then produced a Stanley knife-like blade and slashed the victim across the forehead causing a single 8cm linear abrasion of the skin, covering the forehead, which, although it did not require stitching, bled profusely.  This assault was committed 9 days after the defendant had been placed on 9 months' probation for five less serious offences, for which he now stands to sentenced in addition. 

2.        The defendant has 27 prior convictions, for committing 94 offences, and is assessed at a high risk of reoffending, with indications that he poses a risk of harm to members of the public.  He has been dealt with by all other sanctions available to the Court over the years. 

3.        At the time of the grave and criminal assault the defendant was being treated for depression, and has been psychologically assessed as having avoidant and negativistic clinical personality patterns as well as anti-social personality disorder.  The indications are that he turns to substance misuse, with alcohol and drugs, as a form of escapism, and to give him a false sense of confidence.  He was intoxicated and under the influence of drugs on this occasion. 

4.        The Crown have applied the factors set out in Harrison-v-AG [2004] JLR 111, which we accept, and in light of the clear and well-established policy of the Court in relation to knife crime, seek a sentence of 2 years 8 months' for the grave and criminal assault and this from a starting point of 4 years, and a further 3 months' for the breach offences to be served consecutively. 

5.        In terms of mitigation we have considered all of the submissions put forward by Mr Bell.  The defendant has pleaded guilty, for which he must receive credit.  He appears genuinely remorseful and that is supported by the psychologist, who has reported on him.  He has written to us a letter of remorse.  He says in that letter that "he can't remember much of that day.  But that he had been provoked verbally by [the victim]", who he knew "over his three year-old daughter who has health problems."  Even if that is true it would not, in our view, go anywhere near justifying this assault. 

6.        We welcome the steps you have taken in prison to turn your life around.  However, in our view, this was a cowardly and foul attack upon a sleeping and vulnerable homeless person in a public place.  In our view the conclusions of the Crown are correct.  

7.        On Count 1; the sentence is 2 years 8 months' imprisonment.  In relation to the breach offences, possession of drugs; 1 month's imprisonment.  Drunk and disorderly; 1 month's imprisonment.  Refusing to obey the police; 1 week's imprisonment.  For drunk and disorderly; 2 weeks' imprisonment.  And the shoplifting; 3 months' imprisonment.  All sentences for the breach offences are to be concurrent with each other but the total 3 months' imprisonment will be consecutive to the sentence for the grave and criminal assault, which makes a total sentence of 2 years 11 months' imprisonment. 

Authorities

Harrison-v-AG [2004] JLR 111.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey (3^rd Ed).