Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC175

Royal Court

(Samedi)

6 September 2013

The Attorney General

-v-

Matthew Anthony Sartin

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

Age:  22.

Plea: Guilty.

Details of Offence:

The grave and criminal assault consisted of a single kick to the head of the victim, who was on the ground, in Mulcaster Street, late at night, and was an incident in which both victim and defendant were affected by alcohol.  The victim had been aggressive towards Sartin and friends over a period of about half an hour; police had given both words of advice at the beginning of that period after a minor scuffle, then sent off in opposite directions.  Further scuffle when the victim came across the group again, from which Sartin retreated.  The victim walked off then returned, tried to get at Sartin but prevented by other members of the group.  Police went to restrain the victim but he escaped from the officer's grasp.  Sartin grabbed hold of the victim by clothing and both fell to the ground.  As two police officer's moved to detain the victim, Sartin got up, took a pace backwards, threw a kick at the victim which contacted his head.  Police officers who had hold of the victim saw shoe make sharp contact with the victim's chin and stated the victim was then "out of it for about 20 seconds."  Sartin ran off but was detained a short distance away; thereafter cooperative.  Victim refused to attend A&E at that time and did not wish to make a formal complaint; attended A&E in the morning and later gave statement to police allowing them to access medical report, confirming no complaint forthcoming, stated he had been drinking since early afternoon and could remember nothing of events.  Injury recorded at A&E as minor bruising to jaw. 

Review of police CCTV showed the victim had been in another scuffle and spoken to by other police officers between scuffles with Sartin and friends.  Recommendation that consideration be given to charging victim with public order offences not pursued as victim left Island shortly after incident. 

Details of Mitigation:

Totally cooperative.  Stated he consumed about six pints of cider and a few "shots" prior to the incident, had tired of victim's aggression and threats and, after falling to ground with victim, "saw red" as he got up, kicking out recklessly at victim.  Accepted kick struck victim's head and was totally uncalled for.  Distraught when shown CCTV footage of kick, immediate admission of guilt, genuine remorse.  Guilty plea on first appearance, maintained throughout.  Defence pleaded that under all the circumstances a custodial sentence was not warranted. 

Sartin had been continuously employed since leaving school, same employer 5 years, outstanding references.  Steady relationship with girlfriend of 3 years standing.  Assessed as very low risk of reoffending.  Offence appeared to be totally out of character.

Previous Convictions:

None.

Conclusions:

Notwithstanding the unusual feature of the case and the many supportive testimonials, references and letters submitted the Crown felt bound not to depart from the well-established policy of moving for a custodial sentence. 

Exclusion order sought for a period of 8 months excluding the defendant from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the ferry terminal at Elizabeth Harbour and the Opera House, should a custodial sentence not be imposed. 

Sentence and Observations of Court:

The Commissioner expressed dissatisfaction that the victim was not before the Court.  After due deliberation the Court concluded that it would not be appropriate to impose a period of community service, a direct alternative to custody, as the offence was at the lowest end of the scale and, in the interests of justice, should only attract a fine. 

Fine to be paid within two weeks. 

No Exclusion order made. 

Ms E. L. Hollywood, Crown Advocate.

Advocate J. R. Giovannoni for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for one count of grave and criminal assault, namely for kicking Elliot Querée once in the face causing a soft tissue injury with no evidence of a fracture.  The defendant had been drinking but this bare statement of the facts belies the true nature and circumstances of the case. 

2.        It is clear from the Crown's summary that Querée, who had also been drinking, was the person who that evening was acting in an aggressive manner, seeking out confrontation with the defendant, and many others, in a series of incidents from which the defendant did his best to retreat.  In the latter incident a group of people were preventing Querée from getting at the defendant who was standing some ten feet away with his back to him.  A police officer ran across to try and restrain Querée but he escaped her grasp.  He then charged through this group of people to get at the defendant.  In the ensuing struggle both Querée and the defendant fell to the ground, taking another member of the group with them.  Two officers then moved in to detain Querée, who they clearly regarded as the aggressor.  The defendant extricated himself from the melee, took a step back and kicked Querée once, who was on the ground, being held back by two police officers.  Querée refused to make a complaint or to go to Accident and Emergency, although he did attend the next day.  The defendant, realising the seriousness of what he had done, had panicked and run away and he was subsequently arrested.  He immediately expressed disgust, shame, and remorse for what he had done. 

3.        The defendant is 22 and he has been in steady employment since 2008.  He has no previous convictions, and has a very supportive family, partner and friendship group.  He has outstanding references.  He is assessed at a very low level of reconviction.  It is clear that he rarely drinks to excess and on this occasion his drinking was out of character. 

4.        Notwithstanding the Crown's acceptance that the whole incident arose as a result of the aggressive and provocative conduct of Querée, it seeks a sentence of 12 months' imprisonment.  The Crown accepted that Querée should have been charged with offences but he has apparently left the Island. 

5.        In the case of AG-v-Passman and Passman [2007] JRC 230 the Royal Court said this:-

"Notwithstanding the powerful mitigation put forward and the effect that custody will inevitably have on the defendants, the policy of the Court is clear and we wish to reiterate that alcohol fuelled violence on the streets of St Helier is unacceptable and will not be tolerated.  The Court has tried to make this policy clear on many occasions and it will continue to do so."

6.        We do not wish to detract in any way from this but in our view the provocation here was exceptional.  The defendant was not acting aggressively or violently in general, quite the opposite; it was the defendant who backed away from confrontation.  The police clearly regarded Querée as the person who was drunk and violent as they tried to restrain him, but he escaped their restraint and charged through the group to get at the defendant.  After the melee it was Querée who the police were trying to restrain, but the defendant did momentarily lose control and give Querée this one kick, for which he is genuinely remorseful.  The kick did not cause any serious injury; indeed Mr Querée appears to have been unaware that he had been kicked. 

7.        In view of these exceptional circumstances we would not consider passing a sentence of imprisonment on the defendant, and pursuant to Article 2(3) of the Criminal Justice (Community Service Orders)(Jersey) Law 2001, we could not, therefore, impose a Community Service Order as it is a direct alternative to imprisonment.  This offence is at the very bottom end of the scale of grave and criminal assaults but it is still an offence for which the defendant must be punished.  In our view justice in this case is met by the imposition of a fine and this to register the Court's disapproval of the defendant's momentary loss of control. 

8.        The defendant will therefore be fined £500 with 2 weeks in which to pay.  There will be 5 weeks' imprisonment in default of payment.  We are not going to make an Exclusion Order. 

Authorities

AG-v-Passman and Passman [2007] JRC 230.

Criminal Justice (Community Service Orders)(Jersey) Law 2001.

Harrison-v-AG [2004] JLR 111.

Whelan on Aspects of Sentencing in the Superior Court of Jersey (3^rd edition).

AG-v-Miller [2013] JRC 011.

AG-v-Sofaru [2012] JRC 128.

AG-v-Mills [2013] JRC 155A.

AG-v-Le Voguer and Others [2008] JRC 156.