Jersey Unreported Judgments

Inferior Number Sentencing -assault.

[2013]JRC176

Royal Court

(Samedi)

10 September 2013

The Attorney General

-v-

Sean Michael Peter Smale

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Age:  31.

Plea: Guilty.

Details of Offence:

In a case of domestic violence the defendant committed three common assaults against his then partner (the victim) (Count 1A-3 on the Indictment).  First assault occurred when the victim was spending evening at defendant's flat, both parties were drinking alcohol.  Accusations were made by both about infidelity.  Defendant became increasingly agitated, grabbed the victim by the hair, pulled her around to the back of the settee, grabbed her legs and dragged her along the floor dragging her by the ankles out onto the landing (Count 1A).  Second assault occurred a week later again at the defendant's flat.  The defendant and the victim shared two bottles of wine which the defendant had bought earlier.  Again accusations of infidelity arose.  As the victim was preparing to leave the defendant's flat, she picked up a half full bottle of wine from the table, the defendant thought the victim was taking the bottle to deprive him of it rather than to drink it herself, and tried to grab it back from her.  A struggle between the two ensued during which the defendant, in trying to reclaim the bottle, recklessly clipped the back of the victim's head with the bottle which caused her a relatively minor injury.  The victim, shocked, collected her belongings and ran out of the defendant's flat (Count 2).  A few hours later during the early hours of the next day the defendant and the victim met up again, the defendant by this time was intoxicated.  As the victim and defendant walked into the defendant's flat another argument about infidelity ensued.  The defendant moved towards the victim, grabbed her arms and told her to leave.  He pulled the victim down the stairs aggressively by her arms then dragged her down the stairs onto the landing where he left the victim lying on the carpet screaming.  He then grabbed her by her ankles and dragged her along the floor to the front door.  The defendant went back upstairs, grabbed the victim's bag and threw the bag onto the street (Count 3).  The victim left the premises and telephoned the police.  The victim suffered minor injuries from the three assaults.  The defendant denied assaults in interview and entered not guilty pleas.  The matter was initially charged with two grave and criminal assaults and one assault and listed for jury trial (Count 1 was grave and criminal assault and Count 2 was initially from grave and criminal assault).  The defendant entered plea to common assault on basis agreeable to Crown two days before the trial. 

Details of Mitigation:

Very good employer's reference who remained supportive of the defendant and would provide him with employment on release.  Guilty plea two days before trial (prevented need of victim to give evidence). 

Previous Convictions:

Defendant had 10 previous convictions, including four offences against the person.  His most recent conviction was in August 2011 for grave and criminal assault on a female victim and an assault on a man who asked him to keep the noise down at night. 

Conclusions:

As the defendant had initially entered not guilty pleas this case had been listed for trial before his late plea of guilty to assault.  The defendant had thus served the equivalent of 10 months 4 days by the time of sentencing.  If moving for a custodial sentence the Crown would have been considering 12 months. 

However, in light of time served and facts of case Crown considered interests of justice best served by defendant addressing his issues and behaviour by virtue of probation order and conditions.  Another few weeks in prison would not allow the offending behaviour to be addressed.  Crown agreed with probation officer's recommendation and moved for the following on Counts 1A, 2 and 3 to run concurrently.  

Total:  12 months' Probation Order together with a 12 month Treatment Order.

With the following conditions attached:-

(a) Is assessed for suitability for the ADAPT course;

(b) Is assessed for other group work;

(c) Is risk-assessed by a multi-agency panel; and

(d) Carries out work to reinforce good decision-making skills and consequential thinking during one-to-one sessions. 

Exclusion Order sought for a period of 12 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.

Sentence and Observations of Court:

In light of the time served the Court granted the Crown's conclusions on all counts including the Exclusion Order.  However if the defendant had been sentenced to a term of imprisonment the Court would have increased the suggested sentence of 12 months referred to by the Crown.

Conclusions granted.

Ms E. L. Hollywood, Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for three counts of common assault, arising out of domestic incidents which took place in his flat when the victim of the assaults, with whom he was in a relationship, visited him.  The assaults arose after a drink-fuelled loss of temper on the defendant's part over allegations of mutual infidelity in which, amongst other things, the victim was physically dragged by her feet in one case from his flat and in another down the stairs outside his flat.  No serious injuries were incurred but the defendant's conduct constituted violent abuse which must have been very frightening for the victim and which is socially unacceptable.  As the Court has said on frequent occasions domestic violence will always be treated seriously.  These assaults represented a pattern of aggression in a relationship that had become unsustainable and unhealthy and which both have now said is over.  In the view of the Probation Department, should they reconcile there is a high risk of further incidents.  According to the probation report the defendant does not display any remorse or victim empathy for these assaults.  

2.        According to Whelan on Aspects of Sentencing in the Superior Courts of Jersey there is a de facto range of between 1 and 12 months for common assaults and the Crown ordinarily would have moved for a sentence of 12 months, concurrent on each count.  However, the defendant has been in custody for 205 days, which is the equivalent of a sentence of 10 months and 4 days and, assuming good behaviour, such a sentence now would lead to his imminent release without him having an opportunity to fully address the issues which clearly confront him.  Instead the Crown move for a Probation Order as recommended by the Probation Department, so the defendant can benefit from a 12 month treatment programme with the Alcohol and Drugs Service and so that he can be assessed for suitability for the ADAPT course, be assessed for other group work, if necessary referred to Mental Health Services, be risk assessed by a multi-agency panel, and carry out work to reinforce good decision-making skills and consequential thinking during one-to-one sessions. 

3.        In terms of mitigation the defendant did plead guilty, albeit it only 2 days before the trial and he has a very good reference from his employer, who is still very supportive of him and is holding  employment out for him. 

4.        In our view the defendant's conduct would have justified a sentence of more than 12 months' imprisonment bearing in mind his previous record for violence and, in particular, his conviction in 2011 of a very serious grave and criminal assault on a defenceless woman.  However, we have determined to accept the recommendation of the Probation Department and the conclusions of the Crown because, firstly, the defendant has already served the equivalent of a 10 month sentence, and secondly, it allows the defendant to address the issues with the expert assistance of the Probation Department and the Alcohol and Drugs Service.  We are also going to grant the Exclusion Order sought by the Crown as we are satisfied that the defendant's consumption of alcohol was a contributing factor in these offences. 

5.        In terms of the sentence we impose it is as follows; on Count 1A;  12 months' Probation Order with the conditions as set out in the social enquiry report and in particular a Treatment Order, Count 2;  12 months' Probation Order, concurrent and Count 3; 12 months' Probation Order, concurrent, all on the same conditions.  Furthermore, we exclude you from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises, other than the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the ferry terminal at Elizabeth Harbour and the Opera House, for a period of 12 months from today. 

6.        We were pleased to see, Mr Smale, that in your discussions with the Alcohol and Drugs Service that you have recognised the difficulties that you face and we do feel this really is an opportunity for you now to address those issues and we very much hopethat you will do so and I am sure you understand that if you were to breach the Probation Order that we have just imposed, you will be returned to this Court and could well be imprisoned.  We very much hope that you are able to address the issues that you have. 

Authorities

Whelan on Aspects of Sentencing in the Superior Courts of Jersey.

AG-v-Vaughan (no citation).

Harrison-v-AG [2004] JLR 111.

Le Feuvre-v-AG 1996/79 - [1996] JLR N9b.

AG-v-Horn [2010] JRC 104.

AG-v-Smale [2011] JRC 156A.