British and Irish Legal Information Institute

Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Jersey Unreported Judgments

You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Kean [2013] JRC 258 (23 December 2013)
URL: http://www.bailii.org/je/cases/UR/2013/2013_258.html
Cite as: [2013] JRC 258

[New search] [Help]

Inferior Number Sentencing - grave and criminal assault - assault - affray.

Before :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Nicolle.

The Attorney General

-v-

Brett Kean

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

First Indictment

1 count of:	Affray (Count 1).
2 counts of:	Assault (Count 2 and 3).

Second Indictment

1 count of:

Grave and Criminal Assault (Count 1).

Age: 36.

Plea: Guilty.

Details of Offence:

Count 1: Affray

Boxing Day, 2012 Kean attended at flat of an acquaintance and his pregnant girlfriend, and walked into the flat uninvited. Kean was asked to leave, he refused. Whilst Kean was forced out of the flat he shouted "I'll cut your fucking eyelids off". The acquaintance received minor cuts to the head during the struggle to remove Kean. Kean tried to get back inside, hitting the door, shouting abuse and mumbling. He tapped on one of the windows to the flat, and was described as having a crazed look and a wild grin. He tapped the window with a long thin metal object, approximately 9-12 inches long. Kean returned to the door, kicked it two or three times and kicked in the lower uPVC panel which fell into the flat. Kean leant through the hole and verbally abused the acquaintance who was shaken up.

Count 2 - Assault

On 9^th March, 2013, Kean's partner drove him into town. When she parked, Kean became angry at her choice of car park pushed his head against the left side of her forehead, pushing her up against the driver's side window and repeatedly threatened to kill his partner who was in pain and feared for her safety.

Count 3 - assault on a prison officer, HMP La Moye - 14^th May, 2013.

Whilst Kean was on remand at La Moye he became verbally aggressive to another prisoner and put his face right into the prisoner's. Kean used the palm of his hand to push the prisoner in the right shoulder, causing him to take a few steps backward. The prison officer turned and saw Kean running towards him with his fists clenched. Kean shouted obscenities at the men and had a plate/bowl in his left hand. Kean raised his right fist so the officer crouched down, protecting his head with his hands. Kean punched him once to the area above his right ear and along his cheek bone.

Count 1 Second Indictment - grave and criminal assault.

20^th October, 2013, Kean was placed in CCU at La Moye due to his violent behaviour. In the preceding week Kean had made threats to kill, slash and stab another prison officer saying "if I see you on the outside I will smash your face in". Kean asked to wash his hands before eating, and was allowed to do so. He became verbally abusive to the officer calling him "a piece of shit" saying "I could easily have you". Kean prodded the officer in the stomach and said "look, you fat bastard". The officer lifted his hands in the air in a protective stance and took a step towards Kean, pushing him back into his cell by placing a hand on each of Kean's shoulders. Kean gripped the edge of the cell door with both hands, preventing it from being closed. The officer took hold of the door with his left hand and placed his right hand on the frame. Kean let go of the door and pushed it closed. The door slammed on the officer's hand. As it bounced open the officer was able to remove his hand. The cell door was then locked whilst Kean continued to shout abuse. Kean admitted to being reckless. The officer sustained a fracture to his right middle finger, four puncture wounds to his knuckles, one puncture wound below his little finger, severe swelling, and bruising.

Breach of Magistrate's Court probation order

12^th June, 2013, the Magistrate imposed a 12 month Probation Order on Kean in relation to offences of taking and driving away, driving without insurance and failure to report an accident. The offences on the First Indictment were committed in breach of this order.

Details of Mitigation:

Guilty pleas once the issue of fitness to plead had been dealt with. Ongoing complex mental health issues.

Previous Convictions:

Convictions for 34 offences, including three offences of violence.

Conclusions:

First Indictment

Count 1:	12 months' imprisonment.
Count 2:	6 months' imprisonment, consecutive to Count 1.
Count 3:	6 months' imprisonment, consecutive to Count 1.

Second Indictment

Count 1:

15 months' imprisonment, consecutive to First Indictment

Total: 39 months' imprisonment.

Breach of Magistrate's Court Probation Order - no separate penalty.

Sentence and Observations of Court:

Insufficient allowance given for mental health issues thus reduced the conclusions.

First Indictment

Count 1:	9 months' imprisonment.
Count 2:	6 months' imprisonment, consecutive to Count 1.
Count 3:	3 months' imprisonment, consecutive to Count 1.

Second Indictment

Count 1:

15 months' imprisonment, consecutive to First Indictment

Total: 33 months' imprisonment.

Breach of Magistrate's Court Probation Order - no separate penalty.

Ms. E. L. Hollywood, Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1. You are here to be sentenced on a First Indictment containing one count of affray and two counts of assault, one on your girlfriend and the second on a prison officer while you were in custody; and on a Second Indictment containing one count of grave and criminal assault, on a different prison officer again while you were in custody. In the latter case you recklessly slammed the door on the officer's hand causing a fracture to his right middle finger. The other two offences, fortunately, did not result in any serious injury.

2. In considering the right sentence for these offences, and you will know from the amount of time we have been out talking about it that we have found this a difficult process, we take account of these principles:-

(i) Drunkenness, which was a factor in the first offence of affray, is an aggravating factor;

(ii) Domestic violence, the violence that you showed to your girlfriend in Count 2, is an offence which usually calls for consideration of a custodial sentence. The Court is determined to add its weight to the other law enforcement initiatives from the police and others which have focussed on the need in this community to make every effort to reduce domestic violence offences;

(iii) The assault on your girlfriend took place while you were on bail for the offence of affray, and that is an aggravating factor;

(iv) Assaults on prison officers normally call for consecutive sentences of imprisonment. Prison officers are entitled, as far as possible, to the protection of the Court in the performance of their duties, and here the officers had done nothing to prompt your anger or your attention; and

(v) When consecutive sentences are imposed the Court must then have regard to the proportionality of the overall sentence, the totality principles.

3. In mitigation, the things that can be said for you - we have noted your very prompt guilty plea, we have noted you have spent a considerable period in custody pending your sentence, and although you have a number of previous convictions the offences of violence took place 12 or more years ago, so quite a long time ago. We have also noted your personal circumstances including the mental health difficulties which may well have had an impact on your offending.

4. The affray offence must have been very frightening for the victims, the domestic violence offence likewise, but we think probably in the conclusions the Crown have given insufficient attention to the mental health difficulties and accordingly we are going to sentence you as follows. On Count 1; 9 months' imprisonment, on Count 2; 6 months' imprisonment, on Count 3; 3 months' imprisonment; on Count 1 of the Second Indictment, 15 months' imprisonment. They will each run consecutively which makes a total of 33 months' imprisonment. There will be no separate penalty on the breach of probation.

5. We have sentenced you for the offences which you have committed but it has been a worry to us that you have stopped taking your medication. In a nutshell we do not think that all of the medical men can be wrong so while you do not accept it, what we would say to you as a matter of logic is that if numbers of people are saying the same thing to you it may be that there is something in what they say and we would strongly recommend you to think again about taking the medication because that will help you to stay on an even keel in the future.

6. You are sentenced to 33 months' imprisonment in all.

Authorities

AG-v-Burrell and Others [2003] JLR N 53.

AG-v-Burrell and Others [2003] JRC 209.

Harrison-v-AG [2004] JLR 111.

AG-v-Phillips [2009] JRC 193.

AG-v-Horn [2010] JRC 104.

AG-v-Capuano [2004] JRC 099.