Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault - affray.

[2014]JRC054

Royal Court

(Samedi)

28 February 2014

The Attorney General

-v-

Mikael Artur Wasiela

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

Age:  22.

Plea: Guilty.

Details of Offence:

On 11^th August, 2013 the defendant and the female victim were both at the Havana Club.  The defendant groped her bottom. She was distressed and made an immediate complaint to Police Officers who were outside the club.  On 22^nd September, 2013, the defendant met Ms A and two others at Mimosa.  They were all was invited back to Ms A's flat to continue the evening.  Ms A's boyfriend, the male victim, arrived home. The defendant became aggressive and violent, apparently motivated by jealousy.  He punched the male victim in the face causing a cut and a swollen black eye.  The defendant also struck out using fists and his knees, which blows were deflected.  The male victim did not retaliate.  The male victim retreated into a bathroom.  The defendant then took a large knife from a drawer in the kitchen and approached the bathroom, shouting for the male victim to come out.  He stabbed the bathroom door using the knife.  Ms A was terrified and scared that the defendant would stab someone.  In interview, the defendant immediately admitted to hitting the male victim and to using the knife.  He maintained that he had not intended to inflict injury with the knife, but admitted that he would have punched the male victim again. 

Details of Mitigation:

Crown: guilty plea, low risk of reconviction, regret and remorse.

Defence: ashamed of his behaviour, offers apologies.

Previous Convictions:

One previous conviction in Poland for theft. 

Conclusions:

Total: 18 months and 6 weeks' imprisonment.

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements, to commence from the date of conviction, sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Total: 210 hours' Community Service Order, or 15 months' imprisonment in default.

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 3 months elapse before the accused is permitted to apply to no longer be subject to the notification requirements, to commence from the date of conviction, sought.

Exclusion Order on 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and 7^th category licensed premises for 12 months from today's date.  Excludes premises that sell food and permitted to enter such premises for the purpose of work with the condition that he not consume alcohol on the premises.

No recommendation for deportation made.

C. M. M. Yates, Esq., Crown Advocate.

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

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on two counts on the Indictment, the first count is that of indecent assault which took place in the summer of last year in the Havana Club in Bath Street.  The complainant was walking away from the bar when you approached her from behind, you grabbed her with your left hand on the buttocks and she pushed you away and immediately confronted you about your actions.  A security officer stepped in, you left the club and she followed you, and outside she made a complaint, immediately, to a police officer.  The complainant was very emotional, was said to be shaking and crying.  The Crown accept that this was an indecent assault at the lowest end of the scale.  The assault was obviously unwelcome but the Court notes that there was no assault under the clothing; it was an assault on the buttocks and not any more sensitive anatomical part; it was in public; there was one incident; there was no injury; a security officer was present; and the complainant cannot logically or objectively have been frightened.  It was not clever and it was not acceptable behaviour, but it was a very minor offence.  The offence, in the Court's view, does not merit a custodial sentence and we are not going to impose any separate penalty on it.

2.        As a result of this offence we are obliged under the Sex Offenders (Jersey) Law 2010 to place you on the register as a result of which you are subject to the notification requirements.  We have to say that we do not think it is necessary or appropriate that you be placed on the register at all, but we must place you on the register because we are charged by the statute to do so.  We note from the probation officer's report that the assessment is that you do not pose a significantly raised risk of serious harm through further sexual offending.  We do not share the probation officer's view about the nature of the indecent assault, as we have made plain.  We do not consider that you do pose a risk of serious harm through sexual offending, on the information that has been given to us so far and in the exceptional circumstances which apply we are going to reduce to 3 months the period which must expire before which you can apply to be removed from the notification requirements.

3.        Count 2 is an altogether different matter.  You are here charged with an affray which involved not only a punch to a male complainant, causing injury to his eye, but following that punch and under the influence of drink still, you went to fetch a knife from the kitchen and while the male complainant was locked in the bathroom you brandished the knife and, at least once, struck it into the door of the bathroom.  As the Court has said on many previous occasions unless there are some unusual circumstances the Court is determined to treat knife crime seriously and impose a custodial sentence as a result. 

4.        In this case the Court is divided as to whether a custodial sentence should be imposed.  On the one hand there was the use of the knife which is extremely serious.  It was brandished in somebody's home which ought to be a place of security for them.  We have no doubt at all that the female complainant in relation to the affray, who was not the same person as the complainant on the indecent assault, must have been very frightened and it was taking account of those features that one Jurat considers that a custodial sentence was right.  The other Jurat takes the view that there is a difference between this case and the two cases to which the Crown has referred us, because there is no doubt that there was the absence of any direct threat as a result of the brandishing of the knife, which was not the case in the other two cases, and that was despite the fact that you had been drinking heavily.  There is clear evidence of your remorse and we have read carefully the letters which you have sent to us.  Particularly relevant is that you are still a young man and at the time of these particular offences you were only just 22.  In the circumstances of your full employment that Jurat considers that the matter can be dealt with sufficiently and appropriately by imposing a sentence of community service.

5.        With some hesitation, because as I have said the Court always treats knife crime extremely seriously, I will agree with the Jurat who suggests community service.

6.        You are sentenced on Count 2 to 210 hours' community service, and the alternative sentence that we would have imposed would have been 15 months' imprisonment.  So I must warn you if you do not perform the community service or if you commit any other offences and are in breach of that order you are liable to be brought back here and can be sentenced again and the Court might well be looking at the custodial sentence instead.

7.        In addition to the community service order we are going to impose an exclusion order, that means you are going to be excluded from attending in licensed premises other than shops that sell food, and other than the usual exclusions for the harbour, airport, the opera house and the cinema centre.  The exclusion order does not prevent you from attending at your work but only for the purposes of your work and you are not permitted to drink on those premises.

8.        We now turn to the question of deportation.  For the reasons that are apparent from the remarks on sentencing we do not think this is a case for deportation.  We note that you have been here nearly 3 years, you have been consistently employed, there have been no previous difficulties and we note particularly your remorse.  We do not think the first part of the test in Camacho-v-AG [2007] JLR 462 is met and that therefore we do not have to consider anything further.  We are not going to make a recommendation for deportation in this case.

9.        Nonetheless you will recognise that you are a visitor to this Island - visitor in the sense that you are not British and therefore a Court can always consider matters of deportation if you were to get into trouble.  We welcome visitors to the Island.  We welcome people to come and settle here lawfully but they must behave in accordance with the law.  We think you realise that and I just warn you that, in case we are wrong about that and you do not, that possibility is always there for the future.

10.      In those circumstances you are sentenced in all to 210 hours' community service with the exclusion order of 12 months.

Authorities

Sex Offenders (Jersey) Law 2010.

Camacho-v-AG [2007] JLR 462.