Sir Michael Birt, Kt., Bailiff, and Jurats Morgan and Olsen.
David Benjamin Hanby
The Attorney General
Advocate P. G. Nicholls for the Appellant.
J. C. Gollop, Esq., Crown Advocate.
1. This is an appeal by Mr Hanby against a sentence of 5 months' imprisonment, imposed by the Magistrate on 26th February, for one offence of common assault.
2. The facts are really very unusual. The appellant is a 25 year old and he has never been in trouble before. On the night in question he had been out drinking; it is quite clear that he was extremely drunk. He had been to a party, he then moved on to the Watersplash and thereafter he went back to a party in someone's house in St Ouen, he does not know where that house is and had not been there before. He eventually left that house just before 5am, it was pouring with rain. In circumstances, which he cannot now recall, he next entered the house of the victim, just before 5am. The door of the house was not locked and the light was on, which perhaps attracted his attention.
3. The victim is a woman and she was sleeping downstairs as she was shortly to move out of the premises and furniture was being moved around. Her daughter was sleeping upstairs, together with a friend who was staying over; they are aged 7 and 10. The victim awoke to find the defendant in her house. She asked him to leave, but he refused. She then said "if you don't get out I'll call the police" to which he replied "well you can call the police" and that is what she did, and she did it in his presence. We have heard the recording of the conversation between the victim and the police control; it lasted some 12 minutes and, like the Magistrate, we would like to commend the calm and comforting conduct of the police officer who was on control.
4. Two things emerge from that recording. First it is clear that the victim was terrified. This is not surprising; a drunken and at times abusive man was in her house; she was not to know what he might do next. The second thing which emerges from the call, however, is that at no stage did he threaten her, either physically or verbally, although he was abusive at times. At one stage he fell over and lay on the floor (as she reported it to the police); at another time he went out and then came back in; much of the time he was talking incoherently to himself. Just before the police arrived and she was being told by the control that they should be there any moment, the victim went out. The appellant followed her and it is at that stage that he grabbed her by the shoulders from behind. This was done in full view of the police and he was immediately arrested. However, the police witness does say that he heard the appellant, as he grabbed the victim by the shoulders, telling her to "calm down". So it was not a case where he was uttering aggressive words or behaving in an aggressive manner at that time, albeit that he was grabbing her by the shoulders. In summary, in terms of the physical nature of this assault, it really was very much at the bottom end of the scale. The gravamen however, lies in the context, and in particular the prolonged fear that this appellant induced in the victim.
5. Advocate Nicholls submits that the sentence was wrong in principle, or manifestly excessive, being the two well-known grounds for this Court to interfere with a sentence imposed by the Magistrate's Court. He relies on the following matters:-
(i) He submits that the Magistrate was wrong when she stated that the nature of this assault was to place it at the higher end of the scale of common assaults; he says it should have placed at the lower end.
(ii) He says that she conflated the previous charge of breaking and entering, which had originally been brought, but had been withdrawn.
(iii) He says that she placed too much weight on the victim impact statement of the victim. We have read that and it is clear that the victim has indeed been significantly affected by what happened, and we have to say that that is hardly surprising.
(iv) He says that the Magistrate did not allow enough for the mitigation available to the appellant.
6. We can promptly dismiss the second and third of these points. The Magistrate stated that the breaking and entering charge had been correctly withdrawn, in other words, she clearly agreed with it. Her reference thereafter, to breaking and entering was simply in the context of illustrating the fear that people suffer when they find a stranger in their home. As to the third point, we see no evidence that she placed undue weight on the victim impact statement; she was perfectly entitled to have regard to it. That leaves the first and fourth points.
7. In terms of mitigation we agree that this was strong. The appellant pleaded guilty from the outset; more importantly he has no previous convictions and indeed it is clear from all the many references that he is of a positively good character; it is clear that he is full of remorse and is horrified by the distress and fear that he induced in the victim through his drunken behaviour; he is assessed by the Probation Service as being at low risk of re-offending, and they do not assess him as posing a risk of harm. We have read the references, we have also read the appellant's own letters and his willingness to enter into restorative justice measures if that was thought to be appropriate.
8. As to the gravity of the assault, we repeat that the actual violence in this case was minimal. But the context of it was the entry into a house at night and the fear caused. That is what makes it so much more serious. It is for that reason that despite all the mitigation, if the appellant had uttered a threat, or shown any intention to use violence, the Magistrate's sentence would have been correct and indeed a greater sentence would have been appropriate. But, in the unusual circumstance of this case, we must take into account what actually happened; the appellant was drunk and incapable, he did not utter any threats, he stumbled into a person's home, he made no sense while he was there, and it is accepted by the Crown that he did not have an intention to assault or cause fear, it all happened through recklessness.
9. In all the circumstances, given the very unusual facts and the very strong mitigation we have, after some discussion as will have been seen from the time we have been out, been persuaded that the sentence is too high to the extent that we should interfere. But, contrary to Advocate Nicholls' submissions, we cannot proceed by way of community service. If a man enters a stranger's residential property at night and commits an assault, however minor, he must expect a prison sentence. It is a wholly unacceptable thing to do, which causes great, great fear to those who are its victims, and the Court's sentence must reflect the public's concern about such matters. For that reason we want to emphasise that where a person enters a residential property at night, with an intention or willingness to commit an assault, then sentences well in excess of the Magistrate's jurisdiction will often be appropriate. But, as we say, that is not the case here, the facts of this case are really extremely unusual. We have been persuaded, as I say, that this appellant does not need to have imposed a sentence as long as the Magistrate has given, given his incapable condition that evening, and that fact that he offered no threats and intended no violence.
10. In all the circumstances, the sentence is reduced to one of 3 months' imprisonment; so we allow the appeal to that extent.