Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2014]JRC204

Royal Court

(Samedi)

23 October 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Fisher, Marett-Crosby, Nicolle, Olsen, Liston and Blampied

The Attorney General

-v-

Lee Andrew Sim

Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial on 19^th September, 2014, on a charge of:

1 count of:

Grave and criminal assault (Count 1).

Age:  42.

Plea: Not guilty.

Details of Offence:

On Wednesday 25^th of December 2013, the victim was at 114 Hue Court, Hue Street, St Helier, celebrating Christmas with the Crawford family.  Also present at the address was the defendant Lee Sim and his mother.  They had all consumed alcohol in celebration of Christmas day. 

During the course of the evening the victim noticed the defendant arguing with his mother, June Sim.  He spoke to Mrs Sim and asked her not to argue with her son in someone else's home.  The defendant took exception to this. 

In the early hours of 26^th December, the victim and the defendant were the only people awake in the premises.  The victim was in the kitchen when he saw the defendant go to a drawer and remove a kitchen knife, which had a black handle.  Without any warning, the defendant then stabbed the victim once in the right side of the chest under his right arm.  

The victim sustained a 1cm incised wound to the skin of the front of the right side of the front chest, consistent with a stab wound.  The victim stated the wound was 4" deep, although not confirmed by medical evidence.  He was flown to Southampton Hospital for a CT scan (the CT scanner in Jersey was not working) and it was established that surgery was necessary.  That surgery had to be performed in Southampton due to there being no Cardiothoracic Unit in Jersey.  The blood clot in the pleural cavity between the chest wall and the lung was removed.  The victim was flown back to Jersey on 30^th December, 2013, and discharged from hospital.  

The scene of the incident at 114 Hue Court was secured and a search of the kitchen area by police officers resulted in the recovery of two knives, one of which had the handle missing.  The blade of this knife was subsequently linked, via the presence of DNA material, to the victim and confirmed as the knife used to stab him.  The missing handle of the knife was never recovered, despite an extensive search of the premises and surrounding area.  It was, on the Crown's case to the jury, taken from the scene by the defendant and a deliberate and calculated move to dispose of the evidence linking him to the assault.  

About 4am, that morning, the defendant made his way to Rouge Bouillon Police Station where he was arrested on suspicion of committing a grave and criminal assault.  He was cautioned to which he replied, "I'm fucked".  His clothing was then seized by police officers and he was detained until sober enough to be interviewed.  Whilst being booked into custody, Sergeant Paul Kemp asked the defendant if he understood why he had been arrested and he made the reply "lost the plot".  He was later asked by the officer if he understood why he was at the police station.  The defendant replied, "I'm not stupid Paul". 

Later that day, when sober, the defendant was interviewed under caution, where recollected his presence at the party and described an argument with the victim but claimed that everything after that was a "blur".  He claimed during this interview that he was undergoing neuro-investigation due to suffering from blackouts.  Following interview the defendant was released from custody pending further enquiries by the police. 

At trial, the victim suffered a sustained attack on his character, having had the fact and details of his conviction for perverting the course of justice in 2011 put to him, he was repeatedly called a liar in Court.  The defendant maintained that he had not stabbed the victim and accused him, through his Counsel, of stabbing himself.  The defendant claimed that the victim had fabricated the whole incident in order to 'frame' the defendant.  

Furthermore, prior to the trial, the defendant had suggested that the victim suffered from a psychiatric illness and made repeated requests for the victim's personal medical records.  The victim initially declined, on the grounds that his records were personal to him and contained sensitive medical information.  Shortly before the trial, the victim consented to disclosure of his relevant medical records.  At trial, the defendant relied heavily on the fact that the victim had taken an overdose some years earlier and he faced robust cross examination in respect of his mental health. 

On 19^th September, 2014, after a two day trial, the defendant was convicted by the jury by a majority verdict (11 to 1).  The defendant showed no remorse and continues to deny the offence. 

Details of Mitigation:

The defendant had little mitigation available.  He did not have the benefit of credit for plea and was convicted following a two day trial.  

The principal mitigation available to the defendant was his personal circumstances.  The report from Ruth Emsley, a Forensic Psychologist stated, "Mr Sim has been found guilty by the Court of Grave and Criminal Assault against the victim by stabbing him in the chest with a knife.  However, currently he continues to deny responsibility for this offence.  Unsurprisingly, given this current stance, Mr Sim demonstrates no remorse or victim empathy for the violent act of which he has been found guilty."

The defendant produced numerous character references, which were taken into consideration.  

The Defence urged the Court to treat the case as 'exceptional' due to the defendant's numerous medical conditions and low intellect (IQ of 65) and impose a non-custodial sentence.  

Previous Convictions:

Historic and of little relevance.  The defendant had a conviction for possession of an offensive weapon in 1993, where he used an iron bar to cause malicious damage.  His most recent court conviction was in 2002, where he appeared before the Magistrate's Court for the offences of drunk and disorderly and causing a breach of the peace.  In 2008 he was cautioned at the Town Hall, for the offences of possession of cannabis and drunk and disorderly behaviour. 

Conclusions:

The Crown referred to the factors in Harrison v AG [2004] JLR111 to make an assessment of the seriousness of the offence. 

(a)     The nature of the deliberation with which the assault was carried out.  In this regard the Crown notes that the defendant went to the kitchen, and deliberately armed himself with a knife. 

(b)     Whether or not the blow was aimed or random.  This was a single wound aimed at the defendant's chest, a part of the body to which the risk of serious injury or worse was obvious. 

(c)     Whether the incident arose as a result of loss of temper or was committed in cold blood.  It appears to be in the former. 

(d)     The degree of force used.  This was sufficient to penetrate the clothing and the skin and deep enough to cause internal bleeding and the risk of lung damage.  

(e)     The nature, extent, gravity and permanence of the injury.  In this regard a full recovery is anticipated.  This was no thanks to the defendant, who showed a disregard for the well-being and life of his victim. 

(f)      If a weapon was used, the nature of such weapon.  A sharp kitchen knife was used. 

(g)     Whether the weapon was carried or was seized on the instance.  The weapon was obtained from the kitchen and obtained, it appears, for the purpose of stabbing the victim. 

(h)     How many people were concerned in the assault.  This has no application on these facts. 

(i)      The nature and extent of any provocation offered by the victim.  The victim denies any provocation and even on the account of the defendant any provocation was verbal and not physical. 

(j)      Whether the defendant has a record of committing the same or similar offences or constitutes a danger to himself or to the public.  Although the defendant has no record of committing similar offences, he has previous convictions that demonstrate a loss of control and display of violence. 

The Crown contended that the use of a knife in any circumstances to commit an offence of violence was very serious - whether in a nightclub, in a public house, or the home.  A loss of control through self-induced intoxication - drunkenness - was an aggravating and not mitigating factor. 

In considering the starting point, the Crown took guidance from the case of AG v Gladwin [2007] JRC 196 (upheld on appeal), which involved a single stab wound, where the Court stated (at para. 3): "The Court has always found starting points, in relation to grave and criminal assaults, a particularly difficult aspect, but we have tested the conclusions by asking what would have been the right sentence had you pleaded not guilty, and we think that a 6 year sentence for you, with your mitigation on a not guilty plea, would have been the right sentence.  It follows that we are satisfied that 4 years is the correct sentence."

Given all the aggravating factors present, the Crown submitted that the appropriate sentence was one of 5 years' imprisonment from a starting point of 6 years' imprisonment.  

Starting point 6 years' imprisonment.

Count 1:

5 years' imprisonment.

Forfeiture and destruction of the knife sought.

Sentence and Observations of Court:

The Court described the assault as a serious stab to the chest, which the jury accepted was unprovoked.  The defendant left the premises in the words of the victim 'to bleed to death'.  The single stab wound resulted in a blood clot in the cavity between the lung and chest wall, which necessitated treatment in Southampton.  The victim is expected to make a full physical recovery.  The defendant denied the offence and was convicted by a jury.  At trial the defendant made a sustained attack on the victim's character.  The defendant continues to deny the offence and shows little remorse.  His previous convictions are historic and he has never been sentenced to a period of custody.  The reports show that he is of medium risk of re-offending.  The Court made reference to the authorities of Harrison, Gladwin and Mallet.  The Court took account of all of the available mitigation, including his low IQ of 65, his sound work record, his health issues and the large number of references provided.  The Court also took note of the effect that prison would have on the victim's son and mother.  However, the Court concluded that it was a serious assault aggravated by alcohol and the circumstances were not sufficient to warrant a non-custodial sentence.  The Court reduced the starting point from 6 years to 5 years and allowed a 1 year reduction for mitigation, resulting in a sentence of 4 years' imprisonment.  The Court ordered the destruction of the knife.  

Starting point 5 years' imprisonment. 

Count 1:

4 years' imprisonment.

Forfeiture and destruction of the knife ordered. 

R. J. MacRae, Esq., Crown Advocate.

Advocate F. C. Binet for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for one count of grave and criminal assault in which he stabbed the victim in the chest under his right arm.  The assault took place in the early hours of the morning of the 26^th December, 2013, in the kitchen of a home of mutual friends where they had all been celebrating Christmas.  Everyone was intoxicated to varying degrees and by the time of the assault, had gone to bed or were asleep leaving the defendant and the victim alone. 

2.        The defendant used a knife he had taken from a kitchen drawer.  According to the victim, whose evidence was clearly accepted by the Jury, the assault was completely unprovoked.  The defendant left the premises immediately after the assault, leaving the victim, in his words "to bleed to death".  The host, who had been dozing in a chair in the lounge, heard the victim's cries for help and called an ambulance. 

3.        The injury was serious - according to the victim the knife went in some four inches although there is in fact no medical evidence to support that.  However, the victim developed a blood clot in the pleural cavity between the chest wall and the lung which had to be removed through surgery carried out in Southampton Hospital.  The victim has made a physical if not psychological recovery. 

4.        The defendant denied the offence and was convicted before a jury on 19^th September, 2014.  His defence did involve a sustained attack upon the character of the victim.  The defendant continues to deny the offence.  He has a historic record but none for assault and no sentence of imprisonment has ever been imposed upon him.  He is assessed at a medium risk of re-offending. 

5.        The Crown have had regard to the factors set out in the Court of Appeal decision of Harrison v AG [2004] JLR 111 and have taken guidance from the case of AG v Gladwin [2007] JRC 196.  In that case, after an altercation between the defendant and the victim, the defendant had gone into the kitchen and got a knife before returning and stabbing the victim who was sitting on the sofa.  The stab wound was to the lower side of the back and caused serious injuries including a perforation of the bowel.  The victim required surgery and was in hospital for a month.  In that case the Court said this:-

"The Court has always found starting points, in relation to grave and criminal assaults, a particularly difficult aspect, but we have tested the conclusions by asking what would have been the right sentence had you pleaded not guilty, and we think that a 6 year sentence for you, with your mitigation on a not guilty plea, would have been the right sentence.  It follows that we are satisfied that 4 years is the correct sentence."

And that sentence was upheld on appeal. 

6.        In the case of Mallet v AG [2000] JLR 256 the Court held that the band of 3 to 5 years applicable in cases of grave and criminal assault refers to sentences actually imposed and not to the starting point after a trial.  In a case of grave and criminal assault where there has clearly been intent to cause serious harm, the starting point would be up to 8 years.  Although the offence of grave and criminal assault did not necessitate intent, when considering cases involving imprisonment for more than 3 years it was essential, it was held in Mallet, to establish whether there was intent as this would bear on the degree of culpability of the accused. 

7.        In the present case the Crown say the defendant clearly intended to cause serious harm.  He took the conscious decision to arm himself with a knife.  This element of forethought, however close in time to the subsequent attack, cannot be underestimated say the Crown, in assessing the seriousness of the offence.  It was, the Crown say, a stabbing to the chest with considerable force and the victim was fortunate not to have suffered more serious injury.  The Crown contends that any attack with a knife is potentially life threatening.  Despite having inflicted this serious injury and having seen the blood, the defendant left the premises making no effort to help his victim or summons an ambulance.  Given the aggravating factors present the Crown therefore submit that the appropriate sentence is one of 5 years' imprisonment from a starting point of 6 years. 

8.        Turning to mitigation, the defendant gets no credit of course for a guilty plea and because he continues to deny the offence he has shown no remorse.  His mitigation does lie in his personal circumstances all of which have been very clearly and ably set out for us by Advocate Binet.  He has been assessed as having a full scale IQ of 65 which is within the extremely low range at the first percentile.  This means that he is functioning at the same level as about 1% of his age cohort.  Despite this he has a sound work record, all of his working life, despite suffering from numerous health problems, all of which Advocate Binet has outlined to us.  We have also received a large number of references which speak well of the defendant.  Indeed as Advocate Binet has said, he is clearly a well-liked, kind and dependable man.  We have also taken into account the effect imprisonment would have on his son and on his mother who is in Court. 

9.        However this was a serious assault with a knife, aggravated by the defendant's intoxication and the policy of the Court is clear.  The circumstances of the defendant are not sufficient for the Court to take what would be a very unusual step of imposing a non-custodial sentence as an act of mercy.  We do however think that the starting point of 6 years is too high.  In our view the correct starting point is 5 years and, notwithstanding the not guilty plea and the lack of remorse, we are going to allow 1 year for mitigation. 

10.      You are therefore sentenced to 4 years' imprisonment. 

11.      We also order the forfeiture and destruction of the knife. 

Authorities

Harrison v AG [2004] JLR 111.

AG v Gladwin [2007] JRC 196.

Mallet v AG [2000] JLR 256.

Fowler v AG [2007] JLR N 23.

AG v Hodson [2009] JRC 043.

AG v Kittleson [2011] JLR N 8.

AG v Barbour [2012] JRC 102A.

AG v Falle [2013] JRC 109.