Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2014]JRC215

Royal Court

(Samedi)

10 November 2014

Before     :

P. J. L. Beaumont, Q.C., Commissioner, and Jurats Olsen, Tibbo, Le Breton, Morgan and Le Cornu.

The Attorney General

-v-

Neil William Bennett

Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial on 12th June, 2014, on a charge of:

1 count of:

Grave and criminal assault (Count 1).

Age:  49.

Plea: Not guilty.

Details of Offence:

The defendant was convicted by a jury of stabbing his business partner three times in what the sentencing court concluded was an incident of drunken anger.  The first of those stab wounds was the most serious, causing a-life threatening laceration to the victim's liver which required the victim to be airlifted to Southampton University Hospital where he was admitted for 8 days and underwent two surgical procedures to prevent further haemorrhaging.  The second two stab wounds to the victim's left rib cage were superficial. 

The incident happened at the defendant's home in September 2013, the victim was the defendant's business partner.  Between them they ran a retail clothing business from premises in St Helier.  The victim lived in the UK but had visited the defendant in Jersey to discuss with him the need to reduce overheads and clear unpaid rent.  The two men had spent the evening in St Helier before returning to the defendant's address.  Both had consumed a significant quantity of alcohol. 

Once home, the two men continued to discuss the business at the kitchen table.  The victim gave evidence that discussions were cordial.  At some point after the defendant's girlfriend had retired to bed, the defendant got up, walked across to the kitchen sink then came back and stood close to and over the seated victim.  Unnerved by this behaviour the victim rose to his feet and asked the defendant what was wrong and what he was holding in his hand.  The victim gave evidence that the defendant's demeanour had suddenly changed to one of "malevolence," "menace" and "as if no one was there."  The defendant then felt a blow to his right chest, saw blood and realised that he had been stabbed.  In the scuffle that ensured, the victim punched the defendant in the face in an endeavour to make him drop the knife.  This the defendant did, but only after stabbing the victim twice more in the left rib cage.  The defendant suffered a knife wound to his own upper right thigh - the prosecution asserted caused by the knife in his own right hand during the scuffle that followed him first stabbing the victim. 

The victim then fled into the street where a concerned neighbour called an ambulance.  The defendant was heard shouting and swearing inside the house.  The defendant was subsequently arrested and taken to hospital for treatment to the knife wound to his thigh.  In hospital he continued to show aggression to both the police officers guarding him and the medical staff treating him. 

Interview under caution, he first suggested he had no recollection of events, but then suggested that the victim had in fact attacked him.  At trial the defendant did not give evidence, but his advocate cross examined the victim on the basis that the victim had attacked the defendant with a knife in a fury because the defendant had refused to allow the business to be used to conceal cash from the victim's wife in divorce proceedings in England, and that having first stabbed the defendant in the thigh the victim somehow then stabbed himself three times in the scuffle that ensued. 

Aggravating features advanced by the Crown

Applying the principles set out in Harrison v AG [2004] JLR 111, at paragraph 120:-

(a) the offence was committed deliberately and with some degree of forethought, since on the evidence the defendant did not suddenly grab a knife in the heat of the moment and lash out at the victim, but had walked across to the kitchen sink area, armed himself with it, then stood over the victim apparently waiting for an appropriate moment to stab him;

(b) given this forethought and deliberation, and the close proximity between the defendant and the victim, the evidence indicated the defendant had deliberately stabbed the victim and deliberately stabbed him in the chest.  He had then persisted by stabbing the victim twice more in the ensuing scuffle.  He could not claim these further wounds had been inflicted in self-defence, since he knew the victim was trying to disarm him having been stabbed in the chest.  Applying Mallett v AG [2000] JLR 256, the Crown invited the Court to conclude that, and sentence the defendant on the basis that, he intended to cause serious harm, since the risk of causing such harm by stabbing someone in the chest - an area of the body containing several vital organs - would have been obvious to anyone. 

(c) the attack was committed in cold blood, given the victim's evidence at trial that the discussions had been cordial, that the defendant had given no indication of impending aggression before stabbing the victim, and the evidence suggesting forethought and deliberation on the defendant's part in arming himself with the knife and then standing over the victim as he sat, waiting for the right moment.  The Court disagreed and concluded that the assault arose as a result of a drunken loss of temper. 

(d) the degree of force used must have been to some degree significant, or the victim would not have described in evidence feeling a 'blow' to his right side, albeit the medical expert opinion evidence at trial was to the effect that a wound of this type in this location would have required only mild to moderate force, although greater force could not be ruled out. 

(e) the nature, extent, gravity and permanence of the injury - the injury was life threatening and grave.  It was, however, not permanent and the victim had made a full physical recovery. 

(f) the nature of the weapon used - the Crown was not able from the evidence to identify which, if any, of various knives recovered from the kitchen has been used.  All that could be said on the strength of the medical evidence was that the knife had to be long enough to have pierced the victim sufficiently deeply, ('several centimetres') to puncture the liver. 

(g) the knife was not seized in the instant, but collected with a degree of forethought and deliberation from the area of the kitchen sink. 

(h) not relevant. 

(i) the defendant had a previous conviction for violence.  Though much less serious, this had also been committed when in drink. 

Details of Mitigation:

Of the offence itself, the Court concluded that the assault had been committed in a moment of drunken anger.  Of the offender, the defendant produced a number of character references speaking to his good character as a businessman and a father to two daughters which the Court concluded showed he had led a worthwhile life in business and in raising children. 

Conversely the defendant was unable to pray in aid a guilty plea and thus could receive no credit.  He continued to protest his innocence and thus showed no remorse and no insight into his offending.  He was assessed as posing a low risk of reoffending by the probation service, albeit he posed a moderate risk of danger to the public. 

Previous Convictions:

One conviction for assaulting a man in a bar in June 2012, again whilst under the influence of alcohol, by punching him in the face, for which he had been fined £300. 

Conclusions:

Count 1:

Starting point 7 years' imprisonment.  7 years' imprisonment.

Compensation Order sought in the sum of £1,800. 

Sentence and Observations of Court:

Count 1:

Starting point 6 years' imprisonment.  5 years and 6 months' imprisonment.

Compensation Order made in the sum of £1,800 to be paid within 28 days or a default sentence of 14 days to run consecutively to Count 1. 

M. T. Jowitt, Esq., Crown Advocate.

Advocate G. A. H. Baxter for the Defendant.

JUDGMENT

THE commissioner:

The judgment of the Court is as follows. 

1.        The defendant, Neil William Bennett, was convicted on 12^th June, 2014, of one count of grave and criminal assault by a majority verdict of 10-2.  Today, after a lengthy adjournment in order to obtain fresh representation, he appears to be sentenced.  The Court is indebted to Advocate Baxter, who appears on his behalf today, but who did not appear at trial. 

2.        The offence was committed in the early hours of Saturday the 28^th September, 2013.  It took place in the defendant's home where, after the defendant had invited the victim, his friend and business partner Justin Sumrie, to spend the night after an evening together in the course of which both had consumed a substantial amount of alcohol. 

3.        According to the un-contradicted evidence of the victim given at trial, some hours after arriving at the defendant's house, and while he and the defendant were engaged in a cordial discussion about their business, the defendant took up a knife from somewhere in the kitchen and, approaching the victim who was seated at the kitchen table, stood behind him.  The victim rose to face the defendant asking what was in the defendant's hand, he described the defendant's demeanour as having changed, the words he used at trial were that there was now a menacing or malevolent expression on the defendant's face, it was "as if no-one was there".  He stood up to ask what was wrong, stepped back and next felt a blow to the right side of his chest, realised that he had been stabbed, and in the struggle that followed to get possession of the knife which had inflicted that injury, was stabbed twice more, albeit not seriously.  The injury to the right side of his body was undoubtedly serious.  It penetrated sufficiently deeply as to lacerate his liver, it necessitated not only admission to hospital in Jersey but airlifting to Southampton University hospital where, once his condition stabilised in intensive care, he underwent surgery.  It was the judgment of the specialist who treated him there that this injury, if untreated, was potentially life-threatening. 

4.        The Court has had regard to the character references provided from the defendant's friends, his family, his business associates, the mother of his children, and from his current partner, Beverley McAllister.  All these references make the point that this offence is out of character and all are strongly supportive of the defendant in his personal and business life. 

5.        The Court takes into account the fact that the defendant is 49 years of age and, with the exception of but one previous conviction to which we will return, has a praise-worthy history of success in his business life and in the bringing up of his young children. 

6.        The defendant has to be sentenced for what the prosecution describe as a serious offence of unprovoked and premeditated violence inflicted, apparently, in cold blood.  In the judgment of this Court, in the light of all the material before us, the Court prefers the description of an offence committed in alcohol-fuelled anger, rather than cold blood.  That said, however, its features include the use of a knife to inflict three injuries, the most serious of which was potentially life-threatening, which necessitated urgent treatment off the Island at a specialist hospital, and relatively prolonged medical treatment.  The victim was a friend who was a guest in the defendant's home.  The attack took place when the defendant was under the influence of drink, the defendant has a previous conviction for an offence of violence committed against a member of the public; while that was undoubtedly very much less serious than the instant offence and the defendant pleaded guilty to it, it was committed while the defendant had been drinking and the Court is satisfied that the prosecution's submission that alcohol triggers aggressive behaviour in the defendant is correct.  That is a factor which is of relevance when the Court considers the assessment in the social enquiry report of the risk of harm and of reoffending posed by the defendant, namely a low risk of general reconviction but a moderate risk of harm to the public, given the defendant's lack of culpability, denial and the lack of insight considered together to be aggravating risk factors. 

7.        Those are all matters which the Court has had regard to in the light of the guidance for sentencing in grave and criminal assault by the Court of Appeal in Harrison-v-AG [2004] JLR 111 paragraph 120.  In addition to that the prosecution have invited the Court's consideration of the factor within this offence of intent to cause serious harm to be inferred from the extent of the injury as a bearing on the degree of culpability which in turn has significance to the determination of the appropriate starting point for a custodial sentence, to be derived from the observations of the Court of Appeal in Mallet-v-AG [2000] JLR 256. 

8.        The defendant does not have the benefit of a plea of guilty; while that does not add a day to his sentence, it does not permit scope for any reduction by way of an indication of remorse.  Furthermore it is a factor that the victim was required to give evidence at trial and there faced searching cross-examination in respect of both his private and business life. 

9.        In the circumstances the prosecution submit that the appropriate starting point here, after a plea of guilty, would be 4½ years.  For the offence itself, the prosecution submit that the Court should find no obvious mitigation at all.  In terms of factors of personal mitigation such as have been marshalled here, in their submission, none have weight in this particular sentencing exercise.  And so they contend that after a trial the appropriate starting point is 7 years' imprisonment. 

10.      On the defendant's behalf Advocate Baxter submits that a starting point of 7 years is too high.  He has directed the Court's attention to AG-v-Sim [2014] JRC 204, a case which he submits on its facts, is very similar to this, and where the Court found a starting point of 5 years' imprisonment.  Advocate Baxter further submits that this offence is properly characterised as a "moment of madness episode".  There is no evidence before the Court as to which the Court could conclude where the knife came from, in what circumstances it came into the defendant's hands, or what type of knife it was, which leaves, in his submission, the question of intent to do serious injury up in the air and that, furthermore, the Court ought to be careful not to derive too great a significance by way of conclusion as to intent from the nature of the injury and/or the implement with which it was inflicted, given the agreed evidence at trial as to force or the lack of it which inflicted this injury.  He submits on the defendant's behalf that whereas custody is inevitable, that this was in truth a sad and shocking event for all concerned, these men were friends with high hopes for the future, and the defendant's life has been wrecked by an alcohol-induced moment of madness which has profound consequences, not only for him, but for his family.  In those circumstances, it is the defence submission, that there should be a significant reduction for personal mitigation. 

11.      This Court's conclusion is that the correct starting point for the features identified in this judgment is one of 6 years' imprisonment and giving effect to such personal mitigation as weighs with us that sentence is reduced to 5½ years' imprisonment, which is the sentence passed on the defendant. 

12.      There is an application for compensation by the Attorney General pursuant to Article 2 of the Criminal Justice (Compensation Orders)(Jersey) Law 1994.  There is no dispute as to the general damages claim of £1,800.  The loss of earnings item has been withdrawn by the Crown so in the circumstances the order of the Court is one of £1,800 by way of general damages.  The defendant is given 28 days to pay that sum; in default, 14 days imprisonment to run consecutively to the sentence of 5½ years' imprisonment. 

13.      The sentence of the Court for grave and criminal assault is one of 5½ years' imprisonment. 

Authorities

Harrison-v-AG [2004] JLR 111.

Mallet-v-AG [2000] JLR 256.

AG-v-Sim [2014] JRC 204.

Criminal Justice (Compensation Order)(Jersey) Law 1994.

AG-v-Gladwin [2007] JRC 196.

AG-v-Krawczyk [2008] JRC 219.