Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - larceny.

[2015]JRC056

Royal Court

(Samedi)

13 March 2015

Before     :

W. J. Bailhache, Bailiff, and Jurats Clapham and OLsen

The Attorney General

-v-

Daniel Jaroslaw Glowienkowski

Arkadiusz Marek Mateusz Kujawski

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges by Glowienkowski and after conviction of Kujawski at Assize trial on 21 January, 2015 on a charge of:

Daniel Jaroslaw Glowienkowski

1 count of:	Grave and criminal assault (Count 1).
1 count of:	Larceny (Count 2).

Age:  26.

Plea: Guilty.

Details of Offence:

After an evening of heavy drinking the two defendants, both Polish nationals, left the Havana nightclub in Bath Street together.  A third man who had been in the same nightclub left at the same time.  He was helplessly drunk and fell to the ground outside the club, hitting his forehead on the pavement.  The defendants spent a few minutes apparently trying to help this man but he declined their help and, according to what Glowienkowski later told the police, levelled insults at his mother and the football club he supported.  The defendants left the scene, but returned seven minutes later in order, according to Glowienkowski, to take revenge on the victim for his rudeness.  Their actions were caught on CCTV.  Kujawski approached the victim, who was still lying helpless on the ground, and gesticulated at him in an aggressive manner.  Glowienkowski then joined in.  Whilst Kujawski stood directly over the victim, apparently holding him down and at one point holding his head by the ears, Glowienkowski kicked the victim five times.  The last three kicks were aimed at and landed on the victim's head.  Glowienkowski was wearing training shoes.  As an opportunistic afterthought, Glowienkowski stole the victim's wallet from his back trouser pocket.  The defendants fled the scene when police arrived, but were arrested a few minutes later in and near the Royal Square.  The Crown put its case throughout on the basis that the defendants had engaged in a joint enterprise grave and criminal assault, each aware of the other's actions, and each playing his own part in attacking the victim. 

It was not possible for the Crown to prove to the criminal standard the precise identity of the victim, but a man who matched the appearance of the victim seen on the CCTV was seen by police in that area.  He had a cut to his forehead which was minor, (and which could, if he were the victim seen on the CCTV, have been attributable to his initial fall to the floor).  This man refused medical treatment, refused to speak to the police, and left the scene. 

Glowienkowski made full and frank admissions in his caution interview, going so far as to admit that he had attacked the victim in revenge, and then taken his wallet as a way of teaching him a lesson for the future.  He pleaded guilty at the earliest opportunity.  In his interview Kujawski admitted that it was him on the CCTV footage but claimed he had only been trying to help the victim and never took part in an assault.  At trial he gave evidence to the same affect.  The jury convicted him. 

Details of Mitigation:

Of the offence:-minor or no injuries sustained by the victim as a consequence, albeit attributable to good fortune rather than design.  Not possible on the evidence to say that Kujawski had directed the kicks administered by his co-defendant. 

Glowienkowski had pleaded guilty at the earliest opportunity and made particularly full and frank admissions.  He had expressed some remorse, but this was coloured by later attempts to minimise his actions. 

Previous Convictions:

Both defendants had criminal records in Poland for offences of dishonesty.  Glowienkowski had one previous Polish conviction for an offence involving violence. 

Conclusions:

After a trial the Crown would have moved for a sentence of 30 months' imprisonment for the grave and criminal assault in Glowienkowski's case.  Because his conduct had been caught on CCTV and he was left with no real option but to plead, he did not deserve full credit.  The theft of the wallet deserved to be met with a consecutive sentence.  Had there been evidence that Kujawski had directed Glowienkowski to kick the victim the Crown would have moved for exactly the same sentence for him.  As it was, the difference in magnitude of each defendant's role should be reflected in the sentence each received. 

Count 1:	22 months' imprisonment.
Count 2:	2 months' imprisonment, consecutive.

Total: 2 years' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Crown's conclusions would be granted and recommendations for deportation would be made for each defendant.  The Court would not tolerate drunken violence on the streets of St Helier which, save in exceptional cases, would be met with custodial sentences.  The victim had been paralytic with alcohol, posed no threat to the defendants and could not defend himself.  Even if he had insulted the defendants this could barely, if at all, be said to amount to provocation. 

Conclusions granted.

Arkadiusz Marek Mateusz Kujawski

1 count of:

Grave and criminal assault (Count 1).

Age:  33.

Plea: Not Guilty.

Details of Offence:

See Glowienkowski above.

Details of Mitigation:

Of the offence:-minor or no injuries sustained by the victim as a consequence, albeit attributable to good fortune rather than design.  Not possible on the evidence to say that Kujawski had directed the kicks administered by his co-defendant. 

Kujawski - no personal mitigation. 

Previous Convictions:

Both defendants had criminal records in Poland for offences of dishonesty.  Kujawski similarly had a Polish conviction for an offence involving violence and a conviction for common assault in Guernsey in 2013. 

Conclusions:

After a trial the Crown would have moved for a sentence of 30 months' imprisonment for the grave and criminal assault in Glowienkowski's case.  Because his conduct had been caught on CCTV and he was left with no real option but to plead, he did not deserve full credit.  The theft of the wallet deserved to be met with a consecutive sentence.  Had there been evidence that Kujawski had directed Glowienkowski to kick the victim the Crown would have moved for exactly the same sentence for him.  As it was, the difference in magnitude of each defendant's role should be reflected in the sentence each received. 

Count 1:

18 months' imprisonment.

Total: 18 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Crown's conclusions would be granted and recommendations for deportation would be made for each defendant.  The Court would not tolerate drunken violence on the streets of St Helier which, save in exceptional cases, would be met with custodial sentences.  The victim had been paralytic with alcohol, posed no threat to the defendants and could not defend himself.  Even if he had insulted the defendants this could barely, if at all, be said to amount to provocation. 

Conclusions granted.

M. T. Jowitt, Esq, Crown Advocate.

Advocate J. M. Grace for Glowienkowski.

Advocate P. S. Landick for Kujawski.

JUDGMENT

THE BAILIFF:

1.        Mr Glowienkowski, you have pleaded guilty to an Indictment containing two counts, grave and criminal assault and larceny; Mr Kujawski, you pleaded not guilty to an Indictment containing one count, as far as you are concerned, of grave and criminal assault.  It was a joint enterprise and the assault was committed in the early hours of the morning when, there is no doubt at all, that you were both under the influence of drink, although well able to commit the assault, and you committed it on a victim who was paralytic with drink because he had fallen over and was unable to get up.  There is no excuse for that conduct. 

2.        The assault by Mr Glowienkowski involved a number of kicks, some of them clearly not very hard but, nonetheless, some of them much harder, and they were addressed to, respectively, the lower leg, then the body and the head.  They were delivered with a shod foot albeit not a heavy shoe. 

3.        As far as Mr Kujawski is concerned, the participation in the grave and criminal assault involved, first of all, him being the initiator of that assault and it involved him certainly bending over the victim on the ground and acting in a very aggressive way, it appears, holding the victim's head or his ears and being well aware that at the time that he was doing that, that Mr Glowienkowski was delivering kicks. 

4.        The Court has said on many occasions that it will not tolerate drunken assaults on the streets of St Helier at night and that, unless there are some special circumstances, the Court will impose a sentence of imprisonment.  We have considered carefully the conclusions of the Crown and in both cases we think those conclusions are correct. 

5.        In particular, we think Mr Glowienkowski, that the conclusion that you should have a consecutive sentence for the theft of the wallet is correct; frankly if the Court were not imposing a sentence of imprisonment in relation to Count 1, the sentence on Count 2 would have been longer and so the totality principle has already been taken into account in reaching a sentence of 2 months' imprisonment, consecutive on Count 2.  You have said, through your counsel, that you reacted out of all proportion to such provocation as there was.  It is not clear how much provocation there was.  If a man who is paralytically drunk does not want to be helped, then that certainly does not seem to amount to much by way of provocation, and frankly statements that a football team has been insulted certainly do not amount to provocation.  You reacted adversely to comments made about your mother and we have taken that into account. 

6.        It is unfortunate in both your cases that, despite previous problems, you have found yourselves in this position again, but the Court's policy in relation to assaults committed on the streets of St Helier is clear and that is governing our decision that the Crown's conclusions are correct.

7.        Accordingly, Mr Glowienkowski, you will go to prison on Count 1 for 22 months and on Count 2; 2 months' imprisonment, consecutive, making a total sentence of 2 years' imprisonment. 

8.        Mr Kujawski, we have recognised that your participation in the assault, although you were the initiator, is less serious than the kicks that were delivered by your co-accused.  On the other hand, you pleaded not guilty and therefore you are not entitled to any discount for the guilty plea.  We think 18 months' imprisonment is correct and, accordingly, you are sentenced to 18 months' imprisonment. 

9.        What has caused us more debate is the question of deportation.  In the case of Mr Glowienkowski it has not been opposed and we make the recommendation for deportation accordingly.  We are satisfied in his case that both parts of the test which we have to apply in deportation cases are met.  The grave and criminal assault was a serious one and, although of course we recognise that we have seen more serious assaults, it was nonetheless a serious assault, not least because the victim was quite incapable of defending himself, and we think it is right to make the recommendation for deportation. 

10.      In so far as Mr Kujawski is concerned, the position has been more marginal.  However, we take the view that it is right to make a recommendation for deportation for these reasons.  First of all it was a grave and criminal assault and secondly, the fact is that despite the personal difficulties which the defendant had from his background, and despite the fact that he has been out of trouble for some years, he has committed recently another offence in the Channel Islands.  We also take into account that the social enquiry report describes him as being of moderate risk to the public.  In those circumstances we think that although the first part of the test is one we have had to consider carefully, it is met.  We also think that there is nothing that arises from a human rights perspective that makes the decision in any way disproportionate or in breach of the human rights which either this defendant or any member of his family might have.  Accordingly we make the recommendation for deportation. 

11.      Advocate Jowitt, the Court was troubled originally, and is certainly troubled again today, by the video footage which you have shown us which shows the victim absolutely paralytically drunk emerging from the nightclub.  We ask you please to raise the matter with the Attorney General as to whether there should be a reference to the Licensing Assembly in relation to the apparent conduct of the nightclub in serving alcohol to somebody who was paralytically drunk, if indeed that can be established, because we make no findings on that and that is a matter for the Licensing Assembly to determine on any such reference 

Authorities

Harrison-v-AG [2004] JLR 111.