Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2015]JRC127

Royal Court

(Samedi)

11 June 2015

Before     :

W. J. Bailhache, Esq., Bailiff, and Jurats Fisher and Olsen

The Attorney General

-v-

Zachary James Ewens

Joshua Lister

Alan Patryck Wilk-Weller

Sentencing by the inferior Number of the Royal Court, following guilty plea to the following charge:

Zachary James Ewens

1 count of:

Grave and criminal assault (Count 1).

Age:  18

Plea: Guilty.

Details of Offence:

After apparently observing the victim shoving a woman, the defendants chased him through several streets.  Wilk-Weller then punched him four times to the head, causing him to collapse.  Ewens caught up and delivered a punch and kicks to the victim's head as he lay on the floor.  Lister arrived and punched the victim's head.  All three defendants fled when the police arrived.  The victim lost consciousness, was not seriously injured, but was rendered anxious and socially withdrawn.  Lister had been bound over by the Magistrate only four days beforehand for a public order offence whilst drunk.  Ewens was on probation for two counts of malicious damage whilst drunk.

Details of Mitigation:

Guilty pleas, remorse and youth.

Previous Convictions:

No convictions for violence.

Conclusions:

Count 1:

18 months' youth detention.

Breach of Probation Order: 1 week's youth detention, concurrent to Count 1.

Total: 18 months' youth detention.

Compensation Order sought in the same terms as those ordered by the Youth Court on 11 November with 2 years and 6 months' in which to pay.

Exclusion Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from date of sentencing sought.

Sentence and Observations of Court:

Count 1:

12 months' youth detention.

Breach of Probation Order: 1 week's youth detention, to run concurrently on each malicious damage charge with Count 1.

Compensation Order made in the same terms as those ordered by the Youth Court on 11 November and 2½ years in which to pay or 21 days youth detention in default for each charge.

Exclusions Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from today's date.

Joshua Lister

1 count of:

Grave and criminal assault (Count 1).

Age:  18

Plea: Guilty.

Details of Offence:

See Ewens above.

Details of Mitigation:

Guilty pleas, remorse and youth.

Previous Convictions:

No convictions for violence.

Conclusions:

Count 1:

18 months' youth detention.

Breach of Binding over Order: 1 week's youth detention, concurrent to Count 1.

Total: 18 months' youth detention.

Exclusion Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from date of sentencing sought.

Sentence and Observations of Court:

Count 1:

150 hours' Community Service Order, equivalent to 9 months' youth detention, together with a 12 month Probation Order.

Breach of Binding over Order: 20 hours' Community Service Order, equivalent to 1 week's youth detention, to run consecutively to Count 1 or 3 days' youth detention in default.

Total: 170 hours' Community Service Order, together with a 12 month Probation Order.

Exclusion Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from today's date made.

Alan Patryck Wilk-Weller

1 count of:

Grave and criminal assault (Count 1).

Age:  18

Plea: Guilty.

Details of Offence:

See Ewens above.

Details of Mitigation:

Guilty pleas, remorse and youth.

Previous Convictions:

No convictions for violence.

Conclusions:

Count 1:

18 months' youth detention.

Exclusion Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from date of sentencing sought.

Sentence and Observations of Court:

Count 1:

12 months' youth detention.

Exclusion Order from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises for a period of 2 years from today's date made.

D. J. Hopwood, Esq., Crown Advocate.

Advocate A. M. Harrison for Ewens.

Advocate J. W. Angus for Lister.

Advocate J. W. R. Bell for Wilk-Weller.

JUDGMENT

THE BAILIFF:

1.        Mr Ewens, Mr Lister and Mr Wilk-Weller, you are here to be sentenced on a single charge of grave and criminal assault which took place on 15^th February in Burrard Street this year when the three of you committed that assault on the victim. 

2.        The circumstances were that the victim and his girlfriend had been out socialising; they had been to a nightclub with a friend; there was some sort of fracas which you witnessed and, to some extent, joined in with.  The victim walked away from the group and, Mr Wilk-Weller, you then called after him asking what he was doing; he ignored you and you followed him and when the victim broke into a run to get away, you chased him and, Mr Ewens and Mr Lister, you followed chasing the victim as well.  The three of you pursued him along Bath Street, Beresford Street, across Halkett Place, down Waterloo Street and Waterloo Lane and along Burrard Street and, on several occasions, Mr Wilk-Weller, you tried to trip the victim up.  At the end of Burrard Street the victim was exhausted: he stopped, turned to face Mr Wilk-Weller who advanced upon him and punched him to the face, causing him to stumble and turn away, he was obviously dazed.  Mr Wilk-Weller then hit him three further times; indeed with two of those blows Mr Wilk-Weller was holding the victim while he punched him to the face.  The victim then collapsed limply on the ground and Mr Ewens it was, as it were, your turn.  You stepped forward, punched the victim twice to the head and kicked him hard to the head twice.  Mr Lister by this stage had also arrived, and he punched the victim to the head while he lay on the ground..  The police arrived.  Mr Ewens, you and Mr Lister ran away, Mr Wilk-Weller walked away in the opposite direction.  Meanwhile the victim was motionless in the road having lost consciousness. 

3.        The Court has said many times that drunken violence, and there is no dispute that you were all under the influence of drink, on the streets of St Helier at night calls for a custodial sentence unless there are exceptional circumstances.  That policy, of course, has been formulated having regard to an adult defendant and your counsel are all right to say that we must have regard to the Criminal Justice (Young Offenders)(Jersey) Law 1994 in deciding what is the appropriate sentence to impose upon you.  That is in these terms:-

"(2)     A court shall not pass a sentence of youth detention unless it considers that no other method of dealing with the person is appropriate because it appears to the court that -

(Paragraphs a and b do not apply)

(c)       the offence or the totality of the offending is so serious that a non-custodial sentence cannot be justified,

And the court shall state in open court its reasons for imposing a sentence of youth detention and shall explain to the person that on the person's release the person may be subject to a period of supervision in accordance with Article 10."

4.        Advocate Bell, very rightly, draws to our attention comments which were made by Dyson LJ, as he then was, in the case of R-v-Ghafoor [2002] EWCA Crim 1857 where he said this:-

"The obvious reason is that as Mr Emerson points out, the philosophy of restricting sentencing powers in relation to young offenders, reflects both a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and b) the recognition that in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults."

5.        Now the Court has been some considerable time considering the offence which you have committed and these provisions in the 1994 Law and, in particular, we have been giving consideration as to whether we should distinguish between Mr Wilk-Weller and Mr Ewens on the one hand, and Mr Lister on the other.  We do not distinguish between Mr Wilk-Weller and Mr Ewens. 

6.        In your case Mr Wilk-Weller, you instigated the whole thing.  You started it by chasing him, you pursued the victim and you punched him until he collapsed on the floor. 

7.        Mr Ewens, you delivered two kicks and two punches to the head and the Court has always treated the delivery of kicks as being particularly serious.  You could have kicked an eye out without any difficulty.  We cannot see any reason for distinguishing between the two of you. 

8.        Mr Lister, you arrived slightly later.  It is not entirely clear whether you were aware at the time, even through your drunken state, as to what your two co-defendants had done.  It is unclear how hard you struck the victim but you did strike him to the head, while he was lying on the ground and defenceless, and that was a cowardly thing to do and you are rightly pleading guilty to the offence of grave and criminal assault.  The Court does consider that it can distinguish between you and your two co-defendants.  It has been an absolutely marginal case.  We were on the cusp of not distinguishing between you and we would like to make that absolutely clear to you because you are extremely fortunate that we think, at the end of the day, that we have to give full weight to the terms of the 1994 Law in so far as you are concerned. 

9.        Mr Wilk-Weller, Mr Ewens, we think that your offending is so serious that a non-custodial sentence simply cannot be justified.  We understand completely that you are remorseful now for what you have done but you have to be sentenced for what you have done and what you did on that evening was simply frightful. 

10.      The Court considers that the Crown has the matter absolutely right when it described the offending in this way:-

"This was a joint enterprise in which the defendants behaved like a pack of dogs pursuing a total stranger, cornering their quarry and then taking it in turns to beat him senseless.  It is a horrifying example of the kind of conduct that dissuades ordinary members of the public from socialising in St Helier."

The Crown invites the Court to send out a strong message of disapproval and the Court absolutely wants to send out that message.  One well understands how you can be remorseful at this stage but the fact is that this conduct was truly appalling. 

11.      We have taken into account all that has been said by your counsel; we recognise that none of you has serious previous convictions which are to be held against you and, in your case Mr Wilk-Weller, we recognise that you have no previous convictions.  We recognise that you are young people and that, as I say, you are rightly ashamed of what you have done.  We think the Crown has probably set the conclusions too high in the light of your youth. 

12.      In the circumstances, Mr Ewens, you are sentenced to 12 months' youth detention.  In relation to the breach of the orders in the Youth Court, you are sentenced to 1 week's youth detention, concurrent on each malicious damage charge. 

13.      The Compensation Orders made by the Youth Court will stand and you have 2 years and 6 months' within which to pay that compensation.  If you do not pay it there will be an additional 21 days' youth detention in default in respect of each charge.  So if you do not pay the money back within 2 years and 6 months' you have an additional 21 days' youth detention.  There is provision in the Law for you to apply to Court for a further extension of time if you find that you are unemployed and you cannot pay it and the Court can take that into account and your counsel will advise you about that, so you should remember that when the time comes because otherwise the default sentence will be triggered. 

14.      Mr Wilk-Weller, as far as your charge is concerned, you are here simply for the grave and criminal assault and you are sentenced to 12 months' youth detention. 

15.      Mr Lister, it is with a great deal of hesitation that the Court thinks that, marginally, you are entitled to the benefit of the doubt.  Nonetheless, as I have said, the offence that you have committed was a cowardly and serious offence.  You should recognise that.  You should recognise the effect that alcohol has had upon you and in the circumstances we are going to impose a sentence of 12 months' probation and 150 hours' community service.  The Community Service Order is equivalent to 9 months' youth detention and if you fail to comply with the terms of the Probation Order, fail to act as the probation officer directs you, if you do not perform the community service, then the matter will be brought back to this Court and you are liable then to be sent to the youth detention order that is the alternative.  In relation to your breach of the binding over order, we note that this took place only three or four days prior to this offending and in those circumstances we impose upon you a further 20 hours community service for the breach of binding over order and 3 days youth detention would be the alternative custody and, of course, that would be served consecutively so in total that is 170 hours' community service.  

16.      In relation to each of you there will be an Exclusion Order of 2 years to run from today.  You are excluded from attending in any 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Arts Centre, the Airport, the ferry terminal at Elizabeth Harbour and the Opera House.  As I say, in each case for 2 years from today. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Harrison-v-AG [2004] JLR 111.

AG-v-Martins [2015] JRC 016.

AG-v-Gloweinkowski and Kujawski [2015] JRC 056.

AG-v-Herve [2011] JRC 086.

AG-v-Sofaru [2012] JRC 128.

Whelan on Aspects of sentencing in the Superior Court of Jersey.

AG-v-Cameron [2008] JRC 182.