Jersey Unreported Judgments

Inferior Number Sentencing - affray - breach of the peace - sending offensive message - larceny.

[2015]JRC191A

Royal Court

(Samedi)

18 September 2015

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Marett-Crosby and Thomas

The Attorney General

-v-

Ruben Miguel Rodrigues De Freitas

Grant Barry Felix Hepburn

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Ruben Miguel Rodrigues De Freitas

1 count of:

Affray (Count 1).

Age:  24.

Plea: Guilty.

Details of Offence:

Hepburn came to the attention of police officers when he and several others, including a teenager named Allenet, were involved in an altercation in King Street.  Arrival of the officers restored good order and all went on their way.  Hepburn recognised Allenet as someone against whom his friend De Freitas held a grudge (Allenet and others allegedly having beaten up De Freitas after he spent the night with Allenet's girlfriend).  Allenet and friends walked off toward their homes in Georgetown.  Hepburn and friends headed toward his father's home at La Greve d'Azette.  Hepburn telephoned De Freitas, inviting him to join them and to bring alcohol.  De Freitas joined Hepburn at the bottom of Belvedere Hill, bringing a bottle of wine and a part bottle of spirit with him.  De Freitas recognised Allenet in the distance and became enraged, he and Hepburn ran toward Allenet, each holding and smashing a bottle as they did.  By the time they reached the other group Allenet had disappeared from sight, those who remained variously described how they could clearly see them holding broken bottles, being very scared for their safety and fearing being 'glassed' (Count 1).  One of Allenet's friends called the police who arrived on the scene very promptly.  De Freitas was arrested, Hepburn was stopped and searched but there being no formal complaint against him at that time he was allowed to go on his way.  Shortly afterwards Hepburn sent two threatening 'Facebook' messages to Allenet including words such as 'ur a ****** dead man' and 'I know where u live ... ill do time for you' (Count 3).  When investigating the mobile telephone from which the messages were sent it transpired it did not belong to Hepburn, who claimed he had found it in the street; the true owner confirmed having 'lost' it (Count 4).  During the investigation CCTV evidence of the initial King Street incident showed a number of offences being committed by various individuals, including Hepburn (Count 2) and Allenet both causing a breach of the peace by fighting. 

Details of Mitigation:

Guilty pleas (entered and accepted on a basis in the lower court, in relation to Count 1, that the broken bottles were only intended to scare and there was no intention of causing injury with them).  De Freitas' frequency of offending had reduced in recent years, offered belated apology through counsel; unemployed but motivated to continue reform.  Hepburn expressed remorse during preparation of reports and wrote a letter of apology to Allenet; in steady relationship, engaged, employment as stonemason allowing him to contribute to family expenses, one child between them and two from previous relationships of fiancée, treating as own.  Counsel contended that both should have the benefit of residual youth. 

Previous Convictions:

De Freitas had 31 offences to his name, commencing at the age of 11 and including six common assaults, two grave & criminal assaults, several drink and drug related offences and breaches of a variety of orders. 

Conclusions:

Count 1:

2 years' imprisonment.

Exclusion Order sought for a period of 12 months from the date of sentencing excluding the defendant from entering any premises holding a licence of 1^st, 4^th, 5^th or 7^th category excluding the Multiplex Cinema, the Opera House, Jersey Airport, the Arts Centre and the ferry terminal at Elizabeth Harbour should the Court impose a non-custodial sentence.  If custodial sentence of 18 months or less imposed then 12 month order sought.

Sentence and Observations of Court:

The Court allowed full credit for the guilty pleas, acknowledged that De Freitas' offending had reduced and that Hepburn now had responsibilities.  As there were no exceptional circumstances the Court saw no alternative but to impose a custodial sentence, however at a lower level than the Crown's conclusions. 

Count 1:

1 year's imprisonment.

No Exclusion Order imposed.

Grant Barry Felix Hepburn

1 count of:	Affray (Count 1).
1 count of:	Causing a breach of the public peace (Count 2).
1 count of:	Sending, by means of a public telecommunications system, a message or other matter that was grossly offensive or of an indecent, obscene or menacing character, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Count 3).
1 count of:	Larceny (Count 4).

Age:  23.

Plea: Guilty.

Details of Offence:

See De Freitas above.

Details of Mitigation:

See De Freitas above.

Previous Convictions:

Hepburn had 17 offences to his name over the preceding four years, mainly drug-related, but two disorderly on licensed premises and two malicious damage. 

Conclusions:

The Crown was aware that Allenet had been prosecuted for his part in the King Street offence and dealt with in the lower court by way of a binding-over order; so that Hepburn could not feel a sense of grievance the Crown viewed the offence as an aggravating feature with regard to the affray and sought no separate penalty.  With regard to the other offences they were all separate in time and place and the Crown sought consecutive sentences. 

Count 1:	2 years' imprisonment.
Count 2:	No separate penalty.
Count 3:	2 months' imprisonment, consecutive.
Count 4:	2 weeks' imprisonment, consecutive.

Total: 2 years, 2 months' and 2 weeks' imprisonment. 

Exclusion Order sought for a period of 12 months from the date of sentencing excluding the defendant from entering any premises holding a licence of 1^st, 4^th, 5^th or 7^th category excluding the Multiplex Cinema, the Opera House, Jersey Airport, the Arts Centre and the ferry terminal at Elizabeth Harbour should the Court impose a non-custodial sentence.  If custodial sentence of 18 months or less imposed then 12 month order sought.

Sentence and Observations of Court:

The Court allowed full credit for the guilty pleas, acknowledged that De Freitas' offending had reduced and that Hepburn now had responsibilities.  As there were no exceptional circumstances the Court saw no alternative but to impose a custodial sentence, however at a lower level than the Crown's conclusions. 

Count 1:	1 year's imprisonment.
Count 2:	No separate penalty.
Count 3:	2 months' imprisonment, concurrent.
Count 4:	2 weeks' imprisonment, consecutive.

Total: 1 year and 2 weeks' imprisonment. 

No Exclusion Order imposed.

Ms S. J. O'Donnell, Crown Advocate.

Advocate A. M. Harrison for De Freitas.

Advocate J. W. R. Bell for Hepburn.

JUDGMENT

THE commissioner:

1.        The defendants stand to be sentenced for affray and Hepburn for a number of lesser offences.  The essence of the offence of affray is that by your conduct and words you have used or threatened violence in such a way that would cause a reasonable person present at the scene to fear for his or her safety.  The important criteria in determining the gravity of the offence are the level of violence used, the scale of the affray, that is to say how many people are involved in it, and the extent to which it is premeditated or spontaneous.  Those who take part must accept a measure of responsibility for the actions of others with whom they are acting jointly.  It is in the nature of an affray that it is not always possible to identify exactly who did what but they are all contributing to the public fear which is at the heart of the offence. 

2.        In this case there had been an earlier altercation in St Helier between Hepburn and another group, including Jared Allenet.  The CCTV footage shows Hepburn and Allenet posturing and shouting at each other and exchanging blows.  The police fortunately restored order and the groups were sent on their separate ways.  They met again in the area of Snow Hill and Hepburn's group began to follow Allenet's group.  There were verbal exchanges between Allenet and Hepburn.  The groups moved towards Howard Davis Park where Hepburn was described as being agitated and wanting to fight.  There Hepburn made a call to De Freitas, who joined them, bringing two bottles with him.  Once together the defendants called for Allenet and they began running towards Allenet's group, smashing the bottles so that they were holding broken bottles in their hands.  There were a number of witnesses who feared for their safety, one of whom called the police before the defendants could get at Allenet. 

3.        The defendants have previous convictions; Hepburn is assessed at a high risk of reconviction - De Freitas at a medium risk. 

4.        In terms of mitigation both have pleaded guilty and get full credit for that.  De Freitas has significantly reduced his offending in recent years and he has now expressed remorse for his conduct on that evening. 

5.        Hepburn has a fiancée and a 14-month old son.  He has also taken over the role of father to his fiancee's two other children.  He has psychological issues as set out in the report from Dr Boucher, who has recommended treatment for him.  He has written to us expressing his remorse for his conduct and Probation have confirmed that he is trying to make positive changes in his life. 

6.        We have considered all of the mitigation put forward by counsel on behalf of both defendants but we can see no alternative to imposing a custodial sentence.  Drink-fuelled affrays of this kind in the streets of St Helier cannot be tolerated and the message must go out that it will result in custodial sentences unless the mitigation is exceptional, and we can see no exceptional mitigation in this case.  We do agree, however, with counsel that, applying the AG-v-Burrell and Others [2003] JLR N 53 criteria, this offence is at a lower end of the scale and that will be reflected in the sentence we impose.  We also take the view that the telecommunications charge in relation to Hepburn should be treated concurrently as we see it as part and parcel of the incident. 

7.        In terms of the affray you are both sentenced to 1 year's imprisonment. 

8.        Mr Hepburn, in relation to Count 2, causing a breach of the peace by fighting, there will be no separate penalty.  In relation to Count 3, the telecommunications charge, you will be sentenced to 2 months' imprisonment, concurrent, and in relation to Count 4, the larceny of the mobile phone, you will be sentenced to 2 weeks' imprisonment, consecutive.  Therefore for Mr Hepburn you will serve a total of 1 year and 2 weeks imprisonment. 

9.        Mr De Freitas, you will serve a total of 1 year's imprisonment. 

10.      There will be no Exclusion Order. 

Authorities

AG-v-Burrell and Others [2003] JLR N 53.

AG v McDougal [2010] JRC 072.

AG v Heard [2012] JRC 132.

Licensed Premises (Exclusion of Certain Persons) (Jersey) Law 1998.