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Cite as: [2015] JRC 202

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Inferior Number Sentencing - grave and criminal assault.

[2015]JRC202

Royal Court

(Samedi)

2 October 2015

Before :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Blampied and Clapham

The Attorney General

-v-

Jonathan Patrick Harrison

Sentencing by the Inferior Number of the Royal Court, following conviction at Assize trial on 21^st August, 2015, on the following charge:

1 count of:

Grave and criminal assault (Count 2).

Age: 49.

Plea: Not guilty.

Details of Offence:

The defendant had gone for lunch with a friend and consumed a quantity of alcohol. They had then gone to the Dolphin Hotel for a last drink before going home. The defendant mouthed something whilst grabbing at his groin towards one of the regular users of the pub. The two men were not known to each other. The victim approached the defendant and asked if there was a problem. The defendant responded in an aggressive and threatening manner. The exchange was witnessed by a number of other people in the pub. The victim returned to his seat at the bar.

A short while later the victim left the pub to smoke a cigarette. The defendant and his friend left a short while later via the same exit. The victim's next recollection was that he felt a blow to his face and remembered nothing else until he woke up lying on the ground with a pool of blood next to him. Eye witnesses outside the pub and also inside the pub saw the defendant exiting the pub shortly after the victim and saw him punch the victim almost immediately. Between 3 to 6 punches were thrown using a clenched fist all of which connected. The victim was knocked unconscious. He hit the back of his head on the granite pavement. The defendant walked away. The victim suffered a broken nose, a 2cm irregular laceration to the back of his head, a 1 cm superficial laceration to his forehead, black eyes and facial swelling.

An eye witness gave a description of the defendant to the police and the defendant was arrested a short while later. In interview he claimed that he had been the subject of an assault by two men but gave no other details. In accordance with his legal right he answered "no comment" to questions from the police.

He pleaded not guilty on Indictment and was convicted following a three day trial. At trial his defence was that of self-defence and he claimed that the victim and other locals in the pub had been aggressive and verbally abusive. He had been threatened. Whilst outside the pub the victim had called him a name and had thrown the first punch which he had blocked and then he had knocked the defendant unconscious with two punches. By virtue of that verdict the jury did not accept the defendant's account. He was therefore to be sentenced on the basis of the Crown's case.

The Crown had regard to the factors identified in Harrison v AG and took a starting point of 2½ years' imprisonment.

Details of Mitigation:

The Crown

The defendant did not have the benefit of guilty plea, youth or good character. His record was limited. However, it showed that he resorted to violence when in a confrontational situation. Relative low risk of re-conviction but presented an elevated risk of physical harm to others.

The Defence

The Crown's starting point of 2½ years was too high/excessive on the facts and by reference to other cases. The defendant had been co-operative in interview. The defendant had maintained claim of only two punches and an element of provocation. Fortunately there was no long-term injury for the victim.

Previous convictions were minor. Nothing of the same severity as current charge. He was sorry that the blows had knocked the victim to the ground and the injury to the head had been sustained. Given all the circumstances had learnt a very important lesson. He was sorry that he got involved. He was a successful businessman who had built up his own business and employed a number of individuals. Imprisonment would adversely affect that business. He had already been punished and deterred from any future similar behaviour by his involvement in this Court process.

Previous Convictions:

Breach of the peace, disorderly on licenses premises, drunk and disorderly and motoring offences - a number only at Parish Hall level.

Conclusions:

Count 1: Disorderly on licensed premises. In light of the not guilty plea the Crown proposed that this Count remain on file only to be rectified with the permission of the Royal Court or Court of Appeal.

Count 2:

Starting point 2 years and 6 months' imprisonment. 2 years and 6 months' imprisonment

Compensation Order sought in the sum of £2,625 or 3 months' imprisonment in default.

Exclusion Order sought excluding the defendant from 1^st, 4^th, 5^th and 7^th category licensed premises including the Aero Club and excluding the Multiplex Cinema, the Opera House, Jersey Arts Centre, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 2 years from date of release from prison.

Prosecution costs sought in the amount of £30,000.

Sentence and Observations of Court:

The defendant, aged 49, had been found guilty of grave and criminal assault by the unanimous verdict of the jury after a 3 day trial. The Court summarised the facts. The defendant had alleged self-defence at trial but this had been rejected by the jury. The defendant had previous convictions. The Court assessed the assault at the lower end of the scale; not entirely unprovoked as there was clearly a build up to the incident; did not involve kicks or punches when victim was on the floor. The defendant was co-operative in interview. Nature of violence was not as serious as highlighted by a review of the other cases. However the Court had a clear policy in relation to street violence and in those circumstances no option other than to impose a custodial sentence. The Court had reviewed the relevant factors in Harrison and carried out its own assessment and set the starting point at 2 years' imprisonment. It had then made a deduction to allow for the defendant's personal mitigation.

Count 2:

Starting point 2 years' imprisonment. 18 months' imprisonment.

Compensation Order made in the sum of £2,625 to be paid within 1 month or 3 months' imprisonment in default, consecutive to Count 2.

No Exclusion Order made.

Prosecution costs ordered in the amount of £15,000 to be paid within 12 months from today's date.

J. C. Gollop, Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE commissioner:

1. The defendant, who is 49, was found guilty of grave and criminal assault by the unanimous verdict of the Jury following a three-day trial. The assault took place at about 5:45pm outside the Dolphin Hotel from which he and the victim had emerged. Witness, both in and out of the pub, described the defendant punching the victim between two and six times to the face, knocking him apparently unconscious. He fell to the ground hitting the back of his head on the pavement where, according to a witness, he lay unconscious for what seemed as a few minutes. At the Accident and Emergency Department at the hospital he was found to have lacerations to the back of his head and forehead, a swollen and bruised nose and facial swelling and tenderness. The victim says in his statement that he declined an operation resetting his nose as the outcome could not be guaranteed but his nose is no longer straight.

2. The defendant's defence was that he was acting in self-defence, an explanation rejected by the Jury, but it is clear that there had been verbal exchanges within the Dolphin. The defendant has previous convictions for motoring and public disorder offences, though we accept that they are at a lower level. He is assessed by the Probation Department as being at a low risk of reoffending.

3. The Crown submits that the Court has a clear and well-established policy that street violence will not be tolerated and that unprovoked attacks in a public place will be punished by a custodial sentence. In its view, having taken into account the Harrison-v-AG [2004] JLR 111 factors, there is little mitigation available to the defendant and it moves for a sentence of 2 years and 6 months' imprisonment. In addition the Crown move for an Exclusion Order to take effect after the defendant's release, compensation for the victim in the sum of £2,625, and costs of £30,000, the defendant apparently owning a property and a successful business.

4. We have considered the Harrison factors ourselves and our own assessment is that this case is at the lower end of the scale. In our view this was not an entirely unprovoked attack; there clearly was a build-up to which the defendant eventually overacted. Furthermore there was none of the violence seen we have seen in other cases such as kicks or punches when the victim was on the ground. The defendant was cooperative with the police; he cannot be criticised for exercising his right on advice not to answer some of the questions put to him.

5. Because of the clear policy of the Court however we can see no option other than to impose a sentence of imprisonment. What the Jury found was a grave and criminal assault, committed in public. We set the starting point at 2 years from which we will make a reduction to take into account the defendant's personal mitigation as put forward by Advocate Steenson.

6. On Count 2 you are sentenced to 18 months' imprisonment.

7. There will be no Exclusion Order.

8. We order the defendant to pay compensation to the victim of £2,625 to be paid within 1 month with a consecutive default sentence of 3 months' imprisonment.

9. In terms of costs the Crown have referred us to the extract from Whelan on Aspects of Sentencing in the Superior Courts of Jersey and the decision of the Court of Appeal in X-v-AG [2011] JLR 166. We do not regard the defendant as having conducted his defence in a blameworthy way but the case against him was strong. There were at least three wholly unconnected witnesses who gave evidence of his assaulting the victim before the victim had a chance to defend himself.

10. In all the circumstances we think he should be ordered to pay costs but, as Advocate Steenson points out, they have not been assessed. On a summary basis we are only prepared to order costs in the sum of £15,000 to be paid within 12 months from today's date.

Authorities

Harrison-v-AG [2004] JLR 111.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey Third edition.

X-v-AG [2011] JLR 166.

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

Criminal Justice (Compensation Orders) (Jersey) 1994.

UK Magistrate's Court Sentencing Guidelines - Definitive Guide.

Costs in Criminal Cases (Jersey) Law 1961.

AG v Smitton 1993/101.

AG v Warburton 1993/115.

AG v O'Brien 1995/226.

AG v Knowles 1998/134.