Jersey Unreported Judgments

Inferior Number Sentencing - being disorderly on licensed premises - grave and criminal assault.

[2016]JRC121

Royal Court

(Samedi)

15 July 2016

The Attorney General

-v-

Daniel Roberts (Kirkpatrick)

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

Age:  24.

Plea: Guilty.

Details of Offence:

The defendant and victim were unknown to each other at the time of the assault.  On Christmas Eve the defendant and victim were both inside Tanguy's Wine Bar.  The following events were caught on CCTV.  The defendant was sat with friends close to the dance floor, he stood up and picked up his drink and threw the contents backwards over his shoulder.  The drink spilled over onto several people, including the victim.  The victim approached the defendant and the defendant pretended to throw a further drink at the victim causing him to flinch and raise his hands in anticipation.  The defendant pointed and laughed at his reaction.  The defendant and victim then reached out towards one another and slapped each other twice in the face before they were separated.  The defendant gesticulated towards the victim, waving his arms in the air and shaking his fists. 

The victim left the bar at around midnight and on doing so the defendant who was already outside gestured to the victim to follow him.  The CCTV footage shows the defendant and victim and friends walking off up Pier Road.  The assault was not caught on CCTV but an agreed basis was accepted by the Crown.  The group stopped in Pier Road and the victim began talking to one of the defendant's female friends.  The victim was upset and angry about the assault.  The defendant approached the victim without him knowing and struck the victim to the left side of his head using the inside of his right palm and made contact with the area of the victim's left ear.  The defendant ran from the scene.  The victim fell to the floor and hit his head and lost consciousness. 

The Police were alerted and the victim was taken to hospital and remained there until 3pm on Christmas day.  The victim suffered a fractured mastoid bone on the left side and bruising to the right elbow. 

Details of Mitigation:

Guilty plea, employment, references and remorseful.  The Court noted he attended voluntarily at the police station. 

Previous Convictions:

First appearance in Royal Court although several previous offences including larceny, breach of the peace and a grave and criminal assault from the Youth Court. 

Conclusions:

Total: 12 months' imprisonment.

Exclusion Order sought excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 12 months from the day of his release from prison.

If a non-custodial sentence is imposed the Crown applies for a costs order in the sum of £1,000.

Sentence and Observations of Court:

The Court re-emphasised its policy that those who commit violent offences in public should expect to face custodial sentences and that it is not possible to list those cases that are exceptional to avoid a custodial sentence. 

The Court accepted the defendant was remorseful and that it was one blow, no weapon and consequently felt able to reduce the Crown's conclusions. 

Total: 9 months' imprisonment. 

Exclusion Order made excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 12 months from the day of his release from prison or on licence. 

The Solicitor General appeared for the Crown.

Advocate P. M. Livingstone for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant is here to be sentenced on two counts, one of being disorderly on licensed premises, contrary to Article 82 of Licensing (Jersey) Law 1974 ("the Licensing Law") and the other a grave and criminal assault.  The circumstances in relation to the first offence relate to throwing drink over the defendant's shoulder on the dance floor of a club and thereafter pretending to throw a further drink over the victim causing him to flinch and raise his hands in anticipation.  There was then some disorderly contact between victim and defendant, the victim, unsurprisingly, objecting to that course of conduct by the defendant.  The grave and criminal assault occurred outside the club not very much later.  It was at that point an unprovoked attack in the sense that the victim was talking to one of the friends of the defendant.  It seems to be clear that the victim was still upset at what had taken place in the club and the Court is not surprised.  At the same time, that incident was an incident which no doubt to the defendant seemed to be a minor one but to others it was not and unquestionably the amount of alcohol consumed was the reason that different people could take a different view of what had taken place in the club.  The defendant then came up to the victim and struck him with one blow with an open hand.  It was, however, a very hard blow.  There seems little doubt that it caused the mastoid bone around the victim's left ear to break.  It certainly was hard enough to cause the victim to fall to the ground when he hit his head and lost consciousness.  As a result of the assault the victim has suffered injuries for some time; he was held in hospital for some days and now, some months later, he is still suffering from some effects of that assault.  He describes how he has ringing in his ear and pain and he is anxious about long-term health implications, in particular the fracture to the skull and what he describes as the perforated eardrum. 

2.        The Court has said repeatedly, it was said in AG-v-Cummins [2006] JRC 070 and has been said on many, many occasions, regrettably since then, and those cases are not all before us today but the Court is well aware of the numbers of times we have said it:-

"...those who commit violence in public places in St Helier, particularly if they use weapons, (but the weapon is not necessarily going to affect that policy) will face substantial sentences.  There is too much violence in Jersey, often fuelled by drink and the Court is determined to try and send a message that such matters will not be accepted."

3.        The Court has frequently said that if there are exceptional circumstances then a custodial sentence will be avoided.  It is not possible to give a list of what circumstances amount to exceptional and we have had a number of cases put before us and the Court is those cases has clearly considered that there was something exceptional.  We have looked at the circumstances in this case as hard as we can but we cannot see anything exceptional in them. 

4.        In those circumstances we think the offence crosses the custody threshold and it is inevitable that, despite the fact that it is one blow and despite the fact there was no weapon used, a custodial sentence must be imposed. 

5.        We now turn to look at the mitigation in question to determine how long that sentence should be.  We accept that the defendant has produced some references which very much stand to his credit and we have taken them into account.  We accept the defendant has shown remorse for the offence which he has committed but we take into account that he has previous convictions for grave and criminal assault, admittedly in 2009 but also a breach of the peace by fighting in 2012, indeed including the current two offences, 13 offences in all since 2008 and we think that previous record is material.  Nonetheless in terms of mitigation we take into account that he attended voluntarily at Police Headquarters and we also, of course, take into account his guilty plea. 

6.        Mr Kirkpatrick, we think that the fact that you have recently become a father will make a difference to you.  It may already have made that difference to you and your counsel has explained, as you have heard, how this sentence of custody will have an impact on your young family.  That is something for you to think about.  That is something for you to think about while you serve your sentence because your family will rely on you and you must consider the record that you have, the way in which you react, the reason for the Court's policy about treating grave and criminal assaults in public places fuelled by alcohol has seriously as we do, and that actually you have to apply the control before you take the alcohol because once you have taken it, it is too late; you need to think about that.  On the other hand it was one blow and it was with an open fist, we accept the defendant did not intend the injury but once a person hits another and causes him to fall over onto the pavement, as the case has shown, there are sometimes very serious injuries which are sustained. 

7.        Taking everything into account, the Court is going to reduce the conclusions slightly and you are sentenced on Count 1, which was the breach of the Licencing law, Article 82, to 1 month's imprisonment.  On the grave and criminal assault charge you are sentenced to 9 months' imprisonment and they are to run concurrently, making a total of 9 months' imprisonment. 

8.        In addition you will have an Exclusion Order imposed against you so you are not to attend in 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 12 months from the day of your release from prison.  The licences which are excluded from that are a restaurant licence. 

9.        There is no order for costs. 

10.      Solicitor-General, this Court has noticed that there have been at least two and maybe more cases which have come about following attendances in Tanguy's.  We think that the Attorney may wish to review the circumstances with the Police Licensing Unit as to whether an Article 9 reference would be appropriate. 

Authorities

Licensing (Jersey) Law 1974.

AG-v-Cummins [2006] JRC 070.

Harrison-v-AG [2004] JLR 111.

AG-v-Monks [2012] JRC 003.

AG-v-Deffains [2004] JRC 075.

AG-v-Bisson [2015] JRC 073.

AG-v-Cameron [2016] JRC 107.