Jersey Unreported Judgments

Inferior Number Sentencing -grave and criminal assault.

[2016]JRC154

Royal Court

(Samedi)

2 September 2016

Before     :

Sir Michael Birt, Commissioner, and Jurats Liston and Sparrow

The Attorney General

-v-

Eoghan McCullagh

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

1 count of:

Grave and criminal assault (Count 1).

Age:  22.

Plea: Guilty.

Details of Offence:

The defendant and the victim were unknown to each other at the material time.  In the early hours of Friday 18^th March, 2016, the offence was committed within the licensed premises known as Chambers, on Mulcaster Street.  The defendant and the victim had been out socialising with their respective friends in different locations.  Both men had been drinking during the evening. 

CCTV footage from within Chambers shows the defendant and Victim exchanging words in the bar area at approximately 12:30 am.  During this time the victim can be seen turning his back on the defendant on more than one occasion.  At one stage the defendant removed one of his shoes and approached the victim holding the shoe in his right hand.  The defendant was led away by an unknown female.  The defendant then returned and continued to exchange words with the victim.  The defendant and victim were stood facing each other and the victim leaned towards the defendant, the victim immediately reacted to this by striking the victim.  The defendant was holding a glass in his right hand which made contact with the victim's face and smashed upon impact.  The victim suffered numerous cuts to his face and one of the victim's friends, who was stood nearby, was also hit by shards of glass and suffered cuts to his face. 

Details of Mitigation:

Guilty plea, genuine remorse, provocation, no intention to use the glass as a weapon, excellent character (charitable and voluntary work) and work record, character references.

Previous Convictions:

None.

Conclusions:

Count 1:

15 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 date of release from prison. 

If non-custodial sentence imposed the Crown seeks costs toward the prosecution in the sum of £1,000.

Sentence and Observations of Court:

Count 1:

210 hours' Community Service Order, equivalent to 15 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 date of sentence but can attend for work charitable purposes. 

No Probation Order made.

No costs ordered.

No compensation ordered.

The Attorney General appeared for the Crown.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE commissioner:

1.        The Crown accepts that this was not a deliberate glassing.  During an altercation, the victim moved suddenly towards you, causing you instinctively to strike out at him, forgetting that you had a glass in your hand.  It is not clear apparently from the CCTV whether this was more in the nature of a punch or in the nature of a shove.  

2.        However, even in such cases, the Court's policy is that a prison sentence is normally required in order to discourage violent behaviour, and to reflect the risk of serious injury which conduct like this carries.  As the Court said in AG-v-Viveiros [2014] JRC 162A at paragraph 6:-

"We want to emphasise the mere fact that a person forgets he is holding a glass when he tries to punch someone is not sufficient to lead to a non-custodial sentence whether or not it is technically called a glassing.  On the contrary, such an assault will inevitably lead to a prison sentence if it is unprovoked, and may often do so even where there is provocation.  It all depends on the level of provocation and the other mitigation available.  But a defendant must take the consequences of his actions whether or not they were intended."

3.        Now Advocate Bell submits that putting together the facts of the offence, including provocation and the exceptional mitigation, means that we can proceed by way of a non-custodial sentence. 

4.        As to the offence itself, in the absence of anything to the contrary, the Court proceeds on your version of events, namely that the victim made homophobic remarks towards you.  On this basis there was considerable provocation. 

5.        As to mitigation, Advocate Bell has referred to a number of matters including the following.  First your guilty plea, second the fact that you have no previous convictions, thirdly, much more than that, he points to your excellent character.  We have read of the voluntary and charitable work which you have undertaken, which for someone of your age is extremely commendable.  We have read of your excellent work record.  We have read the character references from a substantial number of people, all of which speak powerfully of your many good qualities. 

6.        We are satisfied that this was wholly out of character.  Your Advocate described you as mild-mannered, affable and sociable.  We think from the evidence before us that is probably a fair description.  You have been described by somebody who knows you well as timid.  The Court thinks that that is, again, probably a fair description and we have noticed your presentation in Court before us today. 

7.        Fourthly, Advocate Bell refers to your remorse.  Defendants quite often say they are remorseful.  More often than not they mean they are sorry that they have been caught and are now facing punishment.  But in your case we are satisfied that there really is genuine remorse.  That is put forward by the social enquiry report and we are satisfied that you are indeed extremely sorry for what has occurred and have reflected on events since.  We note, for example, that you have not consumed alcohol since this incident. 

8.        Next, Advocate Bell referred to the low risk of re-offending and we note there is no suggestion of any need for a Probation Order. 

9.        Next he referred to your own mental health issues, and we do note that you had (just before this incident) started taking a new drug which was prescribed, and that that has a particularly adverse effect on some people when combined with alcohol.  Foolishly you took alcohol with it, but we are willing to accept the combination of that drug and alcohol may have contributed to what occurred that night. 

10.      So putting all these matters together, we have come to the conclusion that, notwithstanding the Court's clear general policy on violence, the public interest does not, on this occasion, require us to send you to prison. 

11.      We think the conclusions moved for by the Crown were perfectly correct and therefore we are going to impose community service as a direct alternative to prison, and we are going to impose 210 hours' Community Service Order, which is the equivalent of fifteen months imprisonment, which is the sentence which we would have imposed. 

12.      As to an Exclusion Order, we think it is right to make the Exclusion Order asked for, for a period of 12 months, but we will build in an exception that you can go on licensed premises if your presence is necessary for your work or for any of the charitable purposes which you are supporting. 

13.      Finally, in view of your financial position as disclosed in the background report, we make no orders to costs. 

Authorities

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

Costs in Criminal Cases (Jersey) Law 1961.

Harrison-v-AG [2004] JLR 111.

AG-v-Cummins [2006] JRC 070.

AG-v-Saville [2007] JRC 110.

AG-v-Cameron [2016] JRC 107.

AG v Viveiros [2014] JRC 162A.

AG-v-Abreu [2014] JRC 077.

AG-v-Furzer [2013] JRC 103.