Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2017]JRC036

Royal Court

(Samedi)

3 March 2017

The Attorney General

-v-

Ryan Michael Giles McCabe

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

Age:  31.

Plea: Guilty.

Details of Offence:

In the early hours of 20^th June, 2016, McCabe and another man encountered the victim by chance in the Colomberie area.  The victim was extremely drunk.  The three men walked together to Don Road.  A couple living in Don Road were awoken by the sound of shouting and looked out of the window to see two men, one of whom was McCabe, kicking and stamping on a the victim who was lying on the road.  The police were called, and the husband tended to the victim until an ambulance arrived.  The victim does not remember anything of the evening from the time he met McCabe to waking in hospital the next day. 

The victim was taken to A & E, where he received urgent treatment as he was vomiting and unable to keep his airway open.  He was kept in hospital overnight.   The victim suffered multiple abrasion and bruises, notably a bruise to the forehead which showed the tread pattern of a shoe. 

States of Jersey Police issued a social media appeal on 23^rd June, 2016.  The following day, McCabe handed himself in at Police Headquarters.  He was interviewed and gave "no comment" answers.  A pair of shoes seized form McCabe's home was sent for forensic testing.  Blood found in the stitching matched the victim's DNA profile, and the tread pattern matched to marks on his forehead.  McCabe was re-interviewed, and again gave "no comment" answers. 

On Indictment, McCabe entered a guilty plea on a basis that was agreed with the Crown, namely that he had met the victim only minutes before the assault, that the victim was initially the aggressor, having punched McCabe to the ground, knocking him unconscious.  When he came round, the victim was standing on McCabe's ankle.  The second man pushed the victim, McCabe got to his feet.  He was angry, and instead of walking away, lost his temper and kicked the victim no more than six times to the upper body and head.  He accepted causing the shoe print injury. 

Though a second man was jointly charged with this offence, the Crown accepted a not guilty plea from him. 

Details of Mitigation:

Plea, provocation, no previous convictions for violence.

Previous Convictions:

Two previous convictions - an illegal entry when he was 15, and a disorderly on licensed premises in Guernsey in 2014. 

Conclusions:

If a non-custodial sentence is imposed the Crown seeks a contribution of £1,000 towards the prosecution costs.

Sentence and Observations of Court:

C. M. M. Yates, Esq., Crown Advocate.

Advocate M. J. Elkes for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced today for one count of grave and criminal assault.  The assault was a vicious one and was serious.  Your victim was on the ground and, whilst he lay motionless and vulnerable, you kicked him in the body and to the head.  You left tread marks from your shoes on his head.  It is clear to us that alcohol played a significant part in this incident, both as to the behaviour of your victim and your response to that behaviour.  Kicking anyone in the head with a shod foot is extremely dangerous and is always taken seriously by the Court, as the nature of the injuries are entirely outside the control of the assailant and you and, of course, your victim are extremely lucky that the consequences of this assault were not much more serious than they were. 

2.        You have entered a guilty plea and that has been accepted by the Crown.  We accept on that basis that you were provoked in this case and in fact were first struck by the victim and put to the ground.  By the time you had retaliated, however, he was already backed away from you and vulnerable and on the ground himself and your response went far beyond anything that could be considered justified or proportionate in the circumstances. 

3.        We have read with care the social enquiry report and your letter of remorse which we take as genuine.  You also have positive references from your employer and from others and it is clear from the absence of a significant or indeed material record that this offence was out of character for you.  We understand from the social enquiry report some of the factors that may have added to the stress that you were under at the time. 

4.        The Court's policy in cases such as this is clear.  As the Court said in the case of AG-v-Silva [2015] JRC 153, "Those who commit violent assaults on the streets of St Helier will be sent to prison unless there are exceptional circumstances."  Accordingly we have asked ourselves whether or not there are exceptional circumstances in this case and we find that there are no exceptional circumstances.  You certainly have mitigation available to you and we have made some reference to it but that does not of itself amount to exceptional circumstances which would justify a departure from the Court's stated policy. 

5.        Accordingly, you will be sentenced to a period of imprisonment, but the question that has occupied the Court is what length that imprisonment should be?  I have to tell you that the Jurats have differed in their view.  One of the Jurats was firmly of the view that the Crown's conclusion was correct and that was the appropriate sentence.  The other felt that an accommodation could be made to reduce those conclusions in the light of the mitigation available to you, and the matter has therefore fallen to me to decide how it should be resolved.  

6.        In the light of all of the factors in this case, including and, importantly, the matters raised in the social enquiry report, which I do not need to go into in these remarks, and the other matters raised in the letters, I believe that we can exercise a measure of mercy and reduce the conclusions.  

7.        Accordingly you are sentenced to 9 months' imprisonment. 

Authorities

AG-v-Silva [2015] JRC 153. 

Harrison-v-AG [2004] JLR 111. 

AG-v-Goodchild [2016] JRC 128b.