Jersey Unreported Judgments

Inferior Number Sentencing - obstructing a police officer - grave and criminal assault.

[2017]JRC098A

Royal Court

(Samedi)

23 June 2017

Before     :

Sir William Bailhache., Bailiff, and Jurats Pitman and Christensen.

The Attorney General

-v-

Colin McDougall

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

1 count of:	Obstructing a police officer (Count 1).
1 count of:	Grave and Criminal assault (Count 2).

Age:  31.

Plea: Guilty.

Details of Offence:

Obstruction

On 28^th October, 2016, the defendant had attended at the property of his ex-partner, the victim, where the pair became involved in a domestic dispute.  He was asked to leave the property but refused to do so and the police were called. 

He was given a lawful order to leave the area and not return to prevent any further breach of the peace.  However, at approximately 1am he returned to the address and caused a further disturbance.  Officers later attended and he was found on top of a flat roof at the property and was arrested by officers.  He was found to be intoxicated. 

Grave and Criminal Assault - 30^th December, 2016.

On 30^th December, 2016, the day of the assault, both parties had exchanged text messages and telephone calls and agreement was reached for the defendant to attend at the victim's home to have dinner.  The text messages can be seen behind Divider 8. 

The defendant arrived at the property at approximately 6pm.  Unknown to him, the victim had planned to go and meet her daughter and grandchild and promptly left soon after he arrived at about 6:30pm.  The defendant remained at the property to look after the children. 

As matters turned out the victim did not visit her grandchild as her daughter asked her to come the next day instead.  The victim therefore arranged to meet with her friend, John Lusk, at a pub, where she consumed three glasses of wine before returning to her home sometime between 8:30pm and 9pm. 

The defendant was annoyed with the victim for going out and drinking with Mr Lusk when he believed he had been invited round to dinner.  The defendant suspects that the victim is in a relationship with Mr Lusk though she maintains they are just good friends and this has been the source of some acrimony between the pair.  As a result an argument began between the two. 

The argument continued for some time and escalated to the point where the defendant decided to leave the property.  Sometime between approximately 9:30pm and 10:30pm, as the defendant walked from the kitchen into the hallway the victim grabbed the defendant and he turned and struck her in the face with a powerful single blow. 

The assault resulted in a significant injury to the victim's top lip, being a full thickness tear in the middle of the top lip, such that her teeth and gums could be clearly seen through the split.  As a result she was treated in the Accident and Emergency department of the General Hospital with 18 stitches and glue. 

As a result of an anonymous telephone call to the emergency number, police officers attended at the property approximately 10:30pm and were let into by the victim's 13 year old son. 

Police constable Ben Dupre activated his body worn camera and walked through the hallway and into the kitchen/lounge using his flashlight where he located the defendant.  The room lights were switched off and the officer described the scene as being in darkness as was shown clearly on his body worn camera.  

Officer Dupre noted in his witness statement that the defendant smelt of intoxicants, his speech was slurred and he formed the opinion he was very drunk.  The police body worn camera footage shows confirms this conclusion. 

The defendant was argumentative, continually raised his voice and used foul language in front of the children and the officer while being questioned.  He denied that any incident had taken place. 

Meanwhile Police Constable Vibert had seen the victim go into the downstairs toilet.  After several minutes she emerged and the injury to her lip could be clearly seen by the officer.  When asked what had happened by PC Vibert, his statement records that she replied; "Colin, he just started battering me."  This is also captured on his body worn camera footage. 

The Officers spoke with each other and the defendant was arrested on suspicion of grave and criminal assault and assistance requested to transport him to the police station and an ambulance was called for the victim. 

The defendant resisted officers handcuffing him in the house and had to be restrained before being placed in the van for transportation. 

The defendant was seen by the Forensic Medical Examiner, Dr Richard Bowley, at 11:50pm that day.  He records that the defendant variously stated he had consumed two glasses of wine and about a bottle of wine.  The doctor notes that he appeared ".......considerably more intoxicated than his expressed level of alcohol consumption."  He was recommended to be rested for 8 hours and then reassessed for fitness to interview. 

Details of Mitigation:

Guilty plea; remorse; Social Enquiry Report and Psychiatric Report. 

Previous Convictions:

DIC (2004); affray and attempted assault police (2010);aAssault police (2011); DIC/No insurance (2012). 

Conclusions:

Count 1:	1 month's imprisonment.
Count 2:	18 months' imprisonment, consecutive.

Total: 19^th months' imprisonment.

Compensation Order sought in the sum of £1,000.

Sentence and Observations of Court:

Count 1:	1 month's imprisonment.
Count 2:	12 months' imprisonment, consecutive.

Total: 13 months' imprisonment.

Compensation Order made in the sum of £1,000 to be paid within a period of 2 years or 3 months' imprisonment in default.

C. R. Baglin, Esq., Crown Advocate.

Advocate S. A. E. Dale for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on an Indictment which contains two counts, one of obstructing a police officer by refusing to obey his orders and the other committing a grave and criminal assault on a former partner.  The second is the more serious of the two offences but they are quite separate and they fall to be treated with consecutive sentences because they are separate offences committed some distance apart. 

2.        I am going to take the grave and criminal assault first.  The Court is clear that the custody threshold has been passed.  To commit a grave and criminal assault on a woman in her own home unless there are some exceptional circumstances is going to result in a custodial sentence and on this occasion after you had been drinking you struck her only one blow but a blow undoubtedly which was delivered with significant force causing her serious injury splitting her lip in a very poor way and causing dental injuries as well.  It is said that you are remorseful and that you accept that you have caused those injuries and there does not seem to us any doubt about that at all. 

3.        It has been said previously that to assault a woman in her own home is a double violation because it is not just the injury that you caused by the assault but also that sense of uncertainty in a place of safety for her.  It is completely unacceptable and the Court does not wish there to be any doubt at all about that message going out to the public, it is completely unacceptable.  It often occurs because the defendant is seeking to exercise some sort of control over the woman in question but you must realise she was entitled to tell you that she did not want you to come around that evening; she was entitled to go out with whomsoever she liked and you are not in a position to get angry with her simply because she did not do as you suggested. 

4.        We recognise that from the text messages that at one stage you thought that you were going to be invited around to her house.  You thought at one stage that you were going to have dinner with her.  We have read those text messages carefully but they conclude with a statement to you "come tomorrow, don't come tonight" and yet you still went round.  So in the circumstances we think the custody threshold as I say has clearly passed.  It was undoubtedly an offence which was significantly affected by the alcohol you had consumed and we are pleased to read that you recognise that you have had a difficulty with alcohol.  It is something which needs addressing and we hope that while you are serving the custodial sentence which we are going to impose that you will get assistance in the prison about how you deal with alcohol in the future because if you do not then there will be continuing difficulties, we have no doubt. 

5.        Having regard to all that has been said very fully on your behalf by Advocate Dale we are going to reduce the conclusions of the Crown in one respect. 

6.        You are sentenced on the grave and criminal assault count (Count 2) to 12 months' imprisonment.  We have had regard to all the circumstance when reaching that conclusion.  On the first count of obstructing a police officer in the execution of his duty (Count 1) you are sentenced to 1 month's imprisonment, consecutive, so the total that you will serve is 13 months' imprisonment. 

7.        We have considered also the question of a Compensation Order.  Your counsel says that you agree that a Compensation Order should be imposed and we are going to impose one.  The suggestion is £1,000 so we make the order that you pay compensation to the victim of £1,000 which you must do within 2 years of the date of your release from custody.  If you do not pay it then you will serve an additional 3 months' imprisonment in default and that will run consecutively as it were so you will be brought back and you will have to serve that prison sentence if you do not pay it within 2 years from the date of release. 

8.        We have to say that we have looked very carefully at this order, despite the fact that it has not really been opposed, because we are concerned that in the light of your maintenance obligations for the children and the backlog that has already been built up and may continue, we would not be surprised if it turns out you do not have the ability to pay.  The Compensation Law allows you to come back to court and ask later on to be discharged from the order.  Your counsel will be able to give you full advice about that but it is important that if you are going to make that application you do so before the end of the 2 years you have been given to pay it.  I am making the remarks to make sure that if the court at that time receives your application it will know that actually we have been concerned about your ability to pay.  It has not been an order where an application for an order has been resisted and we understand that you are willing for us to make the order but we are anxious that you should be able to pay it so you are sentenced to a total of 13 months' imprisonment and a Compensation Order of £1,000 or 3 months' imprisonment in default and you must pay it within 2 years of the date of your release.  The message for you to take away from here is that you simply must control your alcohol intake and you simply must recognise that women are entitled to protection in their own home and the Court has every intention of ensuring that they know that. 

Authorities

AG-v-Horn [2010] JRC 104.

AG-v-Barwise [2009] JRC 182.

Harrison-v-AG [2004] JLR 111.