Jersey Unreported Judgments

Inferior Number Sentencing - Grave and criminal assault and Common assault.

[2018]JRC139

Royal Court

(Samedi)

27 July 2018

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Ramsden and Thomas.

The Attorney General

-v-

John Sebastian Nicolle

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

1 count of:	Grave and criminal assaults (Counts 1).
1 count of:	Common assault (Count 2).

Age:  45. 

Plea: Guilty.  

Details of Offence:

The defendant and victim had been in a relationship which commenced in July 2017.  They came to the notice of the Police during the course of their relationship, which could fairly be described as volatile, with alcohol being an issue.  The victim relapsed into alcohol use after she returned from rehab.

On Wednesday 25^th October, 2017, the defendant, victim and a woman, Miss A, were at the defendant's flat drinking.  During the evening there was an argument between the defendant and victim during which there was mutual pushing and shoving.  The defendant was verbally abusive.  It is accepted that the defendant struck her.  She was caused injury and left the property.  It is further accepted that the defendant caused the majority of the injuries recorded subsequently by the Hospital and Force Medical Examiner ("FME") (Count 1).

The following morning the victim returned to the defendant's flat, they reconciled and spent the day together.

On Friday 27^th October the victim was in pain from her injuries and the defendant walked her to the Hospital.  Two days after that (Sunday 29^th October, 2017) the two of them were at his flat, and again they were drinking.  Miss A arrived at some point and joined them.  An argument again ensued between the defendant and victim, and he told her to leave.  He then threw the remnants of his drink over her, grabbed her by the arms and pushed and pulled her towards the door of the property whilst being verbally abusive.  She again sustained injury from being struck and was shut out of the property (Count 2).

The victim then went to Hospital where she disclosed both of the assaults but initially refused to name the person responsible.  She was later examined by the FME who noted bruising to her face, behind her right ear, breast and abdomen.  In all the FME found more than 70 separate injuries, predominately bruises and small abrasions.

Details of Mitigation:

Guilty pleas (although entered a week before trial).

Previous Convictions:

The defendant has 29 convictions for 79 offences, including assaults and grave and criminal assaults.

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total:  2 years imprisonment.

Restraining Order sought pursuant to Article 5 of the Crime (Disorderly Conduct And Harassment) (Jersey) Law 2008 preventing the defendant from contacting the complainant for a period of 5 years to commence from date of sentence in the following terms:

a.      The defendant is prohibited from having any contact, direct or indirect, with the complainant;

b.      The defendant is prohibited from approaching or following the complainant;

c.      The defendant is prohibited from loitering within 50 metres of any premises known to him to be the home address of the complainant;

d.      The defendant is prohibited from entering any part of the premises known to him to be the work address of the complainant or loitering within 50 metres thereof (including but not limited to the League of Friends Café at the Hospital); and

e.      Should the defendant see or come into contact with the complainant in any public or private place he must take immediate action to avoid any breach of this order.

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' to commence from the date of his release from prison.

Sentence and Observations of Court:

Count 1:	1 year and 10 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total:  1 year and 10 months' imprisonment.

Restraining Order granted pursuant to Article 5 of the Crime (Disorderly Conduct And Harassment) (Jersey) Law 2008 preventing the defendant from contacting the complainant for a period of 5 years to commence from date of sentence in the following terms:

a.      The defendant is prohibited from having any contact, direct or indirect, with the complainant;

b.      The defendant is prohibited from approaching or following the complainant;

c.      The defendant is prohibited from loitering within 50 metres of any premises known to him to be the home address of the complainant;

d.      The defendant is prohibited from entering any part of the premises known to him to be the work address of the complainant or loitering within 50 metres thereof (including but not limited to the League of Friends Café at the Hospital provided that the defendant not be barred from attending the General Hospital); and

e.      Should the defendant see or come into contact with the complainant in any public or private place he must take immediate action to avoid any breach of this order.

Exclusion Order granted 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 18 months' to commence from today's date.

R. C. P. Pedley, Esq; Crown Advocate.

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

JUDGMENT

THE COMMISSIONER:

1.        The defendant is to be sentenced for one count of grave and criminal assault and one count of common assault.  These assaults were carried out on his then partner in his flat on two separate occasions when both had been under the influence of alcohol.  The Force Medical Examiner found more than 70 separate injuries, predominately bruises and small lacerations including bruising to her face, ear, breast and abdomen.  We have seen the photographs of the injuries and have read the victim's statement. 

2.        The defendant has an extensive record including two previous convictions of grave and criminal assault.  The social enquiry report says he has a history of violence towards his partners with numerous reports to the police of domestic abuse as well as harassment.  He is assessed at a high risk of further domestic abuse and a high risk of harm to partners and, potentially, members of the public when under the influence of alcohol.

3.        The Crown has referred us to a number of previous cases but, in particular, to Harrison v AG [2004] JLR 111.  We agree with the Crown's response to the criteria set out in that case but, in summary, there was no or little deliberation; the blows were aimed at the victim's head, face and body; the assaults arose as a result of a drunken loss of temper; one blow was sufficient to knock her to the floor; there were, however, no long terms injuries and no weapon was used.  There was no provocation and, of course, the defendant does have a previous record, in particular, a grave and criminal assault committed on his previous partner in 2015.

4.        Taking all this into account the Crown seek a total sentence of 2 years together with restraining and exclusion orders. 

5.        In terms of mitigation the defendant has pleaded guilty.  It was a late plea but it has saved the victim from giving evidence and being cross-examined in Court.  We have taken into account his extremely difficult upbringing which has been described in the Social Enquiry Report as "wretched" and everything else that has been said on his behalf by Advocate Dale.

6.        Domestic assaults of this kind are just as serious, if not more serious, than assaults in a public place and we see no alternative to the imposition of a custodial sentence.  However, we do think that the sentence sought by the Crown is slightly too high, having regard to the other cases that have been shown to us.

7.        We wish to commend the defendant for the very constructive use he is making of his time in prison and not just in the carpentry workshop but in getting a 'B' grade in his maths GCSE and taking his English GCSE, the results of which are expected.  We note that he is feeling very positive for the future and we would encourage him to take advantage of the help that will be available after his release.

8.        In terms of Count 1, you are sentenced to 1 year 10 months' imprisonment; on Count 2 to 12 months' imprisonment concurrent, which makes a total of 1 year and 10 months imprisonment.

9.        We are also going to impose the Restraining Orders sought by the Crown and not opposed by the defendant which are in the Conclusions of the Crown which, we will not read again, but in relation to paragraph (d) the words in brackets "including but not limited to the League of Friends Café at the Hospital" we would insert the following words "provided that the defendant will not be barred from attending the General Hospital" so we will add that to make it clear that he can, of course, attend at the Hospital.

10.      In terms of the Exclusion Order, we grant the orders sought by the Crown but they will be imposed, for a period of 18 months from today's date and we hope that the Exclusion Order will help support the defendant in the changes which he needs and wishes to make to his lifestyle. 

Authorities

Harrison v AG [2004] JLR 111. 

AG-v-Keenan [2018] JRC 104. 

AG-v-Duffy [2017] JRC 131. 

AG-v-Crabtree [2014] JRC 165A. 

AG-v-Smale [2011] JRC 156A. 

AG-v-Horn [2010] JRC 104. 

AG-v-Barwise [2009] JRC 182. 

AG-v-Mears [2008] JRC 217.