Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault

[2018]JRC144

Royal Court

(Samedi)

10 August 2018

Before     :

Sir Michael Birt, Esq., Commissioner, and Jurats Grime and Ramsden

The Attorney General

-v-

F

Sentencing by the Inferior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 15th June, 2018, following guilty pleas to the following charges:

2 counts of:

Grave and criminal assault (Counts 2 and 3).

Age:  41.

Plea: Guilty.

Details of Offence:

The defendant and his estranged wife have 3 children, one of whom is the complainant.  Following a domestic incident in the family home, all three children attended at Police Headquarters to be interviewed under the Achieving Best Evidence guidelines ("ABE").  During these interviews, the complainant disclosed two specific occasions when he had been assaulted by the defendant.

The complainant recalled being hit by the defendant with a belt on one occasion on or around his back towards his bottom on a date between 1 September 2015 and 22 September 2017. (Count 2).  He was between 5-7 years old at the time of this assault.  He described it as being "very painful" but did not specify whether any injuries were caused (Count 2).

The complainant recalled another occasion when, again during the same time period, he was hit by the defendant with a wooden spoon (Count 3).  The complainant described being hit in the middle of his back with a wooden spoon and being bruised by being hit in such a way.

Details of Mitigation:

Crown - Guilty plea, remorse.

Advocate Steenson - The child was dressed when hit.  This is an extremely sad case.  Good husband and father though not perfect.  Lost his childhood sweetheart and life fell apart.  Not a case of prolonged abuse.  Both instances isolated.  Children wanted for nothing.  Excellent employment record and references.  SER notes progress that should be encouraged.  Almost completed ADAPT course and responded well to Probation order.  No breach of bail or other conditions.  Custodial sentence would be detrimental

Previous Convictions:

1 previous conviction for common assault against his now estranged wife.

Conclusions:

Count 2:	9 months' imprisonment.
Count 3:	9 months' imprisonment, concurrent.

Total: 9 months' imprisonment.

Restraining order sought pursuant to Article 5 of the Crime (Disorderly Conduct Harassment) (Jersey) Law, 2008, preventing the defendant from contacting the complainant, his two siblings and his estranged wife for a period of 5 years from the date of sentence.

Sentence and Observations of Court:

Count 2:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, together with a 9 month Probation Order
Count 3:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, together with a 9 month Probation Order, concurrent.

Total: 120 hours' Community Service Order, equivalent to 6 months' imprisonment, together with a 9 month Probation Order, concurrent on each count.

No Restraining Order made in respect of estranged wife as this is already dealt with by the Magistrate's Court Order (which was subject to a pending appeal).

Restraining order made pursuant to Article 5 of the Crime (Disorderly Conduct Harassment) (Jersey) Law, 2008, for a period of 3 years from the date of sentence in the following terms:

(i)      The defendant is prohibited from having any contact, direct or indirect, with the three children, except as ordered by the Family Division of the Royal Court.

(ii)     The defendant is prohibited from approaching or following the three children, except as ordered by the Family Division of the Royal Court.

(iii)     Should the defendant see or come into contact with any of his three children in any public or private place, other than in accordance with an order of the Family Division of the Royal Court, he must take immediate action to avoid any breach of this order. 

Deportation considered but not ordered.

Ms E. L. Hollywood, Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE commissioner:

1.        You assaulted your youngest son on two occasions when he was between 5 and 7.  On the first occasion you struck him once with a belt on his back towards his bottom, and on the second occasion you hit him in the middle of his back once with a wooden spoon.  Both were over his clothing, and both appear to have taken place as a result of loss of temper or frustration on your part that he was not complying with your wishes. 

2.        This was completely unacceptable behaviour.  A child is entitled to feel safe and secure in his home and not to be the subject of assault by his father.  But we do accept that these were two isolated incidents so far as your children are concerned, although it has to be said that in September of last year you committed a common assault on your wife which has been dealt with by the Magistrates Court. 

3.        In mitigation, Advocate Steenson has emphasised the following:-

(i)    He has referred to the fact that you have pleaded guilty and saved your son from having to give evidence. 

(ii)   He has emphasised your remorse and that is supported by the Probation Report. 

(iii)  He has also spoken of your excellent work record.  We have received a very good reference from your employer for whom you have worked for 17 years.  You clearly are a hardworking man and have been successful in that you have purchased a home for your family. 

(iv)  He emphasised that you have responded well to the Probation Order made in February by the Magistrates Court.  You have almost completed the ADAPT course which deals with domestic violence, and you have responded very positively to that.  He has pointed to the recommendation for Probation and Community Service from the Probation Report, and to the fact that the effect on you has been very considerable; you have lost your family and not seen your children for nearly a year.  The latter point is of course true but nevertheless it has arisen out of your actions, not theirs.

4.        Nevertheless in all the circumstances we do not think it is necessary to impose a prison sentence, despite the serious view which the Court takes of domestic violence.  The sentence of the Court, concurrently on Counts 2 and 3 is that you be subject to a Probation Order for 9 months and that you undertake Community Service for 120 hours, which we say is the equivalent of 6 months' imprisonment.  I must of course warn you that if you breach any of these, if you do not do what you are told to by the Probation Officer, or the Community Service organiser you will be brought back here and at that stage it is highly likely you will go to prison.

5.        As we say we have considered carefully whether prison was necessary, but we think on the facts of this particular case it would not be in the interests of your family whom you maintain, you, or the wider society.

6.        We have considered deportation.  The Crown emphasised that it was arguable that your continued presence was detrimental.  We are quite satisfied it would be detrimental and therefore the first part of the test is met.  However, we agree with the Crown that it would be disproportionate to order deportation in view of the length of time you have been here and your family connections here and accordingly we make no recommendation.

7.        We turn next to the question of Restraining Orders.  First we are not going to make a Restraining Order in respect of your former wife as suggested.  That has already been dealt with by the Magistrates Court and we see no point in duplicating what that court has already done.  However, we are satisfied that it would be right to make a Restraining Order for the protection of the children.  As to the terms they are broadly as set out.  So you will be:-

(i)    Prohibited from having any contact, direct or indirect, with the three children, except as ordered by the Family Division of the Royal Court;

(ii)   Prohibited from approaching or following the three children, except as ordered by the Family Division of the Royal Court;

(iii)  Should you see or come into contact with any of your three children in any public or private place, other than in accordance with an order of the Family Division of the Royal Court, you must take immediate action to remove yourself from that situation. 

As to the period, we think it should be 3 years from today's date. 

8.        In relation to the Restraining Orders the Crown has suggested that we should now impose a default sentence of 2 years' imprisonment or a fine.  We have to say Advocate Hollywood, we did not understand that at all.  The Law simply provides, as one would expect, that if there is a breach of a restraining order, a person then commits an offence and he will be liable to imprisonment for a term of 2 years or a fine.  That means a maximum of 2 years.  It would be quite wrong to fix now a default sentence, because it would all depend on the circumstances at the time, and the Law most certainly does not require it.  So we would not wish to see any default sentence fixed now and we hope never to see a recommendation like that in future.

9.        The final point we wish to make on the Restraining Orders is that whether you can see your children or not will depend upon the Family Division of the Royal Court.  You have the right to apply to the Family Division for contact with your children and at that stage the Family Division will balance all the matters and have regard to the best interest of the children, taking into account on the one hand the need to protect them, and on the other the desirability where possible of maintaining contact with a parent.  That will be for the Family Division to decide but you do have the right to make such an application.  The terms that we have imposed mean that you do not have to come back to this court if the Family Division agrees you can see the children.  But unless you make an application and that Court makes an order, then these orders apply.

10.      The final point we wish to make is this.  The Magistrate's Court in our judgment should not have sentenced you for the assault on your wife when it knew that you were facing the current charges.  These charges were laid well before the sentencing for the assault on your wife.  It is normally the case that it is important that one court should deal with all the criminal conduct in question so that an overall view can be taken.  That has not happened on this occasion and in our judgment the matters should all have been dealt with at the same time. 

Authorities

Harrison-v-AG [2004] JLR 111. 

AG-v-Horn [2010] JRC 104. 

AG-v-G [2016] JRC 095. 

AG-v-A [2013] JRC 129. 

AG-v-Q [2015] JRC 216. 

AG-v-Gallie [2017] JRC 104. 

AG-v-Jordan and Jordan [2011] JRC 003. 

Comacho-v-AG [2007] JLR 462. 

Whelan on Aspects of Sentencing in the Superior Court of Jersey. 

Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008. 

Costs in Criminal Cases (Jersey) Law 1961. 

Children (Jersey) Law 2002