Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - common assault.

[2019]JRC011

Royal Court

(Samedi)

1 February 2019

The Attorney General

-v-

Kenneth Gordon Chalk

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

Age:  35. 

Plea: Guilty.

Details of Offence:

In December 2008, the complainant and defendant were both in the Royal Yacht hotel.  The complainant was standing near to the bar and the defendant was standing behind the complainant with a group of friends.  As the group attempted to take a group photo the defendant and his friend knocked the back of the complainant's head with his elbow.  The complainant pushed back against the defendant and caused the defendant and his friend to turn around.  The defendant was then caught on camera to be speaking to the complainant in an aggressive manner.

At one point during the argument the complainant touched his mouth area and wiped his hand onto the defendant's jacket.  The defendant then, whilst holding a pint glass, thrust the glass directly into the victim's face whilst telling the complainant "cop this you fucking bastard".  The glass hit the complainant's forehead, nose and top of his lip.  Fortunately, the victim only suffered from a soft tissue injury, which required no treatment, together with a 1cm laceration to his nose.  The defendant left the bar after the attack before the security guards arrived.  The police attended at the defendant's address several days later, but were informed that the defendant had left the island.

In the early hours of a morning in September 2018 the defendant was caught on CCTV at the Taxi rank at the weighbridge getting into a taxi.  The complainant was signalled to approach the second taxi parked at the rank and began walking towards it.  The defendant at this stage was nearly fully inside the first taxi as the complainant walked past.  The complainant knocked against the car door pushing it against the defendant and continued walking towards the second taxi.  The defendant immediately ran after the complainant and punched him once to the right side of his neck from behind, which caused the complainant to fall face first onto the floor.  The security guards at the rank restrained the defendant on the floor, but he broke free before the police arrived and ran towards La Route du Fort.  Police in attendance located the defendant hiding in a bush next to the Weighbridge.  During subsequent interview he denied being in the Island in 2008, and denied hitting anyone in 2018.

Details of Mitigation:

Guilty plea. 

Previous Convictions:

10 previous convictions for 18 offences, including assault and assault to injury.

Conclusions:

Total:  24 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 2 years from the date of his release from prison.

Sentence and Observations of Court:

Total:  18 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 2 years from the date of his release from prison.

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

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced for one count of grave and criminal assault committed in December of 2008, and one count of common assault committed in September of last year.  The Crown has set out the details of the offending.  Of course, the grave and criminal assault is the more serious of the two charges, and that took place when you struck out following little provocation at your victim's face with your right hand whilst holding a beer glass.  That you intended this assault is clear from you saying "cop this" to your victim whilst thrusting the glass into his face. 

2.        It was extremely fortunate that the injuries were not more severe, and as we said in the AG v Cameron [2016] JRC 107:

"3.      A glassing, whether intentional or unintentional, is of course particularly dangerous as the person who holds the glass has no control over the injuries that the victim suffers and they could in this case have been very much more severe than they were.  We repeat the words of the Court in AG-v-Viveiros [2014] JRC 162A in which the Court said:-

"6       We want to emphasise that 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.        We do not consider that the provocation for the grave and criminal assault, such as there was, would have come close to justifying or explaining the assault and it is clear that it was very much a drink fuelled incident.

4.        We note that you left the island and did not answer to this charge at the time, but we accept that you have returned on more than one occasion and you have not been arrested and therefore were not aware that it was outstanding against you.  We think therefore we can afford some weight to delay in this case. 

5.        The common assault had nothing by way of provocation, it was also an alcohol based assault and it represented a completely disproportionate reaction to the fact that the victim had pushed the taxi door whilst walking passed.  To our mind this cannot possibly amount to provocation, and, of course, you ran off but were found shortly afterwards by a police officer. 

6.        We note the mitigation available to you, including your guilty pleas.  We have read with care the references that have been provided on your behalf, and, as your counsel has said, they do indeed show a very different side of your character which we take into account.  We have also read your letter and we accept that the remorse that you express in that letter is genuine and that you now have very clear aims as to how you wish your life to be in the future.  Your record however, is not a good one and there are a number of instances of violence in your past and unsurprisingly you are assessed as presenting a high risk of reconviction. 

7.        We accept the Crown's characterisation of this assault against the Harrison criteria (Harrison v AG [2004] JLR 111) except as to whether or not the glass was seized or carried.  We agree, as your counsel has urged, that it was not carried as a weapon and therefore we should treat it as being seized on the instant.

8.        The policy of the Court is as stated by the Crown and a custodial disposal of this matter is in our minds an inevitable consequence of the facts.  We think that we can make rather more allowance for mitigation than was afforded by the Crown in its conclusions.  Accordingly with regard to Count 1 the grave and criminal assault you are sentenced to 12 months imprisonment; Count 2, the common assault, 6 months' imprisonment, consecutive, making a total of 18 months' imprisonment.

9.        We make an Exclusion Order in the terms set out by the Crown for 2 years from the date of your release. 

Authorities

AG v Cameron [2016] JRC 107. 

Harrison v AG [2004] JLR 111. 

AG v Cummins [2006] JRC 070. 

AG v Saville [2007] JRC 110. 

AG v Iles and Chalk [2007] JRC 096. 

AG v Cameron [2016] JRC 107. 

AG v Aubert [2018] JRC 195. 

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