Jersey Unreported Judgments

Inferior Number Sentencing - assault - grave and criminal assault

[2019]JRC168

Royal Court

(Samedi)

30 August 2019

Before     :

J. A. Clyde-Smith O.B.E., Commissioner and Jurats Blampied and Pitman

The Attorney General

-v-

Brogan Allen

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

1 count of:	Assault (Count 1).
1 count of:	Grave and criminal assault (Count 2).

Age:  24. 

Plea: Guilty. 

Details of Offence:

On Wednesday 20^th February, 2019, the two female victims went out for an evening with friends.  At just after midnight they were in a local bar and one of the victims saw the boyfriend of the defendant whom she knew in passing.  The two females sat with the defendant's boyfriend to chat.

 

The defendant was talking to two other females across the room.  After a while, she stood up and approached the group - she did not know either victim.  She immediately, and without provocation, pushed the first victim and threw her drink over her, in the process scratching her forehead. 

 

Her boyfriend stood up and pushed her away, Victim 2 also stood up as the defendant threw the glass she was holding, hitting her in the face.  The impact knocked out one of her front teeth and caused a deep cut to her upper lip, which was stitched but will leave a scar.  The defendant and her boyfriend left Tanguy's and walked in the direction of Charing Cross.

 

The defendant self-presented at Police Headquarters on 21^st February 2019, following unsuccessful attempts by the Police to locate her.  She gave a 'no comment' interview and was later identified by the victims in a video identity parade.

Details of Mitigation:

Guilty pleas, self-reporting to Police, genuine remorse, written to both victims expressing her remorse, good employment record, letters of reference, support of family and friends.

Previous Convictions:

Previous conviction for a serious grave and criminal assault in 2013 when she punched a girl unconscious in the street.  Other convictions for drink related offences.

Conclusions:

Count 1:	6 months' imprisonment.
Count 2:	18 months' imprisonment, concurrent.

Total:  18 months' imprisonment.

Compensation order sought in the sum of £250 for Victim 1 and £3,399 for Victim 2.  Orders to be paid at a rate of £50 per week to commence 3 months from the date of release from prison.  There will be a default sentence of 21 days in relation to order made in favour of Victim 1 and 12 weeks' imprisonment in relation to the compensation order made in favour of Victim 2.

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 24 months from today's date.

Sentence and Observations of Court:

Count 1:	6 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.

Total:  15 months' imprisonment.

Compensation order made in the sum of £250 for Victim 1 and £3,399 for Victim 2 to be paid at the rate of £50 per week to commence 3 months from the date of release from prison.  There will be a default sentence of 21 days in relation to order made in favour of Victim 1 and 12 weeks' imprisonment in relation to the compensation order made in favour of Victim 2. 

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 24 months from today's date.

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

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant is to be sentenced for one count of common assault and one count of grave and criminal assault.  The assaults took place on the same occasion.  The defendant and her partner had attended Tanguy's.  The defendant had consumed a large amount of alcohol.  Her partner went to sit and at some point the two female victims in this case went to sit by him where they were engaged in conversation.  One of the victims knew her partner.  Without warning and/or any provocation the defendant rushed up to them and pushed the first victim throwing her drink over her.   In the process she caused an abrasion to the first victim's forehead probably with her fingernails.  The defendant's partner stood up and pushed her backwards in order to restrain her, whereupon the defendant threw her glass which struck the second victim directly in the face.  The injury to the first victim was minor, hence the charge of common assault, but the second victim firstly lost her upper tooth and secondly suffered a cut of her upper lip which required stiches and which will leave a permanent scar. 

2.        This is not the first occasion that the defendant has committed an unprovoked attack having consumed an excessive amount of alcohol, in that she pleaded guilty to a grave and criminal assault in August 2013 when she was 18 in which she punched repeatedly and knocked unconscious a young woman outside McDonald's, for which she was sentenced to 1 years' probation.  We also note that in 2009 the defendant was given a written caution for a grave and criminal assault on a fellow female pupil at school and there are two other convictions involving alcohol. 

3.        The defendant has been assessed at a medium risk of reconviction. The Crown has taken us through the criteria in the well-known case of Harrison v AG [2004] JLR 111 and there are differences between the Crown and the Defence in relation to some of those criteria.  Having taken both sets of submissions into account our position and view is as follows:

(i)        The defendant approached both victims with the intention of confronting them.

(ii)       We accept that the glass was not aimed at the second victim but thrown randomly.  This conclusion is reached having seen the video of the incident with counsel in chambers.

(iii)      The defendant did act through a loss of temper having seen her partner talking to the two victims.

(iv)      Judging by the injury to the second victim the glass must have been thrown with some force.

(v)       A weapon was used, namely the glass but that happened to be in her hand and was therefore in our view seized on the moment.

(vi)      There was no provocation; the defendant did not know the victims.

(vii)     The defendant, as we have said, does have previous convictions.

4.        As the Crown say the Court has a clear policy regarding drunken violence in public places and in particular to the use of a glass which can cause such terrible injury.  Unless there are exceptional circumstances a custodial sentence will be imposed.

5.        The Crown have referred us to a number of earlier cases namely AG v Aubert [2018] JRC 195 AG v Poingdestre [2018] JRC 029, AG v Saville [2007] JRC 110 and AG v Cummins [2006] JRC 070, all of which cases involve grave and criminal assaults, but inevitably on different facts and of course with differing mitigation.  From those cases the Crown seek a sentence of 18 months' imprisonment for the grave and criminal assault and 6 months' imprisonment for the common assault concurrent. 

6.        In terms of mitigation, put forward most ably by Advocate Harrison, the defendant has pleaded guilty.  She did self-report to the police the next day.  She has shown remorse which we accept is genuine and she has accepted that these attacks were entirely unprovoked.  Furthermore she has written to the two victims expressing that remorse and apologising.  She also accepts that she has a problem with binge drinking and alcohol and has anger and aggression issues.  She informs us that a week after the incident she attended upon her doctor for a referral for therapy to confront these issues.  Finally, she has a good employment record and the support of family and friends and we have taken into account all of the letters that have been written. 

7.        Drunken violence of this kind is completely unacceptable and despite the mitigation put forward by Advocate Harrison we have no doubt that a custodial sentence must be imposed.  However, we have accepted the defence position in relation to some of the Harrison criteria and we disagree with the Crown that the defendant's failure to answer at her interview with the police on legal advice can constitute an aggravating factor.  We are therefore going to reduce somewhat the conclusions of the Crown which in our view are otherwise correct.

8.        On Count 1 you are sentenced to 6 months' imprisonment, on Count 2 to 15 months' imprisonment concurrent, which means a total sentence of 15 months' imprisonment.

9.        In terms of compensation, having taken into account the personal impact statements of the two victims we agree that compensation orders here are appropriate.  The sums sought have been arrived at after consultation with the Sentencing Council Guidelines and we agree with them.  Accordingly the defendant will pay compensation of £250 to the first victim and £3,399 to the second victim.  That compensation is to be paid at the rate of £50 per week starting 3 months from the defendant's release from prison and it is to be used first to pay off the compensation order in favour of the first victim.  There will be default sentence of 21 days imprisonment in relation to the order made in favour of the first victim and 12 weeks' imprisonment in relation to the compensation order made in favour of the second victim. 

10.      We make an order excluding the defendant from 1^st, 2^nd, 4^th, 5^th, and 7^th, category licenses excluding the Multiplex Cinema, the Jersey Airport the ferry terminal at Elizabeth Harbour for a period of 24 months from today's date.

Authorities

Harrison v AG [2004] JLR 111. 

AG v Aubert [2018] JRC 195. 

AG v Poingdestre [2018] JRC 029. 

AG v Saville [2007] JRC 110.

AG v Cummins [2006] JRC 070. 

Criminal Justice (Compensation Orders) (Jersey) Law 1994

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

AG-v-O'Shea [2010] JRC 040. 

Sentencing Council Guidelines - Suggested starting points for physical and mental injuries