Jersey Unreported Judgments

Inferior Number Sentencing - Breach of peace - Grave and criminal assault

[2020]JRC012A

Royal Court

(Samedi)

24 January 2020

Before     :

Sir Michael Birt, Commissioner, and Jurats Nicolle and Grime

The Attorney General

-v-

Richard Murray

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

1 count of:	Breach of the peace by fighting (Count 1).
1 count of:	Grave and criminal assault (Count 2).

Age:  37. 

Plea: Guilty. 

Details of Offence:

Count 1: On 26^th April, 2019, the defendant and his partner were drinking alcohol in The Halkett public house in St Helier.  Due to the defendant's intoxicated state, he was asked to leave.  After leaving the public house, CCTV footage from Burrard Street showed the defendant to be involved in verbal altercations with several members of the public who walked past, causing his partner to intervene and pull him away.  At approximately 11:45pm, the defendant became involved in a verbal altercation with three other males on New Street, this escalated into a fight.  The fight obstructed moving traffic, and involved pushing, shoving and punches being thrown.  Both the defendant and his partner suffered punches to the face, and the defendant was forced to the ground.  The fight finished with the defendant pulling one of the males to the floor and kicking him twice to the torso as police arrived.

Count 2: On 26^th May 2019, the defendant and his partner ("the Complainant") had been drinking alcohol in her flat.  They began to argue and the Complainant said she needed to get out for some space.  As the Complainant attempted to leave, the defendant pushed her onto the bed and climbed on top of her.  He straddled her and held her down by her wrists.  The defendant eventually got off the Complainant and they talked.  Another argument ensued where the defendant pushed the Complainant onto the bed and she shouted at him to stop.  The defendant placed his hand over the Complainant's mouth to stop her shouting.  A neighbour heard the shouting and was afraid the Complainant could be hurt.  The neighbour found the door ajar, he could hear the Complainant shouting "help" and could see her crying and quivering.  As the defendant came to the door to talk to the neighbour, the Complainant exited the flat via the bedroom window and immediately called the police.

Aggravating Feature

Count 1: Under the influence of alcohol, previous convictions for violence-related and public disorder offences (the majority of which were alcohol related), offence committed in a public place, and put civilian witnesses in fear.

Count 2: Under the influence of alcohol, previous convictions for violence-related and public disorder offences (the majority of which were alcohol related), and offence committed in victims home where she was entitled to feel safe.

Details of Mitigation:

Count 1: Benefit of early guilty plea.

Count 2: After initially pleading not guilty plea, the defendant provided a signed basis of plea on 7^th November 2019 (after the Complainant had retracted her complaint) and was therefore granted some credit but not the full third

Previous Convictions:

13 previous convictions for 14 offences, including offences of public disorder and violence.  Of note, the defendant was sentenced to 12 months' imprisonment for a wounding offence in 2004 and was imprisoned for 54 months' for an offence of causing grievous bodily harm in 2008

Conclusions:

Count 1:	100 hours' Community Service Order.
Count 2:	12 month Probation Order and 100 hours' Community Service Order, concurrent.

Total:  12 month Probation Order together with100 hours' Community Service 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 from date of sentence.

Sentence and Observations of Court:

Count 1:	60 hours' Community Service Order
Count 2:	12 month Probation Order and 60 hours' Community Service Order, concurrent

Total:  12 month Probation Order together with 60 hours' Community Service Order.

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 and any licenced premises at which your partner resides or which you need to attend for the purposes of your employment for a period of 6 months from date of sentence.  As an exception, the Court allowed the defendant and his partner to stay at the Royal Yacht Hotel for two nights on 24^th and 25^th January 2020.  This licensed premise was therefore lifted from the exclusion order for these two nights only.

C. R. Baglin Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        Mr Murray, as is clear from your previous record and the offences before us today, you have a problem with alcohol and with aggression.  When you have consumed alcohol you become aggressive and this is shown in the offences before us. 

2.        In relation to Count 1, you were described by an independent passer-by as being antagonistic and trying to start a fight with anyone before you did end up fighting with three other men.  We accept that, as your advocate has urged, we should proceed on the basis they started the actual fighting, but it is perfectly clear from the evidence before us that you were in a mood to fight that evening and were being aggressive.

3.        In relation to Count 2, you were again intoxicated, you got into an argument with your partner during the course of which you pushed her onto the bed and held her down by her wrists.  Even though there was then a chance to cool down and you had a talk, you then again attacked her, pushed her on the bed and placed your hand over her mouth to stop her shouting for help.  It was clearly very frightening for her and her cries for help were such as to attract a neighbour to come and see if he could help.  She was in a very distressed state when seen by the police shortly afterward.

4.        Now Mr Murray, if you carry on like this you are going to spend longer and longer periods in prison.  The Crown accepts that the grave and criminal assault is at the bottom end of the scale of gravity of such assaults, but the Crown says that had it moved for a prison sentence it would have moved for a total of 16 months' imprisonment, being 4 months on Count 1, and 12 months on Count 2. 

5.        We have to say that, given your record and given the circumstances of this offending, that is the very minimum we would have imposed for this offending.  Advocate Bell on your behalf has submitted that 4 months was excessive for Count 1 given the fact that the other participants were apparently dealt with in the Magistrate's Court by way of fine.  We cannot know the full details of their circumstances but on the face of it they appear to have been dealt with very leniently.  The fact is, with your record and the way you were behaving that evening, we cannot possibly say that 4 months would be too much and that a total of 16 months would be too much.  In saying that, we acknowledge Advocate Bell's point that a full discount for the guilty plea should be given, whereas the Crown say they have not.  But we consider that even allowing for a full discount, 16 months would still be an appropriate sentence for the totality of your offending.  As the Court said in AG v Poingdestre [2013] JRC 073

"the Court has made it absolutely plain time and time again, that violence on the streets of St Helier will normally result in a custodial sentence being imposed, particularly where there is the aggravating feature of drunkenness"

And that describes what you did in relation to Count 1 and although it was not on the streets of St Helier, drink also played an aggravating feature in relation to Count 2 where, of course, you assaulted the victim, your partner, in the sanctity of her home.

6.        Despite this the Crown has moved for a non-custodial sentence in this case.  We have had to consider very carefully whether that is the appropriate course of action because, on the face of it, you deserve to go to prison.  But, we have just been persuaded that we should proceed by way of a non-custodial sentence.  The main reasons for that are as follow:

(i)        You have already served the equivalent of a 12 month sentence of imprisonment.  If a sentence of 16 months were imposed that would mean you simply spending a further 2 and a half to 3 months in prison which would be without the benefit of the measures which will be undertaken under a Probation Order to address your offending, and we think that would not be in the interests of society.

(ii)       You say that this is a turning point in your life.  We hope very much that you mean that, but on the basis that you do wish to turn things around this seems the right time to give you an opportunity to prove it and the best way of doing that, we think, will be to impose a Probation Order which will offer you help and assistance in trying you to achieve a change in your life.

(iii)      There is a strong recommendation from the Probation Service in the report; in particular they say that you have agreed that you should attend the ADAPT course which is designed to address domestic violence and we think that would be a positive step. 

(iv)      You have the strong support of your partner.  We have read her letter, we have read your letter of remorse and we take both of those matters into account. 

7.        So putting everything together, together with the other points made by Advocate Bell, we agree that it is not necessary on this occasion to send you to prison.  But despite what your advocate has said, we think there should be a period of Community Service to mark the gravity of your offending but we do think a greater allowance should be made for the time which you have spent in prison, which after all is approximately three quarters of the prison sentence which would otherwise be imposed. 

8.        On Count 1 you are sentenced to 60 hours' Community Service.  On Count 2 you are sentenced to 60 hours' Community Service, concurrent together with a Probation Order for 12 months.  We state that the total prison sentence we would have had in mind if we had not imposed this is 16 months.

9.        We turn next to the Exclusion Order.  Your advocate has urged we should not make it, as it is not necessary.  We cannot accept that.  We think that if you are correct in saying that this is a turning point and you are determined to address your alcohol problem, then barring you from in particular 1^st category premises and others will be of assistance rather than anything else.  So we are going to impose an Exclusion Order but we think a period of 6 months from today would be appropriate. 

10.      So the order is that you are excluded from 1^st, 2^nd, 4^th, 5^th, and 7^th category premises excluding the Multiplex Cinema, Jersey Airport, the ferry terminal at Elizabeth Harbour, any licenced premises at which your partner resides or which you need to attend for the purposes of your employment and we also exclude the Royal Yacht for 24^th and 25^th January so you are free to attend there on these dates.

11.      You have been extraordinarily fortunate.  As I have said earlier, what you did would almost always attract a prison sentence.  So take advantage of this opportunity; in particular the Probation Order.  You will be told to do a lot of things by the Probation Order, to attend meetings, to attend courses and so on.  You must obey everything that the Probation Officer says to the letter, because if you do not you will be brought back here and then there can only be one answer, you will go back to prison.  Similarly with Community Service.  You must attend it promptly and carry out the work assiduously, because again if you do not you will be brought back here and if you are brought back here for a breach of either order we cannot see any alternative but an immediate prison sentence.  So it is up to you.  You have this opportunity.  You say that you wish to change and deal with your problems of alcohol and aggression.  We hope very much that you will take advantage of these orders and not reappear before us. 

Authorities

AG v Poingdestre [2013] JRC 073. 

AG v Wolstenholme and Ors. [2006] JRC 022

Harrison v AG [2004] JLR 111

AG v Crabtree [2017] JRC143

AG v Duffy [2017] JRC 131

AG v Rawlinson [2019] JRC 121

AG v Nicolle [2018] JRC 139

AG v R [2018] JRC 205A