Jersey Unreported Judgments

Inferior Number Sentencing - common assault, escape from lawful custody, malicious damage.

[2021]JRC204

Royal Court

(Samedi)

23 July 2021

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Ronge and Dulake

The Attorney General

-v-

Robert Kevin Passman

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

First Indictment

1 count of:	Common assault (Count 1).
1 count of:	Escape from Lawful Custody, contrary to Article 21 of the Prison (Jersey) Law 1957 (Count 2).

Second Indictment

Count 1:

Malicious Damage (Count 1).

Age:  31.

Plea: Guilty.

Details of Offence:

In bed with girlfriend.  Punched her to the eye once, causing a severe black eye.  This took place in the context of an argument in relation to the defendant's stated belief that the complainant had arranged for a male to enter his room, have sexual intercourse with her and then anally rape him, whilst the defendant was drugged.  Police had investigated this allegation fully and found to evidence of it.  The defendant was remanded into custody in respect of this allegation and further allegations of which he was later acquitted.  As he was refused bail, he vaulted over the dock, using a crutch, which he then threw at the Greffier.  It took 5 court officers/ushers to restrain him.  The Chief Usher sustained a bump to his head during this incident as his head hit the dock.  Later, whilst in prison, the defendant causing substantial damage to his cell, in protest to not being moved, following his belief that other prisoners through he had contracted Covid-19.  

Details of Mitigation:

Background of mental health problems, followed by death of mother.  Remorse expressed in a letter before the court, albeit late in the day. 

Previous Convictions:

Poor record for affray, grave and criminal assault, malicious damage and common assault as well as offences of a non-violent offences.  No offending since defendant's last release from custody in 2015.

Conclusions:

First Indictment

Count 1:	9 months' imprisonment.
Count 2:	9 months' imprisonment, consecutive.

Second Indictment

Count 1:

3 months' imprisonment, consecutive to Counts 1 and 2.

Total:  1 year and 9 months' imprisonment

Five year' restraining order sought, pursuant to Article 5(2) Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 with the following conditions:

a)      The defendant is prohibited from having any contact, direct or indirect, with the victim save that which is inadvertent or unavoidable;

b)      The defendant is prohibited from approaching or following the victim;

c)      The defendant is prohibited from entering any part of the premises known to him to be the home address of the victim or loitering within 50metres thereof, her current home address, or should she change address in the future, her new address;

d)      The defendant is prohibited from entering any part of the premises known to him to be the work address of the victim or loitering within 50 metres thereof;

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

No costs sought. 

Sentence and Observations of Court:

Conclusions granted.

Crown Advocate R. C. L. Morley-Kirk.

Advocate F. J. Littler for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for three offences, the first being an assault on his girlfriend who was staying with him overnight as she did regularly.  At about 4am his girlfriend awoke to find the defendant watching a video on his iphone, which he believed showed him being raped by an unknown male having been drugged by his girlfriend.  He punched the girlfriend once hard in the face causing a heavy swelling and bruising to her eye.  We have seen the photographs of the injury. 

2.        When questioned by the police he admitted the assault, "one hundred percent", using his words.  He said he was raped the night before and he was well within his right to smack her, as he put it.  There is no evidence of a rape by another, or of another male in the bedroom, or in the house at any time, or of a video showing such a rape.  When in custody he injured his foot by kicking the cell door and had to receive hospital treatment for a pulled ligament and was given crutches. 

3.        The second offence took place in the Magistrate's Court when the defendant having had his bail application refused, vaulted the dock shouting, "so you are sending a rape victim to prison".  He raised the crutches he was carrying at the Greffier and then threw one of those crutches at her, hitting her in the left arm.  A violent struggle then ensued with the Court Ushers and other persons and it took five people to restrain him.  

4.        The third offence took place in prison when he caused extensive damage to his cell, unhappy at not being moved to another cell in a different wing. 

5.        The defendant does have a troubled history.  The Psychiatric Report from Dr Engelbrecht says this at paragraph 12(7):

"[The defendant] suffered considerable abuse from a young age and was placed in care at age 5. He was placed in a Children's Home and lived in foster care where he was psychologically bullied. He was then placed in the care of his maternal grandmother, a reportedly chaotic and abusive household. Instability, lack of consistency in care, exposure to violence, aggression and alcohol/substance misuse characterised his formative years and significantly contributed to the aetiology of his emotional instability."

6.        He was admitted to Brockfield House Medium Secure Psychiatric Unit in November 2013 and found then to be assessed as meeting the criteria for Paranoid Personality Disorder, Dissocial Personality Disorder and Emotionally Unstable Personality Disorder.

7.        Dr Engelbrecht currently diagnoses the defendant as presenting with predominantly emotional unstable paranoid and dissocial personality difficulties.  However, Dr Engelbrecht advises that the defendant does not currently require hospital treatment, although she recommends certain phycological treatment for him.  She says that he is phycological dependant on cannabis and that his use of alcohol is problematic. 

8.        Although there is a gap in his offending from his release from prison in 2015, the defendant has a history of violent and non-violent offences and is assessed at a high risk of re-offending.  In Coelho v AG [2020] JRC 216 the Court noted the greater awareness now of the damaging effects of domestic violence and the hardening of the approach of the Courts to such cases. 

9.        The Court also noted that whilst the factors in Harrison v AG [2004] JLR 111 are useful they are not tailored to cases of domestic violence.  The prosecution, having taken into account the mitigation available to the defendant, move for consecutive sentences for incidents which are entirely unrelated of:

(i)        9 months' imprisonment for the assault,

(ii)       9 months' imprisonment for the escape from lawful custody which carries a maximum term of 10 years, and

(iii)      3 months' consecutive for the malicious damage.  

A total of 1 year and nine months.

10.      The Prosecution also seek a Restraining Order for the protection of the victim of the assault for a period of 5 years noting, in particular that the defendant still appears to believe in the rape allegation as recently as this June.  

11.      Turning to the mitigation put forward by Advocate Littler on behalf of the defendant, he has of course pleaded guilty, and he has shown remorse, and as previously stated he has not offended for some eight years.  The last offence being when he was around 22. 

12.      We have considered his letter and the letter from Sian Huet, and indeed we have considered all of the mitigation put forward and the case law put forward by Advocate Littler on his behalf.  However, we have concluded that the conclusions of the Crown are correct and that the sentences moved for should be consecutive and this having taken into account his mental health issues and difficult background. 

13.      This assault was a vicious assault, committed upon the victim in the privacy of his bedroom where she was spending the night, without warning and constitutes an abuse of power and trust on his part.  The incident at the Magistrate's Court was serious and caused the Greffier and no doubt other persons present to be in considerable fear.  Finally, the incident in his cell was indeed malicious and was untaken in order for the defendant to try and get his own way. 

14.      If you would like to stand, please: 

(i)        In respect of the September 2020 offences.  Under Count 1, you are sentenced to 9 months' imprisonment.

(ii)       Under Count 2, to 9 months' imprisonment, consecutive.

(iii)      In respect of the 20^th November 2020 offence, you are sentenced to 3 months' imprisonment, consecutive.

A total of one year and nine months imprisonment.

15.      We are also going to make the Restraining Order for the period of 5 years sought by the prosecution on the conditions set out in paragraph 37 of the conclusions, and we note incidentally that Dr Engelbrecht states in her report that in prison you will receive support for the issues that you have.  Thank you.  

Authorities

Prison (Jersey) Law 1957. 

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

Coelho v AG [2020] JRC 216. 

Harrison v AG [2004] JLR 111. 

AG-v-Calvert [2012] JRC 236

AG-v-Adams [2021] JRC 123