Jersey Unreported Judgments

Inferior Number Sentencing - common assault - reasons for the sentence imposed.

[2022]JRC133

Royal Court

(Samedi)

16 June 2022

The Attorney General

-v-

Joshua Clark Lyons

S. C. Thomas Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant

JUDGMENT

THE COMMISSIONER:

1.        On 18^th March 2022, the Defendant was convicted by the jury following an Assize Trial of one count of common assault, as an alternative to the more serious charge of grave and criminal assault.  He was acquitted of three other charges of grave and criminal assault that he faced, all of which arose after events in the Defendant's flat on the afternoon of 4^th August 2021.

2.        An issue arose between the prosecution and the Defendant as to the facts upon which the Defendant should be sentenced and pursuant to the provisions of Article 50 of the Criminal Procedure (Jersey) Law 2018, the Commissioner expressed the view to the sentencing court that it should pass sentence on the basis of the interpretation most favourable to the Defendant, namely his account of what led to the common assault and what that common assault amounted to.

3.        At the start of the hearing, and in the absence of the Jurats, Advocate Steenson raised before the Commissioner four concerns in relation to the documents before the sentencing Court which he said could give rise to legal argument to be heard on another day:

(i)        Caselines contained a copy of the prosecution case summary prepared for the trial which set out the allegations of the Complainant.  It transpired that this had not been placed in Caselines intentionally by the prosecution and the Commissioner agreed that he would simply instruct the Jurats to ignore it.

(ii)       In the view of Advocate Steenson, the summary of facts for sentencing did not adequately convey to the Jurats the true nature of the evidence given at trial.  The Jurats would not understand that a fair and reasonable interpretation of the evidence given by the Complainant is that much of it was untrue or exaggerated and was clearly rejected by the jury.  This was important, because it was an integral part of the defence mitigation that he had been truthful about the allegations made against him throughout, and as contended for on his behalf at trial, the Complainant's allegations were presented as those of a woman scorned.  Apart from a particular matter to which we will refer below, there were no particular parts of this summary to which objection was taken and the submission appeared to require a re-writing and re-balancing by the prosecution of that summary. 

(iii)      The summary for sentencing referred to a recording (a transcript of which was included within Caselines) made of what the Defendant had said to the Complainant on an occasion some four weeks before 4^th August 2021.  The recording, the accuracy of which was accepted by the Defendant, was admitted into the trial as important background evidence to the relationship between him and the complainant, and it raised a concern as to the Defendant's attitude towards women.  Advocate Steenson said it was an extraordinary proposition that a misogynistic incident of which the Defendant was never charged should form a determinative factor in his sentencing.  Furthermore, this would be read out in Court and would be the public face of the matter.

(iv)      The Pre-Sentence Report made reference to previous relationship problems of the Defendant contained within the probation records.  Support had been given by the Youth Service to five other partners of the Defendant who had made allegations of assault, harassment and controlling and coercive behaviour.  Advocate Steenson submitted that the Defendant had no knowledge of these unproven allegations, which he said should not have been mentioned in the Pre-Sentencing Report.

4.        Having heard the response from Crown Advocate Thomas, who had very short notice of these submissions, the Commissioner ruled that the sentencing hearing should continue in the presence of the Jurats without any change in the documentation before them, save in relation to point (i) above.  It is convenient to give the Commissioner's fuller reasons in this sentencing judgment, which are as follows:

(i)        The prosecution case summary for sentencing, whilst referring to the Defendant's acquittal of the four counts of grave and criminal assault, had quite properly put forward before the sentencing court the Defendant's account of the common assault, of which he had been convicted and for which he was to be sentenced.  The summary did not put forward, rightly, in the Commissioner's view, the Complainant's account of the four assaults of which he was acquitted, although that could be read from the prosecution case summary for trial, to which the defence had taken objection for inclusion in Caselines.  In the view of the Commissioner, the prosecution case summary for sentencing was fair and balanced but in any event it was entirely open to the defence to make submissions to the sentencing court, as indeed Advocate Steenson subsequently did, in order to address any perceived imbalance it was felt the summary gave rise to.  There could conceivably be circumstances in which the Court might regard a prosecution case summary for sentencing so unbalanced as to require re-writing, but that would be a very unusual step, and certainly not justified on this occasion.

(ii)       As to the recording, the prosecution stressed that the Defendant was not being sentenced for anything said in that recording.  The recording itself was undisputed, and the prosecution had been careful to say nothing about what was going on between the Defendant and the Complainant when that recording was made, and which was in dispute.  It had been admitted as important background evidence in the trial, and it provided important background evidence of the offence for which the Defendant was convicted.  It is difficult for an incident of domestic violence to be considered either by the jury or by a sentencing court in isolation.  Furthermore, the Defendant had told the Pre-Sentence Report writer that there had been no issues in his relationship with the Complainant prior to the 4^th August incident, which is inconsistent with what he admitted at trial in respect of what was said in the recording.  At the trial he sought to explain his comments in this recording as stupid and ill judged, but as Crown Advocate Thomas said, the fact that he had expressed himself in an aggressive way and made misogynistic comments could not be ignored as part of the context in which the offence for which he was convicted occurred.

(iii)      Crown Advocate Thomas referred the Commissioner to Khan v R [2009] EWCA Crim 389, which having emphasised the general proposition that no one should be sentenced for criminal conduct in respect of which he has neither accepted it nor been convicted, held that there could be no objection to the sentencing court taking into account conduct which might tend to aggravate the offence, which was either accepted or not disputed by the offender.

(iv)      In this case, what the Defendant said to the Complainant in the recording could not have been the subject of a specific charge as it took place out of the jurisdiction, but it had been deployed before the jury and the Defendant was in a position to challenge and answer it.  He did not challenge it but did give an explanation.

(v)       Advocate Steenson submitted that what the Defendant said in the recording did not aggravate his conduct on 4^th August 2021, which was entirely separate, or inform his decision making in any way, or inform what he did. There was, he said, no finding of misogyny or bullying implicit in the jury's verdict.  In the Commissioner's view, it was not open to Advocate Steenson to draw such inferences from the jury's verdict, and it was entirely open to the sentencing court to consider what the Defendant said as indeed informing his conduct a matter of weeks later.

(vi)      As to the Pre-Sentence Report, this provides valuable information to the sentencing court drawn from a wide variety of sources and the Probation Department is not and should not be constrained by rules of admissibility.  In relation to the information contained within the probation records as to problems in previous relationships of the Defendant, its inclusion had been given careful thought and it informed the risk assessment conducted by the probation officer, and the conclusion, at paragraph 28 that the Defendant was assessed as presenting a medium risk of domestic violence to a future partner.  According to the report there appeared to be a pattern emerging of problems in relationships, victim blaming and lack of insight into his own behaviours, and what areas he needs to address in order to sustain healthier future relationships.  That risk assessment leads into the sentence to be imposed, the purpose of sentencing being the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.  In this case, for example, the Probation Officer had been unable to recommend probation, because the Defendant did not recognise that he had been in abusive relationships, had been victim blaming and showed limited motivation to address issues around the identified areas of concern, which could be addressed through completion of the Jersey Domestic Abuse Program.

5.        Turning now to the sentence imposed in this case, the victim of the common assault was engaged to the Defendant, and they had travelled to Jersey to meet the Defendant's family.  It is fair to say that they were both very insecure in their relationship and arguments had arisen in the afternoon of 4^th August 2021 over ex-boy and girlfriends.  The arguments intensified to a point when the Defendant was sitting on a chair and the victim was standing and shouting in his face.  He put his hand around her throat and pushed her away by the neck, causing her to fall and twist her ankle.  After a short while, she left the Defendant's flat for a local hotel and was seen to be visibly upset by the incident.

6.        The Defendant has no previous convictions apart from minor motoring infractions and was assessed at a low risk of re-offending but, as mentioned above, at a medium risk of domestic violence to a future partner.  The prosecution moved for a sentence of 150 hours of community service, which is the equivalent of nine months' imprisonment.

7.        In terms of mitigation, it was of concern to the Court that nearly all the emphasis in the plea put forward by Advocate Steenson had been on blaming the victim, and what she had forced the Defendant to go through.  There was no letter from the Defendant or expression of remorse on his part, or any kind of acceptance by the Defendant of any concerns about his relationships with women.  Indeed, Advocate Steenson went so far as to say that it was the victim who should have been charged, and that the Defendant could have been advised to raise the defence of self-defence.

8.        However, the fact is that the Defendant had been found guilty of a common assault upon the victim, and the Court takes seriously any conviction for domestic violence - see, for example, the Court of Appeal decision of Coelho v AG [2020] (2) JLR 367 at paragraphs 19 - 21, and in particular, the reference to a general abhorrence of domestic violence and the need to deter offenders and others from similar offending.  This had led to penalties for domestic violence increasing.

9.        In the Court's view, this offence did warrant a sentence of imprisonment, but lower than that moved for by the prosecution, taking into account the very considerable mitigation available to the Defendant in terms of his good character, impressive references and the support of his family, who were in Court.  The Court therefore imposed a sentence of 100 hours community service which is the equivalent of four months' imprisonment.

10.      The prosecution also sought a restraining order under the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008, prohibiting the Defendant from contacting the victim directly or indirectly until further order, indirect communication to include contact on social media and/or other online platform.  Under that Law, the Court can impose a restraining order if it is satisfied it is appropriate to do so for the purpose of protecting the victim from conduct which if carried out, would amount to harassment, or be likely to cause the victim to be in fear of violence against her.

11.      The victim lives in England and, as far as the Court knew, had no connection with the Island which would involve her coming into this jurisdiction on a regular basis.  The Defendant lives in this jurisdiction and is in a new relationship.  He has expressed himself as being relieved that the relationship with the victim is over and says he has no desire to contact her again.  There is no evidence of any contact at all between the Defendant and the victim since the relationship ended on 13^th August 2021.  The Court was not satisfied that it was appropriate to impose a restraining order.

Authorities

Criminal Procedure (Jersey) Law 2018. 

Khan v R [2009] EWCA Crim 389. 

Coelho v AG [2020] (2) JLR 367. 

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