Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault

[2024]JRC075

Royal Court

(Samedi)

3 April 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen MBE and Opfermann

The Attorney General

-v-

Kai Fairbrace

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

1 count of:

Grave and criminal assault (Count 1).

Age:  21 (20 at the time of the offence)

Plea: Guilty. 

Details of Offence:

Shortly before midnight on 18 August 2023, the Defendant was on the dancefloor at the Watersplash.  A friend of the Victim's put an ice cube on the Defendant's back as part of a game she was playing with friends.  The Defendant turned and immediately punched the Victim, knocking him to the floor.  The Victim was rendered unconscious.  He recalled being woken up on the dancefloor by a friend.

 

As he was escorted out by a bouncer, the Defendant was "grinning" and "clearly looked proud of himself."  The Defendant, who was laughing, shouted towards a friend of the Victim, "I knocked your mate out sparko" and stuck his tongue out at him.  Only minutes later, he sent abusive and threatening messages to another friend of the Victim's, including: "your mate got sparked for a reason anytbing comes back to me for this I'm gonna rip ur head off ur shoulders u fucking faggot" [sic]

 

The Defendant was arrested at the Watersplash.  He was argumentative with police officers and was noted to be intoxicated.  He made no comment in interview.

 

The Victim had a fractured upper left central incisor and lower right central incisor.  His lower right first molar was vertically fractured through the tooth, nerve and root and required extraction.  He had bruising around his right eye and a wound to his right upper eye lid.  He also had a semi-circular wound to the right side of his nose.  He required extensive dental work and the nose injury left scarring.

Details of Mitigation:

Crown: Guilty plea.  Youth, though must be viewed in light of extensive criminal record.  Difficult background.

 

Defence: References and letter of remorse. Attitude towards non-custodial sentences had changed.  Defence counsel submitted compensation should be in a lesser sum.

Previous Convictions:

None. 

Conclusions:

Count 1:

15 months' imprisonment.

Compensation order sought in the sum of £5,735.

Exclusion order sought from 1^st, 2^nd, 4^th, 5^th, and 7^th category licensed premises for 12 months from release.

Sentence and Observations of Court:

Count 1:

180 hours' Community Service Order, equivalent to 12 months' imprisonment and a 12 month Probation Order.

Compensation order made in the sum of £5,735 to be paid in monthly instalments of £200, the first instalment to be paid by 4pm on 1 May 2024, with 6 months' imprisonment in default.

Exclusion order made from 1^st, 2^nd, 4^th, 5^th, and 7^th category licensed premises for 18 months from today. 

Any breaches of the order reserved to the Royal Court.

Ms L. B. Hallam, Crown Advocate.

Advocate J-A. Dix for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Kai Fairbrace, you are 21 years old and fall to be sentenced for an offence of grave and criminal assault.

2.        On 18 August 2023 whilst in a nightclub you made an unprovoked attack on a member of the public who was just out enjoying himself and was unknown to you.  You punched him to the face, knocking him to the floor where he lay unconscious until woken by a friend.  As you were thrown out of the nightclub, you were noted as laughing and you shouted to a friend of the man you had assaulted, "I knocked your mate out sparko" and stuck your tongue out at him.

3.        You then sent a number of threatening messages by telephone to a friend of your Victim and you said, amongst other things, that if anything else came back to you in relation to the incident you would rip his head off his shoulders.

4.        When you were arrested by the police that night they noted you were drunk.  Apparently you had drunk two bottles of wine.  You gave no assistance to the police in interview and you refused to take part in an identification process.  However, you pleaded guilty at the first opportunity and will receive full credit for your plea.

5.        Your Victim was left with dental injuries, including a fracture to three teeth leading to extraction of one of those teeth and need for further dental surgery - which will be expensive - including root canal treatment and implants.  He also requires revision surgery to a facial scar as a consequence of the assault and the cost of past and previous dental and scar work will come to in excess of £5,000. 

6.        The Magistrate sent you to this Court because the case was thought to be too serious for that Court.  That Court felt that you should be sent to youth custody for more than a year and certainly when the Jurats read the papers and came into Court this morning they were minded to ensure that you were sent back to youth custody.

7.        You have a very poor record for someone of your age.  Your antecedents were considered by the Royal Court on 11 February 2022 (AG v Fairbrace [2022] JRC 039) when you were sent to youth detention for a period of 18 months.  On that occasion the Court considered what was said by the Probation Service in respect of your poor compliance with orders.  The Probation Officer noted at paragraph 7 of the Court's judgment "You told the author of the report that you cannot be bothered to seek gainful employment and the Probation Service has little confidence that you will complete a Probation Order."  Various sessions were missed and in relation to Community Service the Court accepted the Crown's description of your compliance as:-

"... being littered with "unreasonable behaviour and non-attendance".  Your supervising officer described this as being "a very difficult order, frustrated by endless medical certificates invariably presented outside service standards" with indifferent reports about your behaviour, when out of the sight of your supervising officer, including allegations of attempting to break tools, and you lacking any self-motivation.  The conclusion is that until such time as you are prepared to help yourself the officer said he could not see any intervention making a difference."

And on that occasion the Court said

"10.    We have had regard to the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 2014.  Pursuant to Article 4(2) we are unable to pass a sentence of youth detention unless the court considers that no other method of dealing with you is appropriate because, amongst other things, you have a history of failure to respond to non-custodial penalties and are unable or unwilling to respond to them.  The members of the Court have regretfully, but nonetheless clearly, come to the conclusion that you do have a history of failure to respond non-custodial penalties and you are unwilling to respond to them."

8.        So today, two years later, you are before the Royal Court again and it is accepted on your behalf that you do have a history of failure to respond to non-custodial penalties but the question is are you unwilling objectively to respond to such penalties?  Unfortunately the start of the story is not a positive one - as revealed by the Probation Report.  Because you were lucky enough to be released early from your last period of youth detention, you had a successful conditional early release panel hearing and were released from prison on license on 11 November 2022.  But only 7 days later you were recalled to prison due to allegations that you were sending aggressive and threatening texts to others.  So you were brought back to custody where you spent the next 3 months until you were released on 9 February 2023 on young offenders license which expired on 10 August 2023 and although you attended all your appointments, towards the end you missed several office appointments and eight days after the end of that period you committed this offence. 

9.        You still benefit from the protection of the Criminal Justice (Young Offenders) (Jersey) Law 2014 (the "Young Offenders Law") because you committed this offence when you were 20 and you were convicted when you were 20.  You should understand that now you are 21 you will never be protected by the Young Offenders Law again but you are today, and the policy of the Court is that persons who are protected by the Young Offenders Law should only go to prison or youth custody as a last resort.

10.     We have given a lot of weight to what Grace Littler has said in her letter to the Court.  She works for the care leaving team at Children's Services.  She has supported you and she says that since your release from prison a year ago you have tried to make positive changes in your life, you have moved into your own flat and settled well.  She says there has been no reports of anti-social behaviour.  We note that you are in a relationship with your partner who is here today.  We also read your letter that you have written to the Court.  You say, "I don't want to be in and out of trouble my whole life".  You do understand that is now in your hands - it really is.  You say you want to be able to do nice things - well we all do, but the last thing you want to do is to spend your twenties in and out of La Moye.  You say you have come a long way since your release from prison and we accept your counsel's observations that you now, for the first time, have stable accommodation, are living independently (which you will lose if you go to youth custody), you are in a good relationship, you are sober and you say that you may be about to commence work.  Your respective employer has written to us.

11.     In that context we now have a Probation Report in different terms from the one that the Court had before it two years ago.  Notwithstanding the high risk of reconviction and the fact that this would be a high risk order, the Probation Officer says that she has discussed matters with you and that you are now motivated in her assessment to carry out a Probation and Community Service Order.  The Probation Order would involve a work plan involving alcohol misuse, substance misuse, offence analysis, and give you skills to better cope with emotional and other challengers.  The Community Service Manager says that he had a positive meeting with you and assesses such an order as being appropriate. 

12.     The Court will be taking a risk, but on the evidence before us today we are not satisfied that you are unwilling to carry out a non-custodial order so - as a direct alternative to 12 months' youth detention - we order that you perform 180 hours' Community Service and a Probation Order of 12 months. 

13.     You will be subject to an exclusion order from licensed premises in the terms sought by the Crown for 18 months. 

14.     You will be ordered to pay compensation in the whole amount sum sought by the Crown in the sum of £5,735 at £200 a month - the first payment is due by 4pm on 1 May.  The period in default of payment (and that includes any payment as a default in one payment means the whole sum is due) is 6 months' custody.  So it is important you make those payments otherwise you will end up at La Moye.  Any breaches are reserved to the Royal Court.

15.     Do you understand that you have been given a chance and the only reason you have had this chance is the support of the people in Court today and the Probation Service?  We do hope that we do not see you again but if we do it will be because you are almost certainly on your way to La Moye.  Do you understand?

Authorities

AG v Fairbrace [2022] JRC 039

Harrison v AG [2004] JLR 111

AG v Cummins [2006] JRC 070

AG v W [2022] JRC 041

Criminal Justice (Compensation Orders) (Jersey) Law 1994

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