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You are here: BAILII >> Databases >> Crown Court for Northern Ireland Decisions >> Vance & Ors, R. v [2007] NICC 24 (05 July 2007)
URL: http://www.bailii.org/nie/cases/NICC/2007/24.html
Cite as: [2007] NICC 24
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Ref: COGF5891
SENTENCE
COGHLIN J
[1] Aaron Vance, Ryan Robinson and Robin McCullough you have pleaded guilty to maliciously causing grievous bodily harm to Grant Duggan with intent to do him grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861. Aaron Vance and Robin McCullough you have also pleaded guilty to assaulting William McAllister contrary to Section 47 of the Offences Against the Person Act 1861 while you, Christopher Reid, have pleaded guilty to failing to give information to police contrary to Section 5(1) of the Criminal Law Act (Northern Ireland) 1967. [2] At about 10.00 pm on the 23 December 2005 the injured parties, Grant Duggan and William McAllister, two young men who had been close friends since primary school and were home from university for the holiday period, went into Newtownards for a drink at about 10.00 pm. After visiting a couple of public houses the two friends purchased some take away food at about 1.30 am which they took to the fire escape platform at the Townhall in Conway Square. While they were eating their meal at this location, some 15-20 feet above street level, their attention was drawn to a group of young men, of which you four were members, standing on the opposite side of the road near the post office who were shouting and swearing and pointing towards their position. The two young men ran down the steps of the fire escape across Conway Square and turned left into High Street. They were unsure as to whether they were being pursued by any members of that group. The two friends went into Meeting House Lane and waited to see if they were being followed. [3] You, Vance, McCullough and Robinson then entered Meeting House Lane and when you encountered William McAllister you, Vance, punched him on the right side of his face. All three of you then took part in a sustained, brutal and vicious attack upon Grant Duggan punching, pulling him to the ground and as he lay on the ground subjecting him to a series of kicks and blows about the body and head. As he lay defenceless and injured on the ground you Vance broke a bottle and used it to stab him some seven times. He was stabbed with the jagged bottle a number of times on the back because he was lying face down in the foetal position in a desperate attempt to protect himself at the time. He may well have been unconscious by that stage. The only provocation alleged to have been offered by these two young men was that they may have thrown one or two coins towards the position in which you and your friends were originally standing. Apart from that, to use your own words, Vance, "we were all drunk and when you get drink in you you do have a bit of anger and we went down there and did what we did". When asked why you had stabbed Mr Duggan seven times you told the police that you thought you had only stabbed him three times but "the adrenalin must have got hold of me". [4] Ryan Robinson you also took part in this attack and you admitted to the police that you hit Grant Duggan three or four times in the face after which he either fell or was pulled to the ground and you then set about kicking him. You had spent the evening with Vance drinking vodka and coke and vodka and Red Bull until the public house closed. In company with Robin McCullough and Christopher Reid you have denied that you were aware of Vance possessing or using the broken bottle at any time and you told the police that you thought that Grant Duggan would only have sustained a black eye and a bloody nose. However, even if I accept your assertion of lack of knowledge about the bottle, it is clear that you have pleaded guilty to causing grievous bodily harm with intent. [5] Robin McCullough you were the third party directly involved in the assault upon Grant Duggan. You had spent the evening drinking with Christopher Reid in Belfast before joining Vance and McCullough in Newtownards. You had been drinking pints of cider. After entering Meeting House Lane you struck William McAllister a blow in the kidneys as he ran past you in his attempt to get help for his friend. You then went to join your friends who, by this time, had pulled Grant Duggan to the ground and were engaged in kicking him. You told the police that you punched him in the face while he was being held by one of the other two and kicked him in the stomach when he was on the ground. The reason that you gave to the police for getting involved in this brutal attack was that you were in the "wrong place at the wrong time". At the conclusion of the assault you do appear to have entertained some concern for the condition of Grant Duggan who, according to your account, was gurgling and unable to breathe properly. You then placed him over some railings. [6] You, Christopher Reid, played a less serious role in this despicable affair. While you had been drinking with McCullough in Belfast and were present with your co-accused close to Conway Square, you remained at an ATM and took no direct part in the attack upon Grant Duggan nor are you charged with participation therein. However, I have no doubt that, as a result of conversation when you rejoined your friends you very soon became aware that they had assaulted someone. Within about ten minutes or so you learned that your co-accused, Aaron Vance, had used a broken bottle in the course of carrying out that attack. You told the police that you thought Mr Duggan had been hit "a couple of times" and that he would "get up and just go on". That is a statement that I find difficult to accept once you had learned that a broken bottle had been used. Whatever may have been your state of mind early that morning I am satisfied that, as a consequence of the press and other media announcements and appeals, by the following day you knew that Grant Duggan was very seriously ill. When asked why you did not go to the police even at that stage you said:"I don't know I didn't think about anything just at the end of the day I didn't touch the guy I didn't do anything I didn't see it you know. All I know is from what people have told me but that's you know what I mean."
The only excuse that you put forward during police interviews for your failure to give information about this dreadful event was that you did not actually see anything and that these were your friends. Quite apart from constituting a criminal offence, your conduct amounted to a piece of abject cowardice of which you ought to be thoroughly ashamed.
[7] As a result of this attack Grant Duggan sustained serious injuries including five circular wounds on his back caused by stabbing with a broken bottle, lacerations caused by a slashing movement of a broken bottle including a collapsed lung and a right sided sub-dural haematoma or a collection of blood over the surface of his brain. These injuries were undoubtedly life threatening and his survival was ensured only by the expert surgical intervention that he received at the Royal Victoria Hospital. Part of the cause for the bleeding over the brain may well have been a congenital abnormality and it does not appear that he sustained any skull or facial fractures. Nevertheless, there can be no doubt that he was subject to both kicks and punches to the head. He also sustained significant, extensive scarring and Dr Loughry, consultant psychiatrist, has confirmed the existence of an adjustment disorder which is settling slowly over time. At the time of his assault Grant Duggan was attending Queen's University and participated in several sporting activities to an impressive level. Despite having made a good physical recovery, the impact upon his life was substantial although he has successfully returned to his university studies and has represented in Northern Ireland at 10-Pin Bowling. The impact upon his family has been poignantly described in the letter from his mother that has been furnished to the court and to the accused. That is a document that should haunt each of you for many years to come. [8] As far as Vance, McCullough and Robinson are concerned I propose to treat this attack as a joint venture save that, in accordance with the Crown's concession, I propose to sentence on the basis that neither Robinson nor McCullough was aware of the use of the broken bottle by Vance until some time after the assault had taken place. Aaron Vance is the only one of the accused who has any criminal record and that is limited to a single conviction for common assault in 2004 in respect of which he was fined. Vance pleaded guilty to Count 2 on arraignment and Robinson and McCullough did so upon rearraignment on 29 May 2007 after the Crown offered no evidence upon Count 1. Upon the same date Reid asked to be rearraigned and pleaded guilty to the sole charge against him on the indictment. I propose to give credit to each of the accused for so doing. [9] Pre-sentence reports have been furnished by the Probation Board for Northern Ireland in respect of each of the accused. Without going into unnecessary detail, each of the accused has had the benefit of a good education, a positive and supportive family background and upbringing and each has a good history of employment despite having left school at sixteen. Three of them are well on their way to successfully completing apprenticeships which will permit them to take up trades within the construction industry and the fourth had just commenced employment in that industry with a good previous history of employment. In some respects this positive background makes my task harder since none of the accused directly involved in this vicious assault is able to offer a broken family, deprived childhood, criminal associates or any other of the factors so depressingly often encountered in these courts by way of explanation for their behaviour that night. Without exception, each of them should have emphatically known better and none of them has any explanation to put forward other than aggression fuelled by excessive alcohol consumption. I note that each of them began drinking alcohol, primarily at weekends, approximately at aged 16. [10] There is no doubt that drink fuelled physical violence, often random in nature, appears to have become a regular phenomenon in many of the town centres in Northern Ireland, especially at weekends. The report prepared for the court with the assistance of the Crime Statistics Unit of the Police Service for Northern Ireland established that during the period between 1 December 2005 and 31 March 2007 there were two attempted murders, fifteen woundings with intent, 195 assaults occasioning actual bodily harm, and 44 common assaults within the town centre of Newtownards. The injuries inflicted included multiple fractures, lacerations, broken jaws/cheekbones, broken teeth and facial injuries together with general injuries ranging over serious bruising and minor cuts. Some 65 police officers have been assaulted attending disturbances/assaults during the same period. This is quite simply a disgraceful record for the centre of one of the major towns in this province and one which ordinary citizens should not be required to tolerate. I note that from September 2007 the Borough Council in partnership with the PSNI and Ards Community Safety Partnership will have six close circuit television cameras located at strategic points throughout the town centre. A number of aims are claimed for this system including the prevention and detection of crime, the maintenance of public order, the prevention of anti-social behaviour and nuisance and the provision of reassurance. For the sake of the citizens of Newtownards it is to be hoped that the provision of this technology will improve the situation. If not, for myself, I remain to be persuaded that most citizens would not feel that these aims would be more likely to be achieved by a regular and clearly visible police presence. Resources are always an issue but I think that such a tactic would probably have the desired effect within a relatively short time. Ultimately, it seems to me that security is the prime concern of the State and I should have thought that the confidence of citizens to use their own town centre at weekends and the peace of mind of mothers such as Mrs Duggan to know that their children are safe from random violence should be fairly high up the list of priorities. [11] Counsel have helpfully furnished me with a number of relevant decisions from the courts in England and Wales together with the most up-to-date sentencing guidelines from the Sentencing Advisory Council. I have also consulted the useful guidelines provided by the Northern Ireland Judicial Studies Board which relate to sentencing in this separate jurisdiction. Reference to other cases and to guidelines is encouraged to promote consistency in sentencing but guidelines are guidelines and consistency is only one component of the overall task of the court which is to do justice in all the circumstances of the individual case taking account of the various interests involved including the accused, the victims and the public. In doing so I remind myself of the words of Kerr J, as he then was, in R v Kernaghan [2003] NICA 52 at paragraph [15] when he said:"Comparisons of sentences in other cases must be carefully undertaken especially where offences of violence are involved since these are usually highly fact specific and cannot therefore provide an infallible guide to appropriate sentence even where the circumstances appear similar."
The Court of Appeal in Northern Ireland has frequently observed that attempting to fix a sentence by reference to previous cases as if using a logarithmetic table is not a fruitful approach.
[12] However, there can be no doubt that the courts in this jurisdiction take this type of case seriously and have emphasised their determination to impose custodial sentences. In R v Coyle [NICA 11/06/97] MacDermott LJ observed that:"In recent years the courts have had cause to note that gratuitous violence is on the increase. In this court we have sought to make it clear that those who injure others by 'glassing', 'kicking' or other forms of vicious violence will suffer condign punishment. The only way that society can show that it will not tolerate this kind of conduct is by the court passing severe sentences. The fact that offenders are young is not a reason why they should not be punished severely when they behave in this vicious manner."
More recently in R v Stephen Magee [NICA 15/06/07] Kerr LCJ made the following observations at paragraph [23]:
"It is the experience of this court that offences of wanton violence among young males (while by no means a new problem in our society) are becoming even more prevalent in recent years. Unfortunately, the use of a weapon often a knife, sometimes a bottle or a baseball bat is all too frequently a feature of these cases. Shocking instances of gratuitous violence by kicking defenceless victims while they are on the ground are also common in the criminal courts. These offences are typically committed when the perpetrator is under the influence of drink or drugs or both. The level of violence meted out goes well beyond that which might have been prompted by the initial dispute."
That was a manslaughter case but I respectfully consider that such remarks are of general application.
[13] Having read the relevant pre-sentence reports I am satisfied that, taking account of their records and the degree of family support that each enjoys, it is unlikely that any of the accused will offend further, provided that a more responsible attitude is adopted towards the consumption of alcohol. In such circumstances, especially in the absence of criminal records, careful consideration is required before imposing custodial sentences. However, in the circumstances of this case my view is that those factors must take second place to the need for retribution, to express the abhorrence of society and to deter others from similar conduct. I am quite satisfied that this was an offence to which Article 19(2) (a) of the Criminal Justice (NI) Order 1996 ("the 1996 Order") applied. All three of you are young men, with good backgrounds who have never been in prison before. You, Vance have remained in custody since the date of the offence and have shown a clear willingness and ability to respond to the regime in the Young Offenders' Centre. I have carefully read the reports from Dr Davies and Dr Harbinson and I understand that you have had to cope with a number of difficulties. However your use of the broken bottle on this occasion cannot be overlooked and, after taking your plea of guilty into consideration I think the appropriate sentence is one of six years imprisonment. Having regard to your age and the way that you have responded within the Young Offenders' Centre, together with the recommendation of the Probation Service, I am prepared to make a custody probation order in accordance with Article 24 of the 1996 Order and if you so consent I propose to make such an order with a custody element of five and a half years followed by twelve months probation in respect of Count 1. On Count 2 I sentence you to 18 months imprisonment to run concurrently with the sentence on Count 1. [14] I turn now to deal with Robin McCullough and Ryan Robinson. While I have accepted that you were not aware that Vance either intended to use or did use the broken bottle neither of you should be under any illusion that a concerted attack by three people on one individual involving the use of fists and feet is in any way significantly less serious. To be consistent with the sentence that I have passed on Vance both of you should go to prison for five years. However, taking into account your youth, the fact that you have not been in prison before and the contents of the pre-sentence reports I propose, in your cases, to apply the principles approved by the Court of Appeal in R v John Joseph Carlin [NICA 11/07/97] and sentence each of you to three years and nine months detention in the Young Offenders' Centre. Again, taking into account the remarks contained in the pre-sentence reports I am prepared to make a custody probation order in each of your cases in which the custody element should be followed by 12 months probation on Count 2. On Count 4 I sentence you Robin McCullough to 18 months detention to run concurrently with the sentence imposed on Count 2. I consider that it is appropriate to allow only a deduction of three months in your cases because of the view that I have taken as to the term of imprisonment that would otherwise be warranted. [15] Each of the Orders will contain a requirement to attend an Alcohol Management Programme as recommended in the pre-sentence reports.[16] Christopher Reid in the course of your pre-sentence probation interview you said that you did not realise that not telling the police what you knew was a serious crime and that your reaction to these events was an indication of immaturity. Whatever may have been your knowledge of the law at the material time, you were 17 years old and significantly less drunk than the other three and, in such circumstances, given your family background I have no doubt that you were under a clear moral obligation to provide whatever information you had to assist Mr Duggan and his devastated family. You should be utterly and thoroughly ashamed of yourself and I believe that the only way in which the seriousness of your failure can be brought home to you is by a custodial sentence of 12 months detention in the Young Offenders' Centre. However, I am prepared to suspend that sentence for a period of 12 months and should you commit no further offences during the period of suspension that should bring the matter to a close.