Jersey Unreported Judgments

 [2003]JRC161

ROYAL COURT

(Samedi Division)

 

15^th September 2003

 

 

The Attorney General

-v-

Richard Lawson Harrison 

 

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded on 9^th July, 2003, following conviction at a criminal assize on a not guilty plea to:

 

1 count of:

Grave and Criminal Assault;

 

Following a guilty plea entered on 17^th March, 2003 to:

 

1 count of:

Urinating in a public place

 

And following an admitted contempt of Court for breaching bail conditions set on 16^th June, 2003.

 

Age:     32

 

 

Details of Offence:

Counts 1 & 2 - On 4^th April 1999 the victim and his girlfriend were walking in St Aubin near the Tenby Bars.  The defendant was with friends in the area behaving aggressively.  He urinated in the street near a parked car.  He swore at a passer-by.  Devenney and his girlfriend came across the defendant and his friends.  The two groups met near the junction beside National Westminster Bank.  There was a confrontation.  There was a dispute as to who started the ensuing scuffle, when blows were thrown.  It was not clear whether the victim threw the first punch but for the purpose of sentencing, the prosecution was content for the Court to assume that there may have been some provocation.  Indisputably the victim ended up on the floor.  He was punched and kicked.  Independent witnesses, including the defendant's friends, said that it was the defendant alone who kicked the victim.  There was a discrepancy as to how many times the victim was punched and kicked.  One witness described a vicious assault.  The victim was permanently blinded in his right eye, suffered a fracture of the inferior wall of the right orbit, the medial wall of the orbit and possibly the right zygoma.  He suffered bruising and swelling around his eyes.  The defendant was later arrested.  He told lies and gave a false alibi.  When interviewed again he made some admissions but said that he was defending himself, which the jury rejected.

Contempt of Court - the defendant was charged in June 1999.  He was granted bail but absconded in September 2000 prior to his trial in October 2000.  It was not until 9th April 2002 the defendant was arrested in Spain and eventually extradited, returning to Jersey in February 2003.  He had spent approximately 10 months in a Spanish prison, awaiting extradition.

 

 

Details of Mitigation:

No issue with the facts; provocation; over-reaction by defendant; delay between charge and trial date leading to stress; defendant's friends changed their statements and became prosecution witnesses, following which defendant decided to abscond to Spain.  10 months in a maximum security jail in Madrid, alongside rapists, murderers, ETA terrorists and victims of AIDS, in appalling conditions.  Good education, had good business - car dealer by trade, detailed Social Enquiry Report referred to unstable childhood; father drank to excess and was violent towards mother.  Defendant effectively fended for himself from about 16 years of age.

 

 

Previous Convictions:

Relatively minor public order; one week before his attack on Devenney, convicted of being disorderly on licensed premises, and before absconding to Spain, convicted of breach of the peace.

 

 

Conclusions:

 

Count 1:	4 years' imprisonment
Count 2:	1 week's imprisonment, concurrent
Contempt	12 months' imprisonment, consecutive: from which point Court had two options - (i)  exercise discretion and allow discount for time spent in Spanish prison, namely 10 months' which would lead to additional 2 months' imprisonment; or (ii)  find that the Criminal Proceedings (Computation of Sentences) (Jersey) Rules 1968 apply; if so, 10 months' custody in Spain would have been equivalent to a 15 month served sentence in Jersey.  Therefore to allow for the Spanish custody, a sentence of 17 months' consecutive would result in two months' actual custody.
Total	4 years', 2 months' imprisonment

 

 

Sentence and Observations of Court:

These are the general sentences and observations.

 

Count 1:	3 ½ years' imprisonment
Count 2:	1 week's imprisonment concurrent
Contempt:	12 months' imprisonment concurrent.  Court found 1968 Rules did not apply and exercised its discretion, imposing a sentence of 12 months' imprisonment, concurrent with counts 1 & 2.
Total:	3 ½ years' imprisonment

 

 

Mrs S. Sharpe, Crown Advocate

Advocate N.M. Santos Costa for the defendant.

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        The defendant was convicted by a Jury of committing a grave and criminal assault by taking part in an attack, when kicks and punches were delivered to the 42 year old victim whilst he was defenceless on the ground. 

2.        The Crown Advocate has felt bound by the decision of the Court of Appeal in Mallet-v-A.G [2002]JLR256 to suggest a starting point from which the conclusions can be calculated.  We think that this is a misreading of the decision in Mallet and that what the Court of Appeal intended to say was that it was always a useful exercise to identify the sentence that might have been imposed, absent a guilt plea and any mitigating circumstances.

3.        At first instance, Birt, Deputy Bailiff had expressed it less emphatically in stating "it will sometimes be useful on a guilty plea for the Court to ask itself what it would have given after a contested trial in order to ensure that sufficient credit has been given for a guilty plea.  And we have noted that in some, albeit a few, cases in England this comparative figure is referred to in the judgment."

4.        To conclude that the Court of Appeal in Mallet intended to adopt, for cases of grave and criminal assault, the approach followed for sentencing for drug trafficking offences seems to us inconsistent with what the Court stated in relation to the assistance to be drawn from English sentencing practice.

5.        The Court of Appeal referred to Blackstone's Criminal Practice (10^th Edition): paragraph B.2.33 at 162; paragraph B.2.39 at 166 and to the three sentencing bands in England applicable to analogous offences against the person.  The sentences in all those bands represent the sentence imposed having taken account of aggravating and mitigating circumstances.

6.        The Court of Appeal cannot have intended, despite some passages that might give that impression, that the Royal Court should always establish a starting point and subsequently work down to take account of the mitigating factors, if the sentencing Court is also to have regard to the sentences imposed in England, where that approach is not adopted.  To follow that course would involve establishing the appropriate sentence by taking account of aggravating and mitigating circumstances, the relevant sentencing law in England, and subsequently working upwards to find an appropriate starting point.  While that might be a useful mental exercise in order to ensure that the mitigating circumstances had been given the appropriate weight, we do not think that any useful purpose is served by announcing publicly what the notional starting point might be.

7.        Sentencing is an art and not a science.  We agree with the submissions of the Crown Advocate in relation to the possible confusion that would result from adopting starting points in cases of grave and criminal assault where the wide range of different circumstances which do not admit of the more formulaic approach that is possible in drug trafficking cases.  In our judgement the correct approach in cases of grave and criminal assault is to identify and balance all the relevant aggravating and mitigating circumstances and to arrive at a sentence which is considered to represent that balance in relation to the facts of the offence and the particulars of the offender.

8.        As recommended by the Court of Appeal in Mallet, the sentencing Court should then ask itself what it would have imposed, absent of guilty plea and any mitigating circumstances, so as to ensure that sufficient credit has been given for the mitigation.

9.        The gravamen of the offence should be assessed in the context of the nature of the assault, the intention of the defendant, and the injury or potential injury inflicted upon the victim.  Against that assessment should be balanced the mitigating factors.  There is, in this jurisdiction, only one offence, namely grave and criminal assault compared with a number of different statutory offences in England, and we do not think it is helpful or indeed appropriate to try to identify the precise offence which might have been committed by the defendant in another jurisdiction.

10.      Nonetheless, and again following the guidance offered by the Court of Appeal in Mallet, we agree that it is helpful to use the English sentencing bands as a form of check list to ensure consistency.  The Crown Advocate has done that in this case.

11.      Applying this approach to the facts of this case, Harrison is to be sentenced for participating in a vicious attack by kicks and punches upon a man lying defenceless on the ground.  The victim has been permanently blinded in one eye.  He believes that he has been left with an impairment of his senses of taste and smell.  He feels embarrassment in social situations as a result of his injured eye.

12.      None of this was intended by the defendant, but he was reckless or indifferent to the possibility that this kind of serious injury might have resulted from his actions.  We sentence on the basis that there was a measure of provocation in that the victim may have thrown the first blow and on the submission of defence counsel that the accused was twice hit by the victim which led to this over-reaction by Harrison and others.

13.      The defendant has denied the offence and no mitigation is therefore available to him for a guilty plea.  He has expressed no remorse for his actions because, of course, he has denied committing the offence but he has, through his counsel, expressed sympathy for the terrible injury suffered by the victim.

14.      Two questions have arisen in relation to the 10 months spent in custody in a Spanish prison awaiting extradition, which the accused was resisting.  The first is that the conditions were, on the submission of defence counsel, appalling and it is suggested that this should be taken into account in mitigation.  We disagree.  The time spent in the Spanish prison was an almost entirely self-inflicted misery which Harrison could have brought to an end had he not contested the extradition proceedings in the hope presumably of gaining his freedom.  The second question which has arisen is whether the period spent in custody in Spain should be taken into consideration in computing the sentence pursuant to Rule 11 of the Criminal Proceedings (Computation of Sentences) (Jersey Rules), 1968.  Defence counsel has argued that it should be taken into account and that all the periods spent in custody in Spain should be deducted from the sentence imposed.  Again we disagree.  In our judgment, as a matter of statutory construction, Rule 11 does not apply to time served in a prison outside this jurisdiction.  We do however have a discretion to take that period of incarceration into consideration both in relation to the appropriate punishment for the contempt of Court which the defendant has admitted and in relation to the totality of the sentence to be imposed.

15.      Harrison, will you stand up please.  We turn now to the proper sentence for the grave and criminal assault.  Balancing as best we can, all the aggravating and mitigating circumstances and taking account of the feeling of grievance suffered by you in that others may have avoided retribution for their part in this offence and taking account of the time spent in custody in Spain, we sentence you to three and half years imprisonment.

16.      So far as the contempt of Court is concerned we agree with the Crown Advocate that ordinarily a consecutive sentence should be imposed.   Bearing in mind however again the time spent in custody in Spain - and we accept the submissions of defence counsel in this respect - we think that the justice in this case will be met by the imposition of a concurrent sentence 12 months' imprisonment.

17.      The result is, Harrison, that you are sentenced on the grave and criminal assault to 3 ½ years imprisonment.  On the urinating charge to 1 week's imprisonment concurrent and on the contempt of court, to 12 months imprisonment concurrent, making a total of 3 ½ years imprisonment.

Authorities

A.G.-v-Mallet (2000)JLR155

Mallet-v-A.G. (2000)JLR256

Le Monnier-v-A.G.(2000)JLR399

Attorney General's Reference No.43 of 2002 (Pacholok)(2001) I Cr. App.R. (S)110.

Blackstone's Criminal Practice (10^th Edition): paragraph B.2.33 at 162; paragraph b.2.39 at 166 (2000)

Criminal Proceedings (Computation of Sentences) (Jersey) Rules, 1968: Rule 11.