Jersey Unreported Judgments

[2008]JRC017

ROYAL COURT

(Samedi Division)

7^th February 2008

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Breton and Newcombe.

The Attorney General

-v-

Brendan James Myles

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

1 count of:

Grave and criminal assault.

Breach of Binding Over Order imposed by the Magistrate's Court in February 2007.

Age:  23.

Plea: Guilty.

Details of Offence:

During the early hours of the 6^th October, 2007, the accused and a number of other people were walking up Seale Street in the direction of the Parade.  They encountered the 27 year old male victim who was walking on the other side of the road in the opposite direction.

The accused took offence at a remark from the man.  He ran across the road, punched him three times to the face, threw him against a window and then to the floor.  He proceeded to kick the man hard to the face about three times and also kicked him to the body and back.  As the victim attempted to get up the accused ran up to him and kicked him in the chest or face.  He fell to the floor again.  One of the accused's party intervened.  The accused was pushed back a further three or four times but each time kept returning to the victim and kicking him.  At the time of the attack the accused was wearing "business man type shoes, leather shoes".

The accused was told to leave and walked away.  Three of those present assisted the victim to the Accident and Emergency Department.  He was found to have severe facial injuries (including severe bruising to the right eye, a haematoma to his left forehead and lacerations) and abrasions to the front of his left knee.  His wounds were sutured.

Sometime later the accused voluntarily attended Police Headquarters where he was arrested and cautioned.  During interview he admitted drinking heavily on the day of the attack.  On a scale of 1 to 10 he placed himself at about 7.  He admitted becoming involved in a fight.  Initially he admitted probably kicking the man and punching him a couple of times.  Eventually he said he remembered throwing the man to the floor and kicking him to the face and head.  He said he was aware the attack could potentially have killed his victim.  He repeatedly expressed remorse.

Breach offence

One evening the accused became involved in a large fracas at a local town bar during which he lunged aggressively towards a man on an outside decking area.  During interview the accused admitted drinking since 2 pm that afternoon and initially sought to distance himself from the trouble.

Details of Mitigation:

Residual youth.  Guilty plea.  Repeated expressions of remorse.  Difficult upbringing.  Now in a settled relationship with settled employment.  Undertaking voluntary work (Coaching under 14 football team).

Previous Convictions:

Appalling record including convictions before Jersey's Youth Court, Magistrate's Court and Royal Court.  The record principally contained convictions for violence related offences including assaults on police, grave and criminal assaults and kidnapping.

Conclusions:

Count 1:

18 months' imprisonment.

Breach Offence:          1 month's imprisonment, consecutive.

Total:                         19 months' imprisonment.

12 month Exclusion Order from licensed premises (except shops selling food).

Sentence and Observations of Court:

The Court has decided to take a very exceptional course and pass an individualised sentence. 

Count 1:

18 months' Probation Order subject to a 12 month treatment order.

However, the offence was too serious to merit Probation alone.  In addition to this he would be placed on Community Service.

The Court felt the lowest proper sentence for this offence was 2 years' imprisonment.  This was equivalent to 240 hours' Community Service.  The Court was, however, aware the Probation programme to which the accused would be subject was onerous and that he would also be attending the Alcohol and Drug Service.  The Court did not want to set the accused up for a fall.  Accordingly, the Court would impose 240 hours' Community Service (with a 2 year prison sentence in mind).

In addition there would be an order excluding the accused from licensed premises (except shops selling food) for a period of 12 months.  No further sentence would be imposed in relation to the breach of the Binding Over Order.

The accused has been extremely fortunate.  If he breached non-custodial orders by re-offending he would be sent to prison.  The Court commended the efforts of those who had helped the victim.

A. J. Belhomme, Esq., Crown Advocate.

Advocate M. H. Temple for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        When you have been drinking you can not control your temper.  You have a poor record and you have committed a number of previous assaults.  On this occasion you were again drunk.  You took offence at some remark from the victim which no one can now recall and which clearly did not justify what happened.  The victim was simply minding his own business on his way home from a dinner when he had the misfortunate to run into you.

2.        You assaulted him, you punched him to the ground, and you then kicked him more than once in the face.  He suffered a badly bruised right eye as well as other bruising and cuts to his face.  It is very fortunate for you that he did not suffer more serious injuries, and it was indeed no thanks to you that he did not, but he has made a full recovery.

3.        Mr Temple has put forward a strong case in mitigation on your behalf.  He has referred to the fact that you immediately admitted what you had done and pleaded guilty.  You also immediately expressed considerable remorse.  He explained your difficult background and a number of other matters.  These themselves would not have been enough.  Offences of violence of this nature almost invariably require imprisonment. 

4.        However, the Court is faced with a strong recommendation from the Probation Service and from the Alcohol and Drugs Service that a non-custodial sentence would be the best course in this case.  They say that this is a turning point in your life, and they base that on a number of factors.  For the first time you have found regular employment, and the Court is very pleased to hear that.  We have seen good references from your employers.  You have been promoted to a trainee steel erector.  You have been described as being enthusiastic and hard working, and it is also stated that you are well liked by your work mates.

5.        At long last you seem to realise you have a real problem with alcohol.  You have been abstinent from alcohol whilst you have been on bail.  You have not re-offended and you have adhered to bail conditions keeping you out of pubs.  Furthermore, you have attended voluntarily at the Alcohol and Drugs Service and they say in their latest report that they are confident that you will succeed. 

6.        You seem to have developed a stable home life with your girlfriend and importantly it is clear that you are now willing to help others and not think only of yourself.  We noted the reference which shows that you are helping to train under 14 year olds at football in your own time on a Sunday.

7.        As can be seen from the time we have spent considering this matter the Jurats have found it extremely difficult.  On the one hand the Court is determined to punish violence of this nature and to do its best to help in ensuring the safety of ordinary citizens who are going about their business in St Helier.  In this respect we consider that the conclusions of the Crown of a sentence of 18 months are too low for this offence; they do not reflect the serious nature of the assault. 

8.        On the other hand, given your appalling record, the Court also feels that if this is in truth a turning point and if you can succeed as the Probation Department and the Alcohol and Drugs Service believe you can, then that would be in society's best long term interests as well as your own, because it would mean that society would not be troubled by your offending in future.

9.        Not without considerable hesitation the Court has decided in this case to take a very exceptional course.  The Court feels that it can deal with this on an individualised basis and impose a non-custodial sentence. 

10.      On the count of grave and criminal assault you are going to be placed on probation for 18 months.  There is also a condition of a treatment order for 12 months.  That means you have to attend as directed on the Alcohol and Drugs Service and you must comply with their treatment goals and testing as they direct.  However this offence is far too serious to be dealt with by probation alone; you must be punished.  Therefore we are going to impose community service.  We have already said that we consider the proper sentence in this case would have been one of more than 18 months. 

11.      We consider the least sentence which could be said to be a proper sentence is one of 2 years' imprisonment.  The equivalent of that in community service is more than 240 hours and the Court does now have power to impose more than 240 hours.  However, we are aware that the probation programme which is described in the reports is an onerous programme and you will also be attending the Drug and Alcohol Service.  We think that that is sufficient and we do not want, in effect, to possibly set you up to fail by imposing too much community service.  We are going to confine the order to one of 240 hours' community service but we repeat that the alternative sentence we had in mind is one of 2 years. 

12.      We are also going to make an exclusion order, as moved for, of 12 months.  So you must stay out of all licensed premises except shops which sell food.  We make no order on the breach of binding over. 

13.      You have been extremely fortunate.  If you breach the Probation Order, if you do not do exactly as you are told by the Probation Service, if you do not do exactly what you are told to by the community service people and turn up and work hard when you are there and if you re-offend or any of these things happen you will be brought back here and you will then go to prison. 

14.      Finally, we commend Mr Herd, Mr Rooney and Mr Wallace for their actions that night.  They clearly acted in a most responsible way in looking after the victim, taking him to the hospital and then staying with him for an hour whilst his family arrived.  We would be grateful Mr Belhomme if you would pass on the Court's commendations to those three individuals, and indeed to the others that behaved very responsibly as well, but those three in particular.

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