Jersey Unreported Judgments

[2009]JRC020

ROYAL COURT

(Samedi Division)

6^th February 2009

Before     :

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

The Attorney General

-v-

Carl Stephen Donkin

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

1 count of:

Grave and criminal assault.  (Count 1).

Age:  37.

Plea: Guilty.

Details of Offence:

The defendant and victim had a history of animosity going back some ten years while they were employed by the same employer.  Previous exchange of words but no violence.  The defendant was walking home late afternoon having been rained off work.  He had been in the pub consuming four to five pints.  Approached victim who was sitting outside a pub with a friend.  The victim was surprised to see him and described the defendant's demeanour as aggressive.  The victim got up and pushed the defendant back.  The two men scuffled.  The victim threw a punch but missed.  The men fell to the ground where the defendant got the victim in a headlock and punched him to the face four or five times.  The defendant then got up and whilst victim still on ground, kicked him once to the head and walked away. 

Victim suffered fracture to the jaw and loss of hearing to the right ear which was considered to be permanent.  Considerable impact upon victim in consequence of injuries.  Medical treatment, loss of work and effect on social life etc.

The Crown took a starting point of 5 years' imprisonment.

Details of Mitigation:

The Crown took the following factors into account:

Guilty plea entered at an early stage, eventually co-operative in interview making admissions.  Stable employment and provided good character references.  Not a young man and had a previous record but nothing for the last ten years.  He was viewed as being at low risk of re-offending.

The Defence described this as a moment of madness.  He was ashamed of his actions.  Expressed genuine remorse.  Greater detail provided as to the background of the animosity between the two men.  Because of presence of victim and friend felt frightened / threatened.  Actions were over reactions but these offences were committed as a momentary loss of control.  Low risk of re-offending emphasised, loss of potential employment.  Reports recommended possibility of a CSO.

Previous Convictions:

3 convictions for a total of 7 offences including assault/obstruction of police, common assault x 2 and public order offences.

Conclusions:

Count 1:

Starting point 5 years.  3 years' imprisonment.

Total: 3 years' imprisonment.

Exclusion Order sought from all licensed premises save for 6^th category licenses for 12 months' upon release.

Sentence and Observations of Court:

Generally the defendant was a hardworking family man.  He had acted completely out of character but there were serious consequences for his victim.  There was a history between the two men going back to a time when they were both employed by the same employer.  The employer had chosen the defendant over his cousin, the victim.  The Court was prepared to accept that on occasion the victim had been verbally aggressive and confrontational to the defendant in the past.  However, on this occasion it was the defendant who had gone over to the victim and the Court further accepted that he may not have meant to make a threat but had attempted to resolve matters between them.  The victim had pushed the defendant and a struggle then occurred.  They fell to the ground.  The defendant clearly lost control.  Whilst on the ground the defendant punched the victim three or four times to the head and then whilst on his feet and the victim still on the ground, kicked him to the head.  The consequences for the victim were serious involving a fracture to the jaw which required the inserting of metal plates and loss of hearing in the right ear which was permanent.  Defence counsel has spoken powerfully and eloquently on behalf of the defendant.  The Court noted the early entering of the guilty plea, co-operative with the Police, and good character in terms of references.  He had a previous record but nothing since 1998.  The defendant is married with three children and was identified as being at low risk of re-offending.  The Court accepted his remorse was genuine.  This was a moment of madness contributed by the needling he had received from the victim over a number of years.  The Court had thought long and hard as to whether it was possible to impose a non-custodial sentence but considered this to be a serious assault.  The Court had repeatedly said that those who engaged in such violence would attract serious punishment.  With considerable reluctance the Court found that it could not impose a non-custodial sentence.  However, the court did not consider the case as serious as categorised by the Crown under the Harrison guidelines.  The Court was therefore, able to reduce the conclusions considerably.

Count 1:

18 month's imprisonment.

Total:  18 months' imprisonment.

The Court did not consider it an appropriate case to make an Exclusion Order.

J. C. Gollop, Esq., Crown Advocate.

Advocate C. G. Parslow for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        All the material before us shows that you are a hard working family man and that what occurred was completely out of character.  But what you did has had serious consequences for the victim.  It is clear that there is a history between you going back to when you were both employed with your current employer.  It would seem that the victim insisted that the employer, who coincidently was his cousin, had to choose between keeping the victim on and keeping you on and it is clearly a reflection of how well you were and are regarded that the employer chose you with the result that the victim had to leave.

2.        We are prepared to accept that on occasions since then the victim has been verbally aggressive and provocative to you.  But the fact remains that on this occasion it was you who went over to speak to him in terms of sorting it out.  We accept that this may not have been meant as any form of threat to physically sort it out, but we can well understand it being taken in that way.  The victim clearly did so and pushed you away and then tried to throw a punch and a struggle ensued as a result of which you both fell to the ground.  It is at that stage that you lost your temper.  Whilst the victim was on the ground you punched him three or four times to his head and then, once you had got up, you kicked him once to his head whilst he was still on the ground and you then walked away.

3.        As we said at the beginning, the consequences for him have been serious.  He had fractures to his jaw which required surgery and the insertion of metal plates.  He also sustained damage to his right ear which has resulted in his losing the hearing in that ear.  This is expected to be permanent.  He also continues to suffer discomfort from the metal plates in his jaw.  So this assault on your part has had serious consequences for another person.

4.        Mr Parslow has spoken very eloquently and powerfully in your mitigation.  He has pointed out the many matters which can be said in your favour.  You have pleaded guilty from the outset and you were clearly honest and cooperative with the Police.  You are of good character in the sense that we have seen the excellent references from many people and letters of support.  When we say you are of good character, you have in fact got some previous convictions including some for assault, but they were when you were much younger and they clearly were not serious in that they were dealt with by modest fines.  You have not offended in any way since 1998.  You are a family man with three children and a supportive wife.  You are assessed by the Probation Service as being at low risk of re-offending.  We accept that you are indeed remorseful for what you have done and this was in effect, a moment of madness, no doubt contributed to by the needling which you had received from the victim over the years.

5.        The Court has thought long and hard on whether we can proceed by way of a non-custodial sentence as your advocate urges.  But we cannot escape from the fact that this was a serious assault with serious consequences for the victim and the Court has repeatedly said that such conduct will attract a custodial sentence. So with considerable reluctance, we have concluded that we cannot proceed by way of a non-custodial sentence.  But the Court does consider that, for the reasons put forward by Mr Parslow, the nature of the assault, although serious, was not as serious as was categorised by the Crown as it went through the various factors listed in the Harrison-v-AG [2004] JLR111 case.  There is also, as we have sought to describe, exceptionally powerful mitigation, so we think we can reduce the conclusions quite substantially.

6.        The sentence of the Court is one of 18 month's imprisonment.

7.        We do not make an Exclusion Order.

Authorities

Harrison-v-AG [2004] JLR 111.