Jersey Unreported Judgments

[2010]JRC045

ROYAL COURT

(Samedi Division)

26^th February 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle and Nicolle

The Attorney General

-v-

Jon Sebastian Fenn

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:  35.

Plea: Guilty.

Details of Offence:

On 25^th July, 2009, the defendant and the victim both visited a mutual friend at his flat.  The victim was accompanied by his seven year old son, who witnessed the assault.  The victim knew the defendant by sight, but did not know his name.  The defendant had been at the flat, drinking, since about 2 pm when the victim arrived at 5 pm.  The defendant was sentenced in version of the facts, which was that the victim accused him of being a "child murderer", an allegation that particularly upset the defendant as he had lost a baby son to cot death some years earlier. 

The defendant than approached the victim and began punching him to the head whilst his son was sitting on the floor next to him.  The child was frightened and ran to the front door of the flat.  The defendant was pulled off the victim by the other men present in the flat and followed his son to the door.  A scuffle ensued and the defendant's hand was trapped in the door.  He also alleged that the victim bit his hand.  The victim took hold of his son and left the flat. 

The victim and his son walked towards Georgetown and were followed by the defendant, who caught with them and began to hit the victim in the head.  The victim told his son to run away, which he did.  The defendant continued to hit the victim, who fell backwards over the back of a bench.  This latter part of the grave and criminal assault took place in sight of independent witnesses.  The victim was described as being in a foetal position and the defendant punched him in the head three or four times.  The punches were described as "very solid and strong" by a witness, who also saw the victim's denture plate fly from his mouth.  The witness approached the defendant and shouted "what are you doing?"  She was very frightened and worried for her safety and walked away.  The defendant followed her, shouting.  When the witness heard the police sirens she returned to the scene to give a statement. 

The defendant returned to his friend's flat, where he was arrested.  In interview he admitted assaulting the victim in the flat, saying he had been provoked by being called a child murderer.  He did not remember following the victim or assaulting him in the street, but accepted that the independent witnesses account was true.  He estimated that he had drunk less than a quarter of a bottle of vodka.

The victim was taken to hospital where he was treated in Accident and Emergency.  He was found to have tenderness to the left side of his jaw and lip, together with a laceration to his lip, a small laceration on the lower gum and swelling to his left eye and scalp.  The mouth lacerations were undoubtedly a result of his piercings having been hit by the defendant.  There was blood in his left ear canal.  X-rays showed that he had a fracture of the upper left part of his jaw bone.  The victim's lower denture plate was also broken in the attack.  He was administered antibiotics and pain killers and discharged. 

Details of Mitigation:

The social enquiry report recommended a non-custodial sentence.  The defendant was provoked by the victim's allegation and the shutting of his hand in the door.  Agreed with the Crown's comment that this fell at the lower end of a grave and criminal assault, there were no kicks and no weapon was used.  No permanent injury resulted. 

Although he has a bad record, the defendant's last prison sentence was seven years ago and he had only been charged with a minor traffic offence since leaving prison.  He pleaded guilty and was cooperative with the police.  He had been on bail since the offence and had fully complied with his conditions.  His partner had given birth to a son since the incident and the child was unwell, the defendant having had his bail conditions varied to allow him to travel with his son to the UK for an operation. 

The defendant was no longer using heroin or drinking alcohol.

The defendant was assessed as being at high risk of re-offending. 

Previous Convictions:

12 convictions comprising 43 offences, including 2 offences against the person.

Conclusions:

Count 1:

12 months' imprisonment.

Sentence and Observations of Court:

There had been provocation and had the assault stopped after the incident in the flat a non-custodial sentence would have been imposed.  However it was much more serious as the defendant had followed the victim and his young son.  There was much mitigation and it was sad that the defendant had committed a further offence at this point in his life, but the Court had repeatedly said that violence in public is unacceptable.

Conclusions granted.

C. M. M. Yates, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Mr Fenn, you fall to be sentenced on your version of the facts.  The Court therefore accepts, and proceeds on the basis, that there was provocation in this case in that the victim called you a "child murderer" or words to that effect, which was particularly hurtful for you as you had lost a child back in 1998 to a cot death.  In addition, during the initial struggle in the flat, your finger became trapped in the door and the victim bit your hand.  However, you then lost your temper and began punching him to the head. 

2.        Nevertheless had the assault stopped there in the flat, the Court is in little doubt that it would have been able to proceed by way of a non-custodial sentence.  What makes your offending much more serious is that after the incident in the flat, the victim left with his 7 year-old son but you followed them and caught up with them.  You then attacked the victim again, so much so that he told his son to run away.  Having pushed him onto the bench so that he was lying in a foetal position, you held him down and punched him three or four times to the head with such force that you fractured his jaw. 

3.        The attack outside was witnessed by an independent witness, a woman, whom immediately after the attack, you followed, shouting at her and making her very scared.  She said "the whole incident left me very shocked at the level of violence used", and although we have not been given her name, we would wish to commend her for her public spirit in coming back to the scene when the police arrived and assisting in resolving this matter. 

4.        However, Mr Bell has put forward much mitigation on your behalf, and it is very sad that you have committed this offence now at this stage in your life.  You have a poor record and you have had a long-standing heroin dependency but, since you came out of prison in October 2004, you have stopped taking heroin and you have not re-offended other than in some very minor way which we discount.  You have pleaded guilty, you were co-operative with the police, you have a new relationship and you have a young child and we have heard about the medical problems that that child is suffering.  We have read carefully the probation report, the psychology report and the alcohol and drug report and we note the efforts which you have been making to turn your life around. 

5.        But the Court has repeatedly said that violence in public is not to be tolerated and will almost invariably attract a sentence of imprisonment.  Despite the recommendations of the background report and the various mitigation we cannot proceed by way of a non-custodial sentence given the circumstances of this offence and the fact that it carried on out into the street after the initial incident. 

6.        We think the Crown has allowed adequately for all the mitigation available in its conclusions and therefore the sentence of the Court is that you be sentenced to 12 months' imprisonment.

Authorities

Harrison-v-AG [2004] JLR 111.