Jersey Unreported Judgments

[2011]JRC150

Royal Court

(Samedi)

29 July 2011

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Fisher and Milner.

The Attorney General

-v-

Matthew Daniel Barnes

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:  30.

Plea: Guilty.

Details of Offence:

The defendant and victim ended their relationship a few days before the incident, but were living in the same property until the defendant could afford to move out.  On the evening of the assault the victim was having a bath.  The defendant went in to use the toilet.  The victim asked the defendant to leave to which he replied "See you lady, I've had enough of you" and put his hands round her throat and pushed her head under the water.  The victim was unclear how long her head was under the water for but she felt she was going to run out of breath, could feel the defendant strangling her and thought she was going to die.  The victim pushed her feet against the bottom of the bath and lifted her head out of the water.  The defendant still had his hands around the victim's throat strangling her and told her "You're going to die tonight".  The defendant pushed the victim's head back under the water for approximately one second before letting go.  The victim persuaded the defendant to allow her out of the bathroom.  The defendant alternated between being apologetic and threatening to kill the victim.  The victim managed to get outside and ran to her mother's home. 

In terms of physical injury, the victim had a sore neck and jaw, aching arms, bruising to her neck, shoulder and chest.  In interview the defendant stated that he acted in self defence and that he had not been drinking that night.  He eventually admitted these claims were not true and were an attempt to distance himself from the offence. 

Aggravating factors:  The defendant had consumed a large quantity of alcohol and take painkillers for the abscess on his tooth on the evening in question.  The assault was carried out without provocation at his former partner's home.  Not only was the victim strangled but she was strangled whilst in the bath and her head submerged.  The consequences of the assault could have been far worse. 

Details of Mitigation:

The defendant pleaded guilty.  The defendant had a good working record and had recently secured further employment in the care industry.  Whilst the defendant has a previous conviction for violence, it took place some 12 years ago when he was 17 and he has no further convictions of that nature.  Family history of depression and alcohol problems which have also affected the defendant.  A short time after the offence took place, the defendant sought to address his problems, the offence serving as a "wake up call".  He attended his GP who diagnosed him with depression and referring him to the Psychiatric Services.  He had also been working with the Alcohol and Drug Service and had made good progress.  The defendant showed genuine remorse for his actions and empathy for the victim. 

Previous Convictions:

Previous spent conviction for grievous bodily harm from 1999 - received a conditional discharge of 3 years and was ordered to pay £750 compensation.  Conviction for driving whilst being in charge of a motor vehicle with alcohol concentration above the prescribed limit which he received in May 2009 - fined £350 and disqualified from driving for 16 months until he passed his test. 

Conclusions:

Count 1:

2½ years' imprisonment.

Exclusion Order for 6 months following release from prison from 1^st, 4^th and 7^th Category premises sought.  

Sentence and Observations of Court:

The defendant had strong mitigation but the Court has repeatedly said that serious domestic violence attracts custodial sentence. 

Count 1:

2 years' imprisonment.

Exclusion Order from 1^st, 4^th and 7^th Category premises made from date of release.  

Miss E. L. Hollywood, Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This must have been a terrifying incident for the victim, with whom you had been living for about a year, although you had agreed to split up shortly before the incident.  Whilst she was in the bath you put your hands around her throat and you pushed her head under the water.  She thought she was going to die.  When she managed to push against the bottom of the bath and get her head out of the water you pushed it back under, albeit on that occasion for a very short time.  You were then very reluctant to let her go in case she complained about what you had done.  It was an unprovoked assault on your part.  You had clearly been drinking and this was exacerbated by the fact you had also been taking medication for an abscess.  But it is clear you have a problem with binge drinking, you are also depressed. 

2.        Initially when you were seen by the police you denied the incident and you tried to put the blame on her but it is fair to say that you soon afterwards accepted responsibility.  

3.        Mr Landick on your behalf has put forward some strong mitigation.  He has emphasised your guilty plea, the fact that although you have previous convictions they are not many and there is only one for assault which was a long time ago and was clearly minor.  He has emphasised your work record and we have seen the references, in particular we have been impressed with the work you have done as a carer and we have noted the references from your current employer and others in that respect.  We are satisfied that you are indeed remorseful and we have read your letter.  We have also read the letter from the victim, who has asked us not to impose a custodial sentence.  All in all we are quite satisfied that this was out of character. 

4.        But the Court has repeatedly said that serious domestic violence will almost invariably attract a custodial sentence because it has the effect of putting people, who are vulnerable in their own home, at risk.  This was undoubtedly a serious case of domestic violence; the nature of the assault was serious and as we have said already, it was extremely frightening for the victim. 

5.        Now as you have seen we have been retired for some time discussing this case and we have carefully considered whether we can impose a non-custodial sentence in your case.  But we have come to the conclusion that in view of the seriousness of what you did we cannot.  Therefore it must be a custodial sentence, but in view of the mitigation we do agree that the conclusions can be reduced. 

6.        The sentence of the Court is one of 2 years' imprisonment.  We make an Exclusion Order for 6 months from 1^st, 4^th and 7^th category premises after your release. 

7.        We hope very much that you will be able to take advantage of the courses in the prison to deal with some of the issues that you have been considering, also when you come out of prison if you feel the need, the Drug and Alcohol Service is available on a voluntary basis and if drink is a problem at that stage you should attend them.  As we said we think the offence was out of character and we hope, therefore, that when you are released you will be able to resume your career as a carer where you appear to be well-regarded, but that will be a matter for others. 

Authorities

Harrison-v-AG [2004] JLR 111.

AG-v-Da Silva [2011] JRC 113.

AG-v-Barwise [2009] JRC 182.