Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2012]JRC002

Royal Court

(Samedi)

4 January 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton, Le Cornu, Fisher, Marett-Crosby, Milner and Olsen.

The Attorney General

-v-

Kelvin Mwaura Ng'Ang'A

Alex Ngila Wambua

Bryan Marve Ogesa

Sentencing by the Superior Number of the Royal Court, to which the accused were remanded by the Inferior Number on 25^th November, 2011, after conviction at Assize trial on the 15^th November, 2011, on the following charges:

Kelvin Mwaura Ng'Ang'A

1 count of:

Grave and criminal assault (Count 1).

Age:  27.

Plea: Guilty.

Details of Offence:

The victim of the assault was married to and lived with the sister of Ogesa.  Also living at the same property was the sister of Ng'Ang'A.  Victim and wife were estranged albeit living in the same house with victim sleeping in separate room.  Victim had previous history of drug use.  Alleged that he had taken £750 which had been provided for the rent money.  On the night prior to the assault victim had booked a flight to his native Ireland as the situation had deteriorated and he feared for his own safety.  Victim throughout denied taking the rent monies. 

Ogesa drove his two co-accused to victim's home address and at 02.55am the three men entered the victim's bedroom.  The light was turned on and Ng'Ang'A and Wambua attacked him.  Ng'Ang'A was holding the victim down and both men were punching victim to the face with force.  Wambua stabbed victim in the right leg close to the knee cap with a screw driver.  Ng'Ang'A produced a pair of pliers which he used to snip the top of victim's left ear.  Throughout the assault the victim was being questioned about the rent money.  Wambua suggested that they should cut him somewhere else i.e. his testicles and at this point the victim kicked out.  He was then hit by Wambua who had picked up half of the victim's pool cue which had been in a case in his room.  He was hit a number of times with the pool cue.  Ogesa had entered the room with the other two males but did not participate in the violence.  One of the defendants, the victim alleges, then took his passport.  The assault had lasted some 10 - 15 minutes.  Victim's passport, the pliers, screwdriver and half a pool cue used in the assault were never recovered.  The force of the assault upon him resulted in his metal framed bed being broken.  Substantial blood stain on the bed, bedding and on the surrounding walls. 

After the defendants had left the premises, being driven away by Ogesa, victim called for an ambulance who in turn called the police.  Victim sustained a total of 13 separate and distinct injuries.  After being examined by Doctors and giving a statement to the police, victim left Jersey and only returned for the purposes of the trial.  Provided a Victim Impact Statement for sentencing. 

In interview Ng'Ang'A admitted being present and slapping the victim but denied using any weapon or causing any of the injuries.  Claimed when left the room there was no blood.  Wambua admitted going to the room and seeing blood but denied seeing any violence or participating in any violence.  Ogesa relied on right to silence.  

Ng'Ang'A prior to trial entered guilty plea on a factual basis unacceptable to the Crown.  After trial entered factual basis which was acceptable to the Crown as follows:-

1. Ng'Ang'A sat astride the victim on his bed and slapped him once to wake him up. 

2. Slapped him with the back of his right hand no more than 10 further times to the right side of his face. 

3. Ng'Ang'A was wearing a heavy ring on his right hand. 

4. Ng'Ang'A accepted responsibility for causing all the injuries above and below victim's right eye. 

5. Ng'Ang'A accepted that he caused a cut to victim's ear. 

6. Ng'Ang'A accepted that he had gone to see the victim to speak to him about the rent money.  He had not made a plan with the co-accused to assault victim.  He did not know that Wambua was going to be involved.  Ng'Ang'A accepted that Wambua was involved and thus a joint enterprise was formed. 

7. Ng'Ang'A denied going to the house armed with a pair of pliers but stated he found them lying in the house and decided to take them to the room so as to threaten the victim to encourage him to admit where the missing money was.  Admitted being responsible for causing injury to the ear. 

 

Wambua gave evidence on his own behalf at trial.  There was some suggestion by Defence counsel that victim's injuries or some of them had been self inflicted.  Ogesa did not give evidence at trial but called character evidence. 

Case left to Jury in relation to Ogesa that he could be found guilty of Count 1 or if the Jury felt that he had not actually been involved in the assault but had aided or assisted the two men who had committed the assault, then it was open to the Jury to find him guilty of the alternative Count.  In the light of the Jury's verdicts the Crown accepted the factual basis for Ogesa for sentencing was to the effect that his involvement was that of aiding and abetting the two defendants by being present in the room and then driving them away. 

The Crown had categorised the attack as being a punishment beating.  At sentencing in accordance with the cases referred to, the Crown had taken a "starting point" of 7 years imprisonment for Ng'Ang'A and Wambua. 

Details of Mitigation:

The Crown

Guilty plea, albeit factual basis only provided after the conclusion at trial.  Not a young offender nor a first offender.

The Defence

Suggested Crown's conclusions were excessive and a custodial sentence could be avoided.  Ng'Ang'A had gone to challenge victim as to the location of rent monies and then became angry and frustrated.  He had known the victim many years, considered him a friend.  Suggested victim was not an innocent and his own behaviour was not acceptable. Suggested victim's injuries were not that serious albeit acknowledged that the incident would have been frightening.  Remorse and good references.  Good working record.  The Crown's application for a recommendation for deportation was opposed on the grounds that neither tests applied. 

Previous Convictions:

Causing breach of the peace, resisting police and obstruction/refusing to obey police.

Conclusions:

Count 1:

Starting point 7 years.  4 years' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

The defendants, Ng'Ang'A and Wambua to be sentenced for the offence of grave and criminal assault committed on the victim on 13th January, 2011, and Ogesa to be sentenced for the offence of aiding or abetting or participating in that offence.  Ng'Ang'A had pleaded guilty albeit belatedly.  Wambua and Ogesa convicted after trial.  The victim had been in his bed at 02.55 hours when the three men had entered the room.  The light had been turned on and Ng'Ang'A and Wambua had then attacked him.  Ng'Ang'A was holding him down and Ng'Ang'A and Wambua were both punching him.  Victim had felt a blow to his right leg and saw Wambua with a screw driver which he had used to stab the victim.  Ng'Ang'A had used pliers which had clipped the victim's left ear.  Victim had been questioned about the £750 which had gone missing which Ng'Ang'A had given for rent.  Wambua had suggested using the pliers to cut testicles.  Victim had then been hit by Wambua a number of times with a pool cue which had been in the room in its case.  Ogesa had not participated in the violence but was in the room throughout and drove his two co-accused away.  All three defendants had originally pleaded not guilty.  Ng'Ang'A belatedly offered a guilty plea but the factual basis at the time was not acceptable to the Crown.  That factual basis changed and it was accepted.  Court quoted the factual basis as accepted by the Crown.  A person who participates in an assault which is a joint enterprise takes responsibility for the whole assault irrespective of what part they actually play in that assault. 

Here we have a man, victim, who was woken from his sleep in the early hours of the morning and assaulted by two men using weapons.  There was a third man in the room which from the point of view of the victim must have added to it.  The Crown described it as a terrifying experience and the Court is in no doubt that it was just that.  The physical injuries are only part of the seriousness of the assault and the Court has no doubt at all that this attack on a man in his home, in his bed, must have been a terrifying experience.  It has been suggested by counsel for Ng'Ang'A that the assault must have been provoked by the victim.  The Court would like to make it absolutely clear that it rejects that.  It was not the victim's fault - nothing justifies this conduct, which was a very serious offence indeed.  The extent of the violence is shown by the fact that the bed was broken and the different implements that were used.  The Court does not see any particular distinction between the use of pliers and the use of a knife and the other implements used.  An aggravating factor was that there were children in the house at the time when the assault took place. 

The Court accepts the circumstances as agreed by the Crown.  It was unplanned and spontaneous assault.  Had the defendants gone with the intention of committing the assault then the case would have been much more serious.  The Court accepts and sentences the defendants upon the basis that it was a spontaneous assault after the men had gone into the room when the victim was asleep. 

In the case of Ng'Ang'A and Wambua, and with the exception of the guilty plea of Ng'Ang'A, the Court felt there was not much to distinguish between the two defendants.  Previous convictions not that serious.  Good employment records and references confirm the offence out of character.  Nevertheless this was a terrifying experience for the victim.  Court considered appropriate sentences to be 5 years' imprisonment for Wambua and 4 years' imprisonment for Ng'Ang'A and drew distinction between the two men on the basis of Ng'Ang'A's guilty plea and the Court had taken account of that guilty plea and the time at which it was entered and the surrounding circumstances. 

The Crown had also sought a recommendation for deportation.  One Jurat had been in favour of recommendation but the majority was not in favour and that in consequence no recommendation was to be made.  The Court had noted that this was a "one off" incident and based upon the information in the Social Enquiry Report neither was a general threat to the Community by their continuing presence.  Had the Court had to consider the second limb of the test on recommendation for deportation then the rights of the child and of the unborn child and their partners would have been taken into consideration.  However, if there was a repeat of such conduct then the Court may not take the same view on a subsequent occasion.  If they do come back before the Court then both Ng'Ang'A and Wambua were warned that a recommendation for deportation would be seriously considered by the Court. 

Count 1:

4 years' imprisonment.

No recommendation for deportation made. 

Alex Ngila Wambua

1 count of:

Grave and criminal assault (Count 1).

Age:  38.

Plea: Not Guilty.

Details of Offence:

See Ng'Ang'A above.

Details of Mitigation:

The Crown

Found guilty at trial, therefore no benefit of guilty plea.  Not a young offender.  One previous conviction for violence. 

Defence

Wambua accepted Jury's verdict albeit claimed he had not been involved in the physical attack.  Suggested Crown's conclusions were excessive.  Recommendation for deportation opposed.  Disputed characterisation of offences being "a punishment beating".  Injuries not as serious as they could have been.  Weapons not taken to the scene but found at the location.  Letter of remorse.  Wambua while on bail had not re-offended.  In custody since conviction.  Character references provided.  Girlfriend was currently pregnant with their first child.  Deportation would be disproportionate. 

Previous Convictions:

Battery.

Conclusions:

Count 1:

Starting point 7 years.  6½ years' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

See Ng'Ang'A above.

Count 1:

5 years' imprisonment.

No recommendation for deportation made.

Bryan Marve Ogesa

1 count of:

Having aided, abetted or participated in the act of grave and criminal assault (Count 1A).

Age:  24.

Plea: Not Guilty.

Details of Offence:

See Ng'Ang'A above.

Details of Mitigation:

The Crown

Found guilty of alternative count.  Therefore, no benefit of guilty plea.  Not a young offender nor good character.  Given lessor role etc. no recommendation for deportation sought.  Warning as to future conduct. 

Defence

Ogesa aged 23 at the time.  Suggested residual youth.  Had made a bad decision in staying in the room and then taking the other two defendants from the scene.  Had no desire for violence to take place.  Letter of remorse handed up.  References supportive.  Complied with bail conditions.  No risk of re-offending.  Non- custodial sentence appropriate. 

Previous Convictions:

Drink driving, no insurance and grave and criminal assault. 

Conclusions:

Count 1:

Starting point 7 years' imprisonment.  2 years' imprisonment.

Sentence and Observations of Court:

See Ng'Ang'A above. 

The Court turned to Ogesa who was in a slightly different position as he had been not convicted of the joint enterprise but convicted of aiding or abetting or participating in the offence.  Essentially his involvement was to drive the two co-accused away from the scene knowing that they had assaulted the victim.  However, Ogesa had a clear choice when he had seen the others committing the offence.  He could have left straight away or he could have told them not to do it.  He should not have stayed and he should not have assisted in driving them away.  Ogesa should, therefore, take his share of the blame for the seriousness of the offence.  The Court concluded that prison could be avoided, albeit two Jurats were in favour of custodial, the majority were not.  A Community Service Order would be imposed.  This was not a let off.  Ogesa given a clear warning if he did not perform or committed a further offence, then he was at risk of being returned to the Court and a custodial sentence being imposed. 

Count 1:

240 hours' Community Service Order, or 18 months' imprisonment in default.

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

Advocate P S. Landick for Ng'Ang'A.

Advocate J. W. R. Bell for Wambua.

Advocate S. M. J. Chiddicks for Ogesa.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Ng'Ang'A| and Mr Wambua, you are to be sentenced for the offence of committing a grave and criminal assault upon the victim on 13^th January last year.  Mr Ogesa you are to be sentenced for aiding, abetting or participating in that act.  Mr Ng'Ang'A pleaded guilty, although belatedly, and Mr Wambua and Mr Ogesa were convicted after a trial. 

2.        The facts were that the victim was at home asleep in his bed and at approximately five to three in the early hours of the morning he was woken up by the three of you coming into his room.  The light was turned on and Mr Ng'Ang'A and Mr Wambua then attacked him.  Mr Ng'Ang'A was holding the victim down and both were punching him.  The victim felt a blow to his right leg close to his knee cap, and he saw that Mr Wambua had a screwdriver, which had been in the victim's room, and which was used by Mr Wambua to stab the victim.  The victim could not get away; he was pinned down and could not defend himself.  Mr Ng'Ang'A then produced a pair of pliers which was used to the top of the victim's left ear.  Throughout this assault the victim was being questioned as to where £750 was, this money apparently given to him by Mr Ng'Ang'A in order to assist in paying the rent.  Mr Wambua suggested that the pliers should be used to cut the victim in his testicles and at that point the victim tried to kick out. He was hit by Mr Wambua who had picked up the pool cue, which was in its case in the victim's room; he was hit a number of times.  Mr Ogesa was not participating in the violence but he was in the room throughout and when the assault concluded, he drove his two co-accused away from the premises. 

3.        All three of you originally pleaded not guilty.  Mr Ng'Ang'A, belatedly, offered a plea of guilty on a factual basis which was not accepted by the Crown, but the revised factual basis for the guilty plea has been accepted and amounts to this.  Mr Ng'Ang'A admits that he sat astride the victim on his bed and slapped him once to wake him up.  He admits slapping him with the back of his right hand; no more then ten further times to the right side of the face; he admits he was wearing a heavy ring on his right hand when he did this; he caused all the injuries above and below the victim's right eye; he accepts he caused the cut to the victim's ear.  The next part of the agreed statement of facts has a bearing on Mr Wambua and Mr Ogesa as well.  Mr Ng'Ang'A had gone to see the victim because the victim had been avoiding him and he wanted to speak to him about the rent money.  He had not made a plan with his co-accused to assault the victim and he did not know that Mr Wambua was going to get involved.  But he accepted that Mr Wambua did get involved in the assault and therefore the joint enterprise was formed.  Mr Ng'Ang'A denied going to the house armed with the pliers; he found them lying near the victim's room and decided to take them into the room as a threat to encourage the victim to admit where the money was. As to the injury caused by the pliers, the admission is that Mr Ng'Ang'A held the pliers over the top of the victim's ear while asking where the money was, placing pressure on the ear so that the victim knew the pliers were there, but it was when the victim struggled and jerked that the ear was cut. 

4.        The nature of an assault as a joint enterprise is that you take responsibility for the whole of the assault, whether you committed every component part of it or not.  Here though we have a man, a victim, who was woken from his sleep in the early hours of the morning, and was assaulted by two men using weapons.  There was a third man in the room which from the perspective of the victim, would have added to his fears.  The Crown described it as a terrifying experience and the Court is in no doubt at all that it was just that.  It may well be so, as defence counsel have suggested, that the physical injuries were not as bad as they could have been, but the physical injuries are only part of the seriousness of this assault.  The Court has no doubt at all that this attack on a man in his own bed at night by two people committing the violence and a third person in the room, must have been a terrifying experience for him.  It was suggested by counsel for Mr Ng'Ang'A that somehow or other it might have been provoked by the victim, that in some senses perhaps, this was the implication, it was the victim's fault for taking the rent money.  The Court would like to be absolutely clear that it rejects that argument.  It was not the victim's fault.  Nothing justifies this conduct, which was a very serious offence indeed.  The extent of the violence is shown by the fact that the bed was broken, and by the different implements that were used in the course of the assault.  The Court does not see any particular distinction to be drawn between the use of pliers and the use of a knife.  As to the other implements used, the snooker cue used to beat the victim and certainly the screwdriver used to plunge into the knee in similar fashion, again there is no real distinction in all the circumstances between the use of a knife.  An aggravating feature is that there were children in the house at the time that this assault took place. 

5.        Nonetheless the Court has to accept the circumstances that have been agreed by the Crown and in particular that this was an unplanned and spontaneous assault.  Had the three of you gone to the house where the victim was asleep with the intention of beating him up, that would have been much more serious but the Court accepts and sentences you on the basis that it was a spontaneous assault which arose after you had gone into the room where the victim was asleep. 

6.        Mr Ng'Ang'A and Mr Wambua, with the exception of the guilty plea which Mr Ng'Ang'A entered, the Court does not really see that there is much to distinguish between the two of you.  The previous records that you have, have been considered by the Court.  It is unfortunate you have the previous convictions that you have, but they are not as serious as some which come before this Court and you are entitled to some mitigation for that.  You both have good employment records and the Court gives you credit for that.  We have certainly had regard to the references which you have put before and they all again speak to your character and suggest that this offence was out of character for the two of you, and the Court sentences you with that in mind. 

7.        But, nonetheless, this was a terrifying experience for the victim and you have to be sentenced for what you have done.  The Court considers that the right sentence for you Mr Wambua is a sentence of 5 years' imprisonment, and for you Mr Ng'Ang'A is a sentence of 4 years' imprisonment.  The distinction between the two of you is simply that Mr Ng'Ang'A has pleaded guilty and the Court has taken into account the fact of that guilty plea and the time at which it was entered and indeed the circumstances in which it was entered. 

8.        The Crown has also moved for deportation in respect of the two of you.  The Court has given very anxious consideration to that.  I have to tell you that one Jurat was firmly in favour of making a recommendation for deportation but the majority are not in favour of doing so.  And so on this occasion the recommendation for deportation will not be made.  In particular the Court has had regard to the fact that this was a one off incident and to the fact that the social enquiry reports show that there is no general threat to our community by your continued presence in the Island.  We have not, for that reason, had to consider the Convention rights which come as the next part of the test following the rules in Camacho-v-AG [2007] JLR 462.  Had we had to do so then, in the circumstances of this case, at the moment, the rights of the child and unborn child would have been taken into account and your partners would have been taken into account, and also would have led to the conclusion that it was not appropriate to make a deportation recommendation in this case.  But that is not to say that if there were to be any repeat of such conduct in the future the Court would take the same view.  In all cases where a deportation recommendation is being considered, the Court has to balance all the different factors which are involved, and it seems to this Court that if the social enquiry reports are wrong and that you do in fact end up back before this Court again in the future, and we hope very much that you are not, - if you did then it would be likely that a deportation recommendation would be very seriously considered indeed. 

9.        Mr Ogesa, your position is slightly different from that of your co-accused, not just because you have not been convicted of the joint enterprise, but you have been convicted of aiding and assisting or facilitating in their offences.  Essentially your involvement was that you drove them away from the house after the offences had been committed but when you saw the offences taking place you had a choice.  You could have left straight away, you could have said I want nothing to do with this, that is what you should have done.  Alternatively you should have got involved to the extent of saying you should not be doing this, but even if you did not intervene to prevent the assault taking place, you should certainly not have stayed.  You should have left.  You should not have assisted by driving the co-accused away, in getting them away from the crime and in potentially assisting them in escaping detection.  You therefore must take your share of the blame or culpability for this offence which was, as I have said, a very serious offence indeed. 

10.      Having regard to all the circumstances, the Court thinks that a custodial sentence in your case can be avoided but that is also by a majority.  I tell you that two of the Jurats were in favour of a custodial sentence; the majority consider that a custodial sentence can be avoided and that a Community Service Order can be imposed instead.  That is not going to be a let-off for you.  It takes account of what you have actually done on this occasion, and it will be a serious amount of hours of community service that you are required to perform. 

11.      You are sentenced to 240 hours' community service. The alternative would have been 18 months' in custody.  I have to tell you that if you do not perform the terms of the Community Service Order then you will be at risk of being brought back to this Court and sentenced for the original offence which you have been sentenced for today.  So it is important that you perform that sentence.  The result will be that for over a year your free time is going to be seriously impeded by the performance of this order. 

Authorities

Camacho-v-AG [2007] JLR 462.

Harrison-v-AG [2004] JLR 111.

Attorney General Reference No. 26 of 2004 [2005] 1 Cr. App. R. (S) 25.

AG-v-H [2008] JRC 168.

AG-v-Slater [2011] JRC 107.