Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC103

Royal Court

(Samedi)

24 May 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Nicolle and Milner.

The Attorney General

-v-

Simon Paul Furzer

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

2 counts of:

Grave and criminal assault (Counts 1 and 2).

Age:  23.

Plea: Guilty.

Details of Offence:

Furzer was in town with his girlfriend and her sister.  Sometime after 11pm they went to Chambers public house.  Also at Chambers were Viktor Byalev, Shaune Carstairs and others.  The details of the incident for Count 1 were captured on CCTV.  Byalev fell against a friend, causing him to bump into Furzer's girlfriend's sister; there was a friendly, understanding exchange of words.  Shortly afterwards Furzer and his girlfriend returned to the area.  Byalev pestered the girlfriend, she pushed him away at arm's length, he came back closer.  The actions were repeated several times.  Furzer spoke to Byalev.  Carstairs grabbed hold of Furzer.  Door staff stepped in and calmed the situation.  Byalev returned and despite a friend trying to keep him away from Furzer's group, lunged for Furzer and grabbed him by the throat.  Furzer swung for Byalev with his right hand, still holding an unfinished pint, the glass shattering on Byalev's forehead (Count 1).  Door staff ejected Furzer from the premises.  Carstairs followed Furzer and apprehended him in Broad Street.  Both of them ended up on the ground.  Furzer punched once to the jaw (Count 2).  Carstairs later stated "When he realised I wasn't going to give up he struck me."  Carstairs sustained a cut to his lower jaw which also suffered a displaced fracture.  Byalev received four stitches to his scalp and numerous smaller cuts and grazes.  All three individuals were intoxicated. 

Details of Mitigation:

Early guilty plea; did not attempt to evade responsibility for his actions.  Appeared genuinely shocked and distraught when shown CCTV footage.  Apologetic and remorseful.  Hard working and conscientious; same employment since age of 18 training as an architectural technician.  Numerous excellent references. 

Previous Convictions:

Age 16 caused malicious damage following an instance of underage drinking - bound over for 6 months to attend Alcohol and Drugs Service as required plus £150 Compensation Order.  Fined for speeding shortly afterwards.  January 2011 sentenced in relation to grave and criminal assault committed when still 21, victim thrown to the ground, pinned down and repeatedly punched to the face - 180 hours' Community Service Order plus a 12 month Exclusion Order from licensed premises.

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	18 months' imprisonment, concurrent.

Total: 2 years' imprisonment.

Exclusion Order from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, The Jersey Arts Centre, Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House for a period of 12 months from the date of his release from prison sought.

Compensation Order in the sum of £2,343.30 (£183.30 Mr Byalev and £2,160 Mr Carstairs) sought.

Sentence and Observations of Court:

The Court felt able to reduce the Crown's conclusions as the "glassing" had not been deliberate and neither assault would have taken place had it not been for the actions of the victims, all strong reasons why a custodial sentence might have been avoided, however Furzer failed to heed what should have been the strongest possible warning when sentenced in January 2011 and was again drunk and violent.

Count 1:	12 months' imprisonment.
Count 2:	9 months' imprisonment, concurrent.

Total: 12 months' imprisonment.

Exclusion Order from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, The Jersey Arts Centre, Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House for a period of 12 months from the date of his release from prison made.

No Compensation Order made.

Ms E. L. Hollywood, Crown Advocate.

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 6^th December, 2012, you went out with your girlfriend and her sister and by 11pm you had become so intoxicated that your memory of the events later that evening has been substantially impaired.  No doubt as the result of the drink you had consumed, you reacted to provocation from your victims in the way that you should not.  The first victim pestered your girlfriend and later lunged for you, grabbing you by the throat with his left hand and then with his right hand, and you swung your right hand at his head and the pint glass you were holding shattered, causing numerous cuts to his forehead, nose and cheek.  You left the nightclub and were pursued by the second victim and in Broad Street he caught up with you.  What actually happened then is slightly unclear but there was a struggle and you delivered a single punch which shattered his jaw and caused him significant injury.  We have seen impact statements, which no doubt you have read too, which show what an impact the events of that night have had on both of them. 

2.        The Court's policy in cases of drunken violence on the streets and in public places in St Helier is absolutely clear.  Unless there are very strong reasons which suggest otherwise, a custodial sentence is imposed.  We have listened very carefully to all that your advocate has said, and said well, on your behalf.  We recognise there has been a guilty plea and that you have cooperated with the police.  We recognise you did not intend to use the glass as a weapon.  You delivered a blow and it was not a deliberate glassing such as, unfortunately, we sometimes see in this Court.  We recognise that but for the conduct of the victims neither of these offences would have taken place.  We recognise that you are now remorseful and we note your apologies. 

3.        These are all strong reasons why a court might have avoided a custodial sentence but in this case there is a further feature.  Not only were you drunk, which is an aggravating factor, but this is the second occasion in 2½ years that you have been before the Court on a charge of grave and criminal assault, and if there was mitigation available to you from your age, it is reduced by the fact that you have previously experienced the process which this conduct attracts.  I just want to remind you of what was said to you on the last occasion.  After describing the assault the Court said:-

"It was undoubtedly the result of drinking too much and it has been said by this Court many times that the excessive consumption of alcohol is not a mitigating factor.  It does not make it better, it makes the offence worse.  It is not surprising that that is so because we are told by the health authorities regularly that the consumption of alcohol in this Island is excessive and what it leads to is a lack of ability to exercise self-control and self-discipline, or it can do, and that is exactly what has happened here."

And then I referred on the last occasion to the Criminal Justice (Young Offenders)(Jersey) Law 1994 because you were treated under that legislation, although you were 21 at the time of sentence. 

"The law is there because it requires the Court to recognise that a young person's judgement is sometimes immature and a young person is likely to make a mistake, and let there be no doubt about it, on this occasion you made the first serious mistake by drinking too much.  And the consequences of making mistakes can be very serious; in both of your cases [you and your co-accused] the consequences of this mistake could easily have been a custodial sentence which would put your jobs and your future career at risk.  By a whisker you are going to avoid that."

That is what you were told in 2011. 

4.        What was said on that last occasion should have been the strongest, clearest warning to you and in the circumstances the Court cannot see its way clear, on this occasion, to avoid a custodial sentence.  But we take into account all the mitigation that has been advanced by your counsel and we think the Crown's conclusions in those circumstances are too high.

5.        Accordingly, you are sentenced to 12 months' imprisonment on Count 1 and 9 months' imprisonment on Count 2; they will run concurrently, making a total of 12 months' imprisonment. 

6.        There will also be a 12 month Exclusion Order from the date of your release from custody and your time in custody, I hope, you will be able to use usefully. 

7.        We have given consideration to the question of a Compensation Order.  We decline to make one given the conduct of the victims in this case. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Furzer and Hansford [2011] JRC 006.

Harrison-v-AG [2004] JLR 111.

AG-v-Williamson [2011] JRC 232.

Whelan on Aspects of Sentencing in the Superior Court of Jersey 3^rd Edition.

Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998.

Criminal Justice (Compensation Orders)(Jersey) 1994.