Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2013]JRC174

Royal Court

(Samedi)

5 September 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Le Cornu, Milner, Liston and Blampied.

The Attorney General

-v-

Philip William Baglin

Sentencing by the Superior Number of the Royal Court, after conviction at Assize Trial on 12^th August, 2013, on a charge of:

1 count of:

Grave and criminal assault (Count 1).

Age:  44.

Plea: Not guilty.

Details of Offence:

The defendant and victim were neighbours living in the same block of flats.  On the evening of the assault the defendant had seen the victim in a nearby shop and asked him to buy him some cigarettes, which the victim had refused.  A short while later the defendant had gone to the victim's flat and asked the victim for a beer, which had also been refused.  The defendant then barged his way into the flat and then committed an unprovoked, vicious assault upon the victim in his own home.  The assault consisted of 4-5 hard punches to the head and body (9 out of 10 in terms of degree of force), head-butt to the face, pushed to the ground and then a single kick to the left hand-side of the face (10 out of 10 for force of kick).  The victim sustained fractures to the jaw, left elbow and ribs with bruising to the face, neck, abdomen and back.  There were also lacerations to the rear of the head and to the left ear which requires stitches.  Cuts to the nose and mouth were also sustained which bled.  As the defendant left the flat he threatened the victim that if he contacted the police, either the defendant or his friends would come back and "slash" the victim.

The victim telephoned the police who attended.  The police officer at the scene was shocked at the sight of the victim who was covered in blood.  There was multiple blood-splashing on the furniture, curtains and floor in the victim's flat.

Other officers attended and arrested the defendant.  It was noted that his washing machine was in mid-cycle and it was stopped and items of clothing, including a pair of white trainers were removed.  All of those items of clothing etc. were identified as being worn by the defendant at the time of the assault.  A presumptive blood test proved positive from a swab taken from the drum of the washing machine.  Forensic examination of the trainers revealed a blood spot underneath the left trainer and beneath the stitching of the right trainer.  Blood was recovered which produced a low level DNA profile which was consistent with the DNA profile of the victim.  The forensic expert also confirmed that the blood staining was human blood and not dog blood as was to be subsequently alleged by the defendant. 

The defendant was interviewed under caution and denied any involvement in the assault.  He denied being present in the flat at any time or in any way being responsible for the injuries.  He said that his approach to the interview was to tell the truth one hundred per cent.  He sought to suggest that he was wearing clothing other than that recovered from the washing machine. 

When first presented before the Magistrate's Court he entered an unequivocal guilty plea to the charge.  On Indictment he pleaded not guilty and it became apparent at trial that his defence was that of self-defence.  He alleged that he was the victim saying that the victim was the aggressor and that he had used reasonable force by the throwing of three hard punches and by pushing the defendant over.  The victim had allegedly attacked him with a Jif lemon filled with ammonia.  The Crown's position at trial was that the allegation of self-defence was an entirely fabricated one and the jury returned a unanimous verdict thus rejecting the Defence's case. 

The Crown took a starting point of 7 years' imprisonment having regard to the application of the relevant factors found in Harrison-v-AG.  The Crown categorised the defendant as acting as a bully who committed a vicious and unprovoked assault in the victim's own home.  The defendant had an extensive criminal record for offences of violence. 

At sentencing Defence Counsel contended that pursuant to the dicta in Hamilton and Owens-v-AG that the defendant should be sentenced on his factual basis.  The Crown's contention was that this was not a case where the dicta applied as they were two entirely different factual scenarios and it was clear by the verdict of the jury that they had rejected the allegation of self-defence. 

Details of Mitigation:

The Crown

The case had a convoluted procedural history and three previous sets of trial dates had been fixed and cancelled following applications arising out of the conduct of the defence case.  All of those delays were as a direct consequence of the defendant's own actions or the conduct of his defence and therefore did not give rise to any mitigation.  The Crown contention was that the defendant had no mitigation available to him.  He did not have the advantage of a guilty plea or good character.  He has shown no regret or remorse.  He admitted that he had deliberately lied to the police throughout his interview under caution. 

The Defence

It was acknowledged by the defence that the normal mitigating factors were not available to the defendant.  The defence made three submissions.  The first was that the dicta in the Hamilton and Owens-v-AG should be applied, meaning that the defendant should be sentenced on his version of events.  Secondly, the starting point even on the Crown's case was too high and thirdly some irrelevant issues had been reflected in the starting point. 

Previous Convictions:

26 convictions for 79 offences including 14 offences against the person for grave and criminal assault, common assault, assault causing actual bodily harm, affray, etc.  the record included offences of larceny, criminal damage, obstruction of the police, obtaining property by deception, attempting to pervert the course of justice, racial aggravated harassment, possession of controlled drug, failure to surrender to custody and motoring offences. 

Conclusions:

Count 1:

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

Sentence and Observations of Court:

The defendant was to be sentenced for one count of grave and criminal assault for which he was found guilty by unanimous verdict by a jury following trial.  The Court noted that there was no dispute that on 28^th February, 2012, an assault took place in the home of the victim.  The only direct witnesses were the victim and the defendant.  Their version of events differed fundamentally.  The Court then summarised the incident according to the victim and then the incident according to the defendant as advanced at trial.  The Court then considered the point raised by Defence Counsel in reliance upon the ruling in Hamilton and Owens-v-AG.  If the Court was to follow that submission, then this would mean that the victim had been lying to the jury regarding the fundamentals that he was not the aggressor if that was their conclusion.  One version of events was put by the Prosecution and one by the defendant.  They were different versions.  The jury in their verdict found for the Prosecution case.  Baglin was to be sentenced on the Prosecution's case. 

Baglin had an appalling record.  He showed no remorse.  The Court noted that he had been sentenced for grave and criminal assault in which he slashed an individual in public causing a substantial injury requiring 55 stitches and this in 2005.  That victim had been scarred for life and the assault was committed following Baglin's desire for revenge for the individual refusing to commit perjury for him.  The social enquiry report noted that he was of high risk of reoffending within 12 months and a high risk of causing harm within 12 months. 

The Crown said there was no mitigation and sought 7 years' imprisonment.  The Defence said 7 years was too high and it should be 4 years.  In the previous case the starting point was 6 years and the Royal Court increased it to 7 years to reflect the assault which was unprovoked and involved a knife.  The assault before the Court was also unprovoked and vicious albeit no knife was used.  The Court noted the references in the work of C. E. Whelan to the cases of AG-v-Pallett [2009] JRC 241 and Harrison-v-AG. 

We have considered very carefully all of the cases that Advocate Fitz raised and we have looked through them and that is why it has taken so much time to reach our decision.  We agree with the Crown that a high starting point in this case is justified because:-

1. We agree with the Crown that this case involves an unprovoked vicious attack on a man in the security of his own home.  He suffered serious injuries.  We have noted the effect upon him as stated in the victim impact statements.

2. The defendant has a very bad relevant record including the grave and criminal assault in 2005.  As noted in Harrison-v-AG a bad record justifies a higher sentence. 

3. We agree with the Crown that trying to compare the facts with other cases for the purposes of sentencing is not a constructive approach due to the difference in facts and mitigation. 

The Court whilst understanding why the starting point of 7 years had been suggested, we consider that a starting point of 6 years is a correct reflection of this serious offence.  The Court has considered all of the documents that have been put before it by the Defence but there is no mitigation and therefore no reduction of sentence beyond the starting point. 

Count 1:

Starting point 6 years' imprisonment.  6 years' imprisonment.

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

Advocate S. E. Fitz for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for one count of grave and criminal assault for which he was found guilty by the unanimous verdict of the jury following his trial. 

2.        It was not in dispute that an incident took place on 28^th February, 2012, in the home of the victim.  The only direct witnesses to that incident were the defendant and the victim and their evidence of that incident differed fundamentally. 

3.        The victim described an unprovoked attack by the defendant in which, having pushed his way into the victim's flat, without warning, the defendant punched him some four or five times to the face and body very hard, head-butted him, pushing him to the ground, where he landed heavily against the door tread.  Whilst on the ground the defendant then kicked him once, very hard, to the side of the face.  The injuries inflicted were substantial, with the victim suffering a fractured left jaw, a fracture of his left elbow, a fracture of his ribs, bruising to the face, neck, abdomen and back, and lacerations to the rear of his head and left ear.  He was taken to hospital where his injuries were photographed and they are graphically illustrated from those photographs.  We have also seen photographs of the room showing extensive blood over the furniture, carpets and curtains.  The medical evidence was that his injuries were consistent with his account of the incident. 

4.        At the trial, the defendant's account was quite different.  He said that the victim had invited him into the flat and when stooping to pick up a blank cd, which he said the victim had asked him as a favour to burn music onto, the victim had without any warning or provocation, punched him full in the face.  His immediate reaction was to defend himself by throwing two left-hand punches, and one right, a combination he had used as a boxer, which knocked the victim to the ground.  As he turned to leave, he said he was again attacked from behind by the victim, who then rushed at him and squirted ammonia over him from a yellow squirt bottle.  He denied kicking the victim.  His doctor could find no evidence of any injuries to the defendant. 

5.        Advocate Fitz drew our attention to the standard direction given to the jury on self-defence.  The jury, she said, could have found that the defendant was acting in self-defence but used an unreasonable amount of force.  Following Hamilton and Owens-v-AG [2010] JCA 136A the jury, she submitted, should have been asked which version they found for.  That not having been done, the Court, she said, should sentence the defendant on the basis of his version of the facts, which would have an effect on sentence, as there would have been evidence of provocation on the part of the victim.  In other words, we would sentence on the basis that the victim was lying to the jury about the fundamentals of this incident, in particular, that he was not the aggressor.  If that had been the conclusion of the jury, then we cannot see how a conviction would have followed.  In our view the reality here is that the jury had one version of the events put forward by the victim and one by the defendant and they unanimously found in favour of the victim.  We conclude therefore that the defendant does stand to be sentenced on the basis of the prosecution case. 

6.        The defendant has an appalling record and has shown no remorse.  He was sentenced to 7 years' imprisonment in March 2005 for a grave and criminal assault, where, in public, he slashed his victim across the face with a knife, requiring 55 stitches and scarring him for life.  This attack was motivated by a desire for revenge for the victim's refusal to commit perjury on the defendant's behalf.  The defendant is assessed at a high risk of reconviction within 12 months and of posing a high risk of harm through violence in the future. 

7.        The Crown assess the defendant as having no mitigation available to him and seek a sentence of 7 years.  Advocate Fitz submits that the starting point of 7 years is too high.  In the previous case involving the defendant, the Crown had sought a starting point of 6 years, which the Royal Court had increased to 7 years, to reflect the fact that this was an unprovoked vicious attack with a knife, causing a grave wound to the victim.  There being no mitigation that was the sentence imposed on that occasion.  The assault in the case before us is also unprovoked and vicious, but it did not, she says, involve a knife or the infliction of such a grave wound.  On examining the section in Whelan on Aspects of Sentencing dealing with grave and criminal assaults, there is only one case of which there was a starting point of 7 years for this kind of attack, and that is the case of AG-v-Pallet [2009] JRC 241 where the victim was set upon in a public place and kicked repeatedly in the face with one blow of such ferocity that the victim lost the sight of one eye.  She further drew our attention to the case of Harrison-v-AG [2004] JLR 111, where the Court of Appeal upheld a sentence of 3½ years after a trial for an assault in a public place, where the victim was kicked in the head with such force that he too lost the sight of an eye.  The starting point in that case, again approved by the Court of Appeal, was 5 years. 

8.        We have considered this issue very carefully and all of the cases that Advocate Fitz took us through.  That is one of the reasons why we have been deliberating for this length of time.  It is true that the starting point sought by the Crown may appear high when compared to other cases but, in our view, a high starting point is well justified for the following reasons:-

(i)        We agree with the Crown's assessment of the criteria as set out in Harrison.  This was an unprovoked, vicious attack upon a man in the security of his home, in which he suffered serious injuries.  The effect that the assault has had upon him is clear from the impact statements which we have read. 

(ii)       The defendant has a very bad relevant record and, as Harrison makes clear at paragraph 70, a relevant bad record justifies a higher sentence.  This is particularly the case where the defendant was convicted of a very serious grave and criminal assault in 2005, let alone his earlier convictions for violence.  

(iii)      We agree with Advocate Gollop that trying to compare the facts of this case against others is not ultimately an instructive process, as the facts and record always differ so materially as does the mitigation. 

9.        Having reviewed the matter and considered all of the submissions, we have concluded, by a majority, that whilst we can understand why the Crown moved for a starting point of 7 years, a starting point of 6 years is, in fact, appropriate to reflect the serious nature of this offence.  One Jurat would have applied a starting point of 7 years. 

10.      We have of course considered all of the other material placed before us and, in particular, the defendant's letter, but we agree with the Crown that there is no mitigation available to reduce the sentence beyond that starting point.

11.      You are sentenced to 6 years' imprisonment. 

[Postscript

Advocate Fitz submitted that a simple question could have been devised to put to the jury as to which version they found for.  There was no time to explore this at the sentencing hearing and it was not raised at the trial, but we would suggest that putting further questions to a jury as to which part of the evidence they believed and which they did not, is not a straight-forward exercise, with a real potential of unhelpfully increasing the burden upon them. 

The victim made his complaint immediately after the incident and gave evidence in Court.  It would be a surprising outcome for him if he learnt that notwithstanding a unanimous verdict, the defendant was sentenced by the Court on the defendant's version of the incident.]

Authorities

Hamilton and Owens-v-AG [2010] JCA 136A.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey (3^rd edition).

AG-v-Pallet [2009] JRC 241.

Harrison-v-AG [2004] JLR 111.

AG-v-Baglin [2005] JRC 030.

AG-v-Baglin [2005] JLR 180.