Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2014]JRC162A

Royal Court

(Samedi)

29 August 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Kerley and Milner

The Attorney General

-v-

Jose Carlos Viveiros

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:  28.

Plea: Guilty.

Details of Offence:

The defendant was in Pure nightclub celebrating the New Year with his girlfriend and other friends.  He had been drinking. 

After midnight the defendant was standing approximately one metre away from his girlfriend who was dancing.  He saw the victim approach his girlfriend and pinch her bottom.  The girlfriend immediately turned around.  The victim then took hold of her face and pulled her towards him whilst attempting to kiss her. 

The defendant walked up to the victim and pushed him away from his girlfriend, using his left hand.  He thought that the victim would "get the message" and walk away.  The victim did not step away and instead came back towards the defendant.  The defendant reacted instinctively and went to punch the victim with his right hand forgetting he was holding a glass. 

The victim's injuries were serious and very close to his left eye.  He had 12 stitches to his eyebrow and left cheek and the areas nearby were also glued.  He has permanent scarring to his cheek and eyebrow. 

A Newton hearing was held to determine whether the victim provoked the defendant by pinching his girlfriend's bottom and taking hold of her face to kiss her.  The Jurats found in favour of the defendant. 

Details of Mitigation:

Early guilty plea.  No intention to use the glass as a weapon.  Low risk of reconviction.  Good work record. 

Previous Convictions:

Four previous convictions relating to eleven offences.  No previous convictions for violence. 

Conclusions

If the Court were not minded to impose a custodial sentence, the Crown noted that the defendant was in a position to pay compensation to the victim. 

Count 1:

12 months' imprisonment.

Compensation order in the amount of £2,000 sought.

Sentence and Observations of Court:

The Court emphasised that the mere fact that a defendant forgot they were holding a glass when trying to punch someone would not equate to a non-custodial sentence even in cases with provocation. 

Count 1:

180 hours' Community Service, equivalent to 12 months' imprisonment.

Compensation order in the amount of £2,000 made to be paid at £200 per month for 12 months or 4 months' imprisonment in default. 

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

Advocate E. B. Drummond for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You were with your girlfriend on New Year's Eve when the victim, who was a visitor from France, approached your girlfriend.  Shortly afterwards you struck him with a glass which you were holding in your right hand.  There was a difference between you and the victim as to what had actually happened.  He said that the attack was entirely unprovoked and that he had merely approached your girlfriend simply to talk to her.  You on the other hand said that he pinched your girlfriend's bottom and then when she turned round grabbed her face in an attempt to kiss her.  You pushed him away at that stage but he came back towards you whereupon you instinctively hit out and tried to punch him forgetting that you were holding the glass in your right hand. 

2.        There was a Newton hearing in order to determine which version the Court should sentence on.  The Prosecution failed to prove their case beyond reasonable doubt and accordingly we are going to sentence you on your version of the events, which I have just described. 

3.        Nevertheless, this was a nasty assault.  The victim suffered cuts to his face, he had to be taken to hospital and given stitches.  We have seen his personal statement; he is left with two scars and this has clearly had a significant effect on him. 

4.        In mitigation Advocate Drummond has emphasised a number of matters most persuasively.  He has referred to your guilty plea and he is absolutely right that you are entitled to the full discount for that having been successful on the Newton hearing.  He has pointed out that you have no previous convictions for violence, you have a good work record, you are assessed by the Probation Service as being at low risk of reoffending, you have provided a number of letters and references which we have read and show that there is an extremely good side to you and we have also read your own letter which has been handed up this morning. 

5.        Advocate Drummond has also referred us to three cases, those of AG-v-Taylor [2007] JRC 007, AG-v-Holmes and Parry 2001/83 and AG-v-Porter [2013] JRC 092A where non-custodial sentences were imposed for punches when the defendant forgot that he was holding a glass in his hand.  It is right to say though that in each of those cases there was very substantial provocation.  Indeed in a number of them the victim had been very much the aggressor in terms of violence. 

6.        We want to emphasise that the mere fact that a person forgets he is holding a glass when he tries to punch someone is not sufficient to lead to a non-custodial sentence whether or not it is technically called a glassing.  On the contrary, such an assault will inevitably lead to a prison sentence if it is unprovoked and may often do so even where there is provocation.  It all depends on the level of provocation and the other mitigation available.  But a defendant must take the consequences of his actions whether or not they were intended. 

7.        Advocate Drummond has urged that the combination of factors means that we can impose a non-custodial sentence here.  It is not just the intention to deliver only a punch and the fact that you forgot you were holding a glass, he refers to the provocation and to your initial reaction to it.  The provocation we have already described and it consisted of the approaches and actions towards your girlfriend.  But what has impressed us is that you did not immediately try and punch the victim after he had pinched your girlfriend and grabbed her face.  You first of all pushed him away.  Now if he had stayed away and not come back towards you we are satisfied that this assault would not have taken place, but for whatever reason he did come back towards you, and only then did you try and punch him forgetting that you had the glass and thereby leading to the serious injuries to him. 

8.        Putting these facts together with all the other mitigation which Advocate Drummond has put forward and in particular the fact that we accept that this is wholly out of character and you do not have a naturally violent disposition, we have just been persuaded that we can impose a non-custodial sentence but it has been a very close run thing.  That is because this Court is determined that people who commit assaults which lead to the sort of injuries that the unfortunate victim in this case has suffered, should normally go to prison to reflect society's disapproval of the use of violence.  Nevertheless, as we say, we have just been persuaded that the facts here are sufficiently exceptional to allow us not to send you to prison.

9.        We are going to impose a Community Service Order of 180 hours and I must warn you that you must carry out that to the letter because if you do not you can be brought back and then sent to prison. 

10.      We also make a Compensation Order in the sum of £2,000 payable at £200 per month over a period of 12 months and we impose a prison sentence of 4 months in default should that sum or any instalment not be paid

Authorities

AG-v-Holmes and Parry 2001/83.

AG-v-Porter [2013] JRC 092A.

Harrison v AG [2004] JLR 111.

Camacho v AG [2007] JLR 462.

AG v Abreu [2014] JRC 077.

AG v Furzer [2013] JRC 103.

AG v Wasiela [2014] JRC 054.

AG v Taylor [1994] JLR N 11d.