Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault - larceny - behaving in a threatening and abusive way - resisting arrest - assault - drugs - possession of a controlled drug, Class B.

[2016]JRC203A

Royal Court

(Samedi)

8 November 2016

Before     :

Sir Michael Birt, Commissioner, and Jurats Fisher, Crill, Olsen, Sparrow, Thomas and Ronge.

The Attorney General

-v-

Ricky Lee Bree

Amy Ann Binnie

Sentencing by the Superior Number of the Royal Court, to which the accused Bree was remanded following conviction at Assize trial on 24^th August, 2016, on the following charges on the Second Indictment and also to which both accused were remanded by the Inferior Number on 2^nd September, 2016 and 28^th October, 2016 respectively, following guilty pleas to the following charges:

Ricky Lee Bree

First Indictment

2 counts of:	Behaving in a threatening or abusive way, contrary to Article 2(1)(b) of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 (Counts 2 and 3).
1 count of:	Grave and criminal assault (Count 4).

Second Indictment

1 count of:	Grave and criminal assault (Count 1).
1 count of:	Larceny (Count 2).
1 count of:	Resisting arrest (Count 3).

Age:  36.

Plea: Not guilty but found guilty at Assize trial on Second Indictment and guilty pleas on the First Indictment.

Details of Offence:

First Indictment

Bree attended the Social Security Department in order to speak to an adviser about special payments for rental accommodation.  He did not have the correct documentation with him.  He became agitated and was allowed to use the telephone to call his girlfriend.  Following the call, Bree threw the handset across the adviser's desk in an aggressive manner (Count 2). 

Bree returned to the Social Security Department the following morning.  Whilst an adviser spoke to him about his situation, he became agitated and began swearing.  Whilst using the telephone to speak to another member of staff, Bree continued to use inappropriate language, including a threat that he would "start chopping people up".  The adviser felt uncomfortable and pressed the internal panic button.  Following the call, Bree threw the handset across the desk.  He continued to swear as he was escorted out of the building (Count 3). 

Bree approached the victim outside the Tiki Hut.  He uttered words to the effect that he had "a blade" and quickly reached out towards the victim's face.  The victim managed to block Bree's hand which was in fact empty.  Bree followed the victim as he backed into the foyer area.  He swung for the victim twice and then put his arm around the victim's neck and held him in a headlock.  Several staff members intervened to separate Bree from the victim.  The parties were unknown to each other and the assault was unprovoked (Count 4). 

Second Indictment

Bree was found guilty of these offences at an Assize trial.  He committed the offences whilst on bail. 

CCTV footage showed Bree approach the victim and an unidentified man in Snow Hill Car Park.  Bree was acting in an aggressive manner and threw something on the ground as he approached.  Words were exchanged, and the victim and the unidentified man gesticulated towards Bree with their hands.  Bree then approached the victim so that he was standing right in front of him and began shifting his weight from one foot to the other as if preparing to fight.  The victim reacted to this by throwing punches at Bree and then began walking away in the direction of Green Street.  The CCTV footage then showed the victim running through the Car Park chased by Bree and Binnie. 

Bree caught up with the victim and punched him numerous times to the head and knocked him to the ground.  He then kicked the victim numerous times to the head and body as he lay on the ground.  Bree delivered further punches to the victim when he got back on his feet.  Binnie was present and was "giving verbal" to the victim.  She also delivered a punch to the victim's face once he managed to get back on his feet. 

Once the victim got to his feet, he ran towards his home address on Green Street.  He was again chased by Bree and Binnie.  The victim ran up the steps to Panama Apartments and tried to unlock the front door using his key.  Bree ran up the steps after him.  There was a struggle at the top of the steps before Bree pushed the victim down the steps.  The victim landed on his back on the pavement and hit his head.  Bree and Binnie then kicked the victim to the head and body as he lay on the ground.  Bree also stamped on the victim's head (Count 1). 

Bree fled when the police arrived.  Binnie assaulted the police officer who located and arrested Bree.  Bree and Binnie both resisted arrest (Counts 3, 4 and 5). 

Police officers recovered the victim's mobile telephone from the ground where Bree was restrained.  Bree had stolen it from the victim during the assault (Count 2). 

Binnie was in possession of a lump of cannabis resin (Count 9).  She was uncooperative and aggressive following her arrest.  Once in her cell, she refused to remove her shoes and kicked a police officer on the leg as she tried to remove them (Count 6).  She also spat at two police officers as her cell door was closed (Counts 7 and 8). 

Third Indictment

Binnie picked up a handbag and a pair of trousers from the shop rails at New Look.  Binnie paid for the trousers and then walked out the shop without paying for the handbag.  The police were contacted and the CCTV footage was reviewed.  Binnie was identified and she was subsequently arrested.  Binnie was on bail at the time of the offence. 

The Crown accepted that Binnie did not intend to steal the handbag at the time she exited the shop.  The mens rea for the offence was established when she realised she had taken the handbag without paying for it and made no effort to return it (Count 1). 

Details of Mitigation:

Guilty pleas to first indictment. 

Previous Convictions:

Extensive criminal history with convictions for 94 offences, including public order offences, drug trafficking offences, offences of violence and offences of dishonesty. 

Conclusions:

First Indictment

Count 2:	2 weeks' imprisonment.
Count 3:	4 weeks' imprisonment, consecutive.
Count 4:	12 months' imprisonment, consecutive.

Second Indictment

Count 1:	4 years and 3 months' imprisonment, consecutive.
Count 2:	2 months' imprisonment, consecutive.
Count 3:	2 months' imprisonment, consecutive.

Total: 5 years, 8 months and 2 weeks' imprisonment. 

Exclusion Order sought excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 18 months from date of release from prison. 

Sentence and Observations of Court:

First Indictment

Starting point 4 years' imprisonment.

Count 2:	1 month's imprisonment.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	9 months' imprisonment, consecutive.

Second Indictment

Count 1:	3 years and 10 months' imprisonment, consecutive.
Count 2:	2 months' imprisonment, concurrent.
Count 3:	1 month's imprisonment, consecutive.

Total: 4 years and 9 months' imprisonment. 

No Exclusion Order made. 

Amy Ann Binnie

Second Indictment

1 count of:	Grave and criminal assault (Count 1).
4 counts of:	Assault (Counts 4, 6, 7 and 8).
1 count of:	Resisting arrest (Count 5).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 9).

Third Indictment

1 count of:

Larceny (Count 1).

Age:  25.

Plea: Guilty.

Details of Offence:

See Bree above.

Details of Mitigation:

Guilty pleas to all counts.  

Previous Convictions:

Poor criminal record including convictions for public order offences, drug trafficking offences, offences of violence and offences of dishonesty. 

Conclusions:

Second Indictment

Count 1:	2 years and 5 months' imprisonment.
Count 4:	2 months' imprisonment, consecutive.
Count 5:	2 months' imprisonment, consecutive.
Count 6:	2 months' imprisonment, consecutive.
Count 7:	2 months' imprisonment, concurrent.
Count 8:	2 months' imprisonment, concurrent.
Count 9:	4 weeks' imprisonment, concurrent.

Third Indictment

Count 1:

2 weeks' imprisonment, consecutive.

Total: 2 years, 11 months and 2 weeks' imprisonment. 

Exclusion Order sought excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 18 months from the date of release from prison 

Compensation Order sought in the sum of £18.99. 

Forfeiture and destruction of the drugs sought.

Sentence and Observations of Court:

Second Indictment

Starting point 3 years' imprisonment.

Count 1:	18 month's imprisonment.
Count 4:	2 months' imprisonment, concurrent to Count 5.
Count 5:	2 months' imprisonment, concurrent to Count 4 but consecutive to Count 1.
Count 6:	2 months' imprisonment, concurrent to Counts 7 and 8 but consecutive to Counts 1, 4, 5 and 6.
Count 7:	2 months' imprisonment, concurrent.
Count 8:	2 months' imprisonment, concurrent.
Count 9:	1 month's imprisonment, consecutive.

Third Indictment

Count 1:

1 months' imprisonment, consecutive.

Total: 2 years' imprisonment, suspended for 2 years with a Supervision Order. 

Probation Order discharged, no separate penalty for breach. 

Exclusion Order made excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport and the ferry terminal at Elizabeth Harbour for a period of 2 years from today's date 8^th November 2016. 

Compensation Order made in the sum of £18.99 to be paid within 7 days or a default sentence of 1 week's imprisonment. 

Forfeiture and destruction of the drugs ordered.

M. R. Maletroit, Esq., Crown Advocate.

Advocate J. N. Heywood for Bree.

Advocate L. A. Ingram for Binnie.

JUDGMENT

THE commissioner:

1.        The Court is concerned with three Indictments.  The first concerns you alone Mr Bree.  There are two counts of behaving in a threatening and abusive manner when, as the Crown Advocate has described, on two different days you behaved very aggressively in the Social Security Department.  It clearly scared some of the staff and indeed one of them felt it necessary to press the panic button on one of the occasions.  The third count on that First Indictment involves a grave and criminal assault.  This was an unprovoked attack on a stranger.  It involved attempting to punch him and placing him in a head lock.  It was no doubt particularly frightening for the victim and the bystanders, because they thought you had a knife because of what you had said when referring to having a blade.  We do accept, however, that as grave and criminal assaults go, that particular one was at the lower end of the scale. 

2.        The Second Indictment, which concerns you both, is the most serious and in your case, Bree, was committed when you were on bail for the First Indictment.  In particular, the count of grave and criminal assault, Count 1, is the most serious.  Following an incident in Snow Hill you both chased the victim, a 43 year old man, to a point by the bus stop near Cedar Flats in Green Street.  There you, Bree, punched him several times and when he fell to the ground, you kicked him numerous times to the head and body.  Binnie, you were encouraging Bree, and you also punched the victim once as he managed to get to his feet.  Bree, you stole the victim's mobile phone as he lay on the ground by taking it out of his pocket.  The victim then ran down Green Street trying to escape, but you both chased him with Bree in the lead.  Bree, you caught up with him as he tried desperately to get into the flats where he lived, you pushed him down the steps back into the road and then kicked him and stamped on his head as he lay on the ground.  Binnie, you joined in and kicked the victim too at this stage.  The victim was left with more than 30 separate bruises and abrasions, and it is indeed fortunate that he did not receive any more serious injury.  When the police arrived, Bree, you ran off and, as the Crown Advocate has described, you resisted arrest and you, Binnie, interfered with that arrest and also assaulted one of the officers as he tried to arrest Bree.  Finally, Binnie, you were very obstructive at the police station and you committed the various assaults on the police officers at the police station described by the Crown Advocate 

3.        The Third Indictment concerns you alone Binnie and was committed by you when you were on bail for the Second Indictment.  It contains one count of shoplifting of a handbag.  The Crown has, however, accepted your basis of plea that you took it inadvertently originally, but then decided to keep it once you realised you hadn't paid for it. 

4.        Now Bree, we will deal with you first.  You have an appalling record including previous assaults and public order offences as well as numerous offences of dishonesty.  As your Advocate has very realistically accepted, there can be no alternative to prison for the current offences.  We are going to take first the most serious, namely Count 1 on the Second Indictment, the grave and criminal assault.  The Crown has suggest a starting point of 4½ years for that offence.  We have been referred to two other cases.  AG-v-Glowenkowski and Kujawski [2015] JRC 056 and AG-v-Mildren and Le Clercq [2016] JRC 134.  We think that the first two individuals in their case were quite fortunate with the sentence they received; we consider it to be on the lenient side, particularly given that one of them pleaded not guilty.  We think the facts of this case are broadly comparable to those of Mildren and Le Clercq and we consider that for Count 1 on the Second Indictment a starting point of 4 years is appropriate. 

5.        Now in mitigation, one often looks to see whether there is a guilty plea, but there was not in your case, so there can be no discount for the offences on the Second Indictment to which you pleaded not guilty, although we do, of course, give a discount to all those where you did plead guilty.  We have read the background report and we have noted in particular the gap in your offending for violence, and the submission of Advocate Heywood, who has said everything possible on your behalf, that there are reasons for optimism in that you are motivated to stay out of trouble in future.  We hope very much that that is indeed the case.  But these were serious offences and Count 1 of the Second Indictment in particular was a serious offence.  We think that overall there is not a great deal of mitigation and a deduction of 2 months' is appropriate to reflect it. 

6.        So, putting all those together, on the First Indictment the sentence is as follows: Count 2; 1 month's imprisonment, Count 3; 1 month's imprisonment, concurrent, Count 4; which is the first grave and criminal assault, 9 months' imprisonment, consecutive, so that is 10 months' imprisonment on the First Indictment.  On the Second Indictment, Count 1, we take a starting point of 4 years as we have said, and with the deduction for the mitigation we have just referred to, we impose a sentence of 3 years' and 10 months' imprisonment.  On Count 2; a sentence of 2 months' imprisonment, concurrent, because we think that the larceny was very much part of the other offending and is reflected in the sentence we have passed on Count 1.  Count 3; 1 month's imprisonment, but that is consecutive, because the police are indeed entitled to the Court's protection and we will normally pass consecutive sentences for offences on the police during the course of arrest or otherwise.  So that makes a total of 3 years and 11 months' imprisonment on the Second Indictment.  When added to the First Indictment that makes a total of 4 years and 9 months' imprisonment. 

7.        We do not make any Exclusion Order given the length of the sentence and the lack of evidence concerning alcohol as a contributory factor to the offending. 

8.        Turning to you Binnie, we agree that your part in the grave and criminal assault forming Count 1 of the Second Indictment was less.  It involved a single punch at the Cedar Flats area and then joining in the kicking at Panama Flats; for the most part you were following Bree.  We also have taken account of the point made by Advocate Ingram on your behalf that you did believe, although it may have been incorrect, that the victim had hit you at Snow Hill.  We think that taking into account these various factors, the correct starting point for you on that Count is 3 years' imprisonment. 

9.        Now in your case there is mitigation.  You have pleaded guilty to everything and we propose to give you a one-third discount for that.  We accept from the background report and what your Advocate says that you are remorseful and regret your involvement in these offences.  We have read carefully the contents of the background report and we think there are real grounds for believing that you do intend to conquer your drug habit.  We hope very much that that is indeed the case.  We have read with particular interest the references from members of your family and others.  It is clear that there is a very different side to you from the side which one saw on the occasion of these offences, there is a good side.  In particular, you have been caring for your father during his terminal illness and you have shown great responsibility in the way you have handled that and benefitted your family in taking the lion's share of the responsibility.  There can, however, be no alternative to a prison sentence in your case but we will consider in a moment whether it can be suspended. 

10.      The actual sentences we are going to impose are as follows.  On the Second Indictment, Count 1, having taken the starting point of 3 years we deduct 1 year for the guilty plea, an additional 6 months' for mitigation, leaving 18 months' imprisonment.  On Counts 4 and 5, on each of them, 2 months' imprisonment, concurrent with each other, but consecutive to Count 1.  On Counts 6, 7 and 8, those are the assaults at the police station, 2 months' imprisonment, concurrent on each but consecutive to the other counts, and on Count 9, the cannabis, 1 month's imprisonment, but that must be consecutive.  So that makes a total of 23 months' imprisonment on that Indictment.  On the Third Indictment, the larceny/shoplifting offence, we impose 1 month's imprisonment but that is consecutive.  So the total sentence in your case is 2 years' imprisonment. 

11.      The question then is whether we can possible suspend that.  This has given rise to considerable discussion in the Court and the Court is not unanimous.  Two Jurats feel that what you did on these various offences cannot justify suspending the sentence.  They feel that you must be punished for serious offending and you must be punished by way of an immediate custodial sentence.  But four of the Jurats take the view that this can be regarded as a truly exceptional case and that, as an act purely of mercy, they are willing to suspend the sentence; and the main reason for that is that you are looking after your father on a full time basis at the moment and if you did not, this would have a very significant adverse effect on all the other members of the family, including in particular your father, and the Court feels that in this final period of his life, it would penalise him as well as you to sentence you to immediate imprisonment.  But this decision is not to be taken as any form of precedent, either as to the level of sentence which we are passing on you, or as to the suspension.  This is a decision very much on the very special and unique facts of this case.  So the sentence of the Court by a majority is that in total there is a sentence of 2 years' imprisonment, suspended for 2 years. 

12.      We do also impose the suspended Supervision Order at the same time because we believe that you will benefit from continued involvement with the Probation Service.  We have to explain that that is comparatively limited, but we hope very much you will continue to seek their assistance and in particular, as you have asserted through your Advocate, you will continue to work with the Drug and Alcohol Service on a voluntary basis with a view to conquering your drug habit, because if you do not, we fear that you will be back here again.  We discharge the Probation Order and we make a Compensation Order of £18.99 with a default sentence of 1 week's imprisonment.  We also give a period of 7 days in which to pay the Compensation Order of £18.99, otherwise the default sentence will be activated. 

13.      I should add that if you commit any other imprisonable offence within the 2-year period of suspension, then you will be liable not only to be punished for that, whatever that new offence is, but the 2 years' imprisonment that we are passing now would be activated so, in other words, you may face serving a prison sentence of 2½ to 3 years' at that stage, namely 2 years' plus whatever you are sentenced to at that time.  Do you understand? 

14.      As to an Exclusion Order we think this would help.  We think that drink has played a part in some of your difficulties and indeed we are going to increase the period to one of 2 years.  So we make an Exclusion Order in the terms moved for by the Crown, but for 2 years rather than 18 months, that means you must not go into any of the premises, so that is any 1^st, 2^nd, 4^th, 5^th, and 7^th category premises other than the listed ones.  Do you understand?  If you go in there, then that will be breaching the Exclusion Order and you can then be punished for that. 

15.      We also order the forfeiture and destruction of the drugs.  Can we repeat again that you have been very fortunate, it is an exceptional case and if you do come back there can only be one answer to what happens to you then. 

Authorities

AG-v-Glowenkowski and Kujawski [2015] JRC 056. 

AG-v-Mildren and Le Clercq [2016] JRC 134. 

Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 (extract). 

AG-v-O'Neill [2009] JRC 118. 

Harrison-v-AG [2004] JLR 111 (extract). 

AG-v-Mears [2008] JRC 217. 

AG-v-Le Geyt [2012] JRC 178. 

AG-v-Capuano [2013] JRC 084. 

AG-v-Binnie [2011] JRC 112. 

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