Jersey Unreported Judgments

Superior Number Sentencing - Grave and criminal assault.

[2017]JRC047

Royal Court

(Samedi)

20 March 2017

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Nicolle, Olsen, Grime, Sparrow, Pitman and Christensen.

The Attorney General

-v-

Kamal Hussain

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 30^th December 2016, following a guilty plea to the following charge:

1 count of:

Grave and criminal assault (Count 2).

Age:  39.

Plea: Guilty

Details of Offence:

On 18^th April, 2016, the defendant and his companion were at the Kiosk Burger Bar and Bel Royal.  The companion left the table to meet the victim near one of the public shelters.  After the companion left the defendant sat at the table drinking from a bottle of white wine.  The defendant then stood up, drained the bottle, walked to the kerb and smashed the bottle leaving the shattered neck of the bottle in his hand. 

The defendant walked towards his companion and the victim and the victim extended his hand towards the defendant to shake hands and offered some words of greeting.  The victim also patted the defendant on the back.  The defendant then swung the broken bottle towards the victim and connected with the victim's neck (Count 2).  The victim ran away, not realising the extent of his injuries.  The defendant and his companion were heard to say "let's get the fuck away from here.  Here come the old bill."  Both fled the scene and took a taxi from Rue De Haut to the Great Union Inn. 

The defendant was arrested the following day at an address at Liberation Court. 

Details of Mitigation:

Guilty plea, references.

Previous Convictions:

23 convictions for 55 offences including grave and criminal assault and robbery. 

Conclusions:

Count 2:

Starting point 7½ years' imprisonment.  6½ years' imprisonment.

Sentence and Observations of Court:

The Court found that the defendant had significant mitigation allowing them to reduce the Crown's conclusions. 

Count 2:

Starting point 7½ years' imprisonment.  5 years' imprisonment.

D. S. Steenson, Esq., Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced with regard to a single count of grave and criminal assault.  We do not need to go into the detail - that has been set out fully by the Crown when it referred to the statement of facts before we adjourned.  Suffice to say that there was a history between you and the victim that arose, in part, out of your time together in prison.  You had been drinking and when the victim arrived at the scene your companion left the table you were both sitting at and went to speak to him.  You then stood, smashed the wine bottle from which you had been drinking, and approached the victim holding the neck of the wine bottle in your hand.  The victim in this case then made a gesture that on no reasonable analysis would have been interpreted as either threatening or aggressive, but perhaps because of the alcohol you had consumed and the history between you, you interpreted it to some measure in that way and you struck out at him, the broken part of the bottle connected with his neck.  The injuries were dramatic and they could have been life-threatening.  They were serious enough but, extremely fortunately, were not in fact a threat to his life. 

2.        We accept the Crown's characterisation of this assault against the factors set out in the case of AG-v-Harrison [2004] JLR 111 save that only one blow was struck and it was not in fact aimed at the neck, although you intended to make contact with your victim.  In particular and in addition we note the part that alcohol played in this particular event, it is not a mitigating factor if you assault someone when you are under the influence of alcohol, it is an aggravating factor.  We note particularly the victim in this case, notwithstanding the history between you, was not in any way the aggressor.  We note that you deliberately armed yourself with a broken bottle.  You simply could have walked away - you did not do so.  You did not need to approach him - you did so and it must have been a truly horrifying experience for those members of the public, including children, who witnessed it. 

3.        We also agree with the Crown's assessment of where this offending might fit in terms of seriousness within the Sentencing Council Assault Definitive Guidelines although, of course, those guidelines do not apply in Jersey and are of interest only. 

4.        We have of course read the social enquiry report and we note your guilty plea although we agree that it was hardly surprising that the Crown refused to accept early suggested basis for a guilty plea and it seems to us that you have clearly sought, over time, to minimise your culpability.  However, your plea of guilty has a real value and we give appropriate allowance for it. 

5.        We note the other mitigation available to you.  The references that have been provided on your behalf speak extremely highly of you and we note, with approval, the efforts that you have made to improve your life, the courses that you have taken and, most significantly from our perspective, the fact that you continue to be drug-free.  These factors mean that we think that we can reduce the conclusions of the Crown and sentence you to a lower level of imprisonment.  We think however that the Crown's assessment of the starting point is correct in this case, this was a very serious assault.  You armed yourself with a broken bottle and you put yourself in the position where such a thing could take place but we believe that you have significant mitigation available to you for which due allowance has not been made in the Crown's conclusions. 

6.        Taking all of that available mitigation into account, including the guilty plea but including the other matters to which we have made reference, you are sentenced to 5 years' imprisonment. 

Authorities

AG-v-Harrison [2004] JLR 111.

Sentencing Council Assault Definitive Guidelines.

AG-v-Farnon [2009] JRC 127.

AG-v-Mallett [2000] JLR 155.