Jersey Unreported Judgments

Inferior Number Sentencing - Grave and criminal assault.

[2019]JRC146

Royal Court

(Samedi)

26 July 2019

Before     :

Sir William Bailhache, Bailiff, and Jurats Ramsden and Austin-Vautier.

The Attorney General

-v-

Warren Ray Ashcroft

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:  33. 

Plea: Guilty. 

Details of Offence:

On Friday 14^th December, 2018, the victim attended a Christmas party at The Square, St Helier with work colleagues.  In the early hours of the morning he met a friend in Mimosa.  He went to the bar with his friend to purchase a drink.  Whilst queueing, the victim felt an impact and turned around to see the defendant. 

 

CCTV footage showed an unidentified female ("the female") standing between the victim and the defendant at the bar.  The Victim leant over and said: "Why the fuck did you push me" to the defendant.  The defendant told the victim to "drop it", but the victim continued to lean over and speak to the defendant, who moved away.  However, the defendant then suddenly leant forward and past the female, raising his right arm and struck the victim to the top right side of his head with a glass that he was holding in his hand.  It is accepted that the defendant did not "think about the glass" in his hand. 

 

The defendant then continued the assault by jumping on top of the victim after he had fallen to the floor. The defendant had to be physically pulled off the victim and removed from the premises by door staff.  He was later arrested.

 

The victim suffered cuts to his face, including a wound to his left forehead which required five sutures.  He also suffered bruising to his elbows.  Following the assault he suffered some psychological issues. 

Details of Mitigation:

Guilty plea, good references and employment history, remorse.

Previous Convictions:

Two convictions for six offences, and a caution for battery in 2004 and disorderly behaviour in 2015.

Conclusions:

Count 1:

21 months' 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 21 months from the date of his release from prison. 

Compensation Order sought in the sum of £1,923.35. 

Sentence and Observations of Court:

Count 1:

276 hours' Community Service Order, equivalent to 21 months' imprisonment with a 15 months' Probation Order.

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 12 months from today.

Compensation Order made in the sum of £1,923.35 or 6 months' imprisonment in default.  £1,500 to be paid within 2 weeks and the balance to be paid within 6 months. 

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

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE Bailiff

1.        You have pleaded guilty to an Indictment which contains one count of grave and criminal assault.  The circumstances were that in the Mimosa club the victim felt a hard impact on the rear of his left shoulder, as he described it, harder than he would expect in an accidental way, and when he turned around he saw you.  There was then an exchange at the bar between you and the victim.  The victim was abusive/aggressive towards you.  You told him to drop it, but he continued to lean over and speak to you.  You got the impression that he was leaning against your female friend who was standing between you.  You raised your right arm and struck the victim to the topside of his head with the glass that you were holding, and the Crown accepts that you did not think about the glass and you had forgotten that you were holding it.

2.        Following that assault you jumped on top of the victim after he had fallen to the floor and you had to be physically hauled off him and removed from the premises by door staff.  The victim had first aid treatment for lacerations to his face, he was taken to the hospital where he had later five stitches.

3.        The Court's policy in cases such as this is to send the defendant to prison.  That is because the Court recognises that once a person commits the offence of striking with a glass he is out of control as to what injuries might be sustained.  We cannot really do better than to emphasise the comments which were made by Sir Michael Birt as Bailiff in the case of AG v Viveiros [2014] JRC 162A where he said this at paragraph 6:

"We want to emphasise that the mere fact that a person forgets he is holding a glass if he tries to punch someone is not sufficient 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 it 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."

4.        The Court has applied that test in this case and therefore the first question we have asked ourselves is whether or not there was any provocation, because if there was not any provocation there is no question but that the custodial sentence should be imposed. 

5.        The Court is satisfied that there was some provocation here in the sense that there was abuse and the female friend standing between you and the victim was apparently pushed.  So we have considered whether that is sufficient to avoid a custodial sentence.  In considering that, one of the difficulties that we have had to consider as well is the impact of this assault on the victim.  We are sure you have had the opportunity of reading the victim's personal statement and when you read that statement it is quite apparent that whatever impact these proceedings are having on you, the impact on him is considerably worse, and we have very anxiously taken that into account in considering what sentence we ought to impose.  Victims are entitled to expect from the Court that defendants will be treated appropriately as indeed is the public.

6.        In the event, we have decided that the circumstances are sufficiently exceptional that we can avoid a custodial sentence in this case.  We have had regard to the inadvertent use of the glass of course, but we also had regard to your remorse and we accept that you are generally ashamed of what you have done.  We have accepted that there is something in the psychological report which is not usually available in cases of this kind, and of course you have pleaded guilty early and have a good employment record and some very good references, and all the things that have been mentioned by your counsel in the mitigation speech which he has made.

7.        It is with a great deal of hesitation that we are avoiding a custodial sentence, and having regard to all that mitigation we think the Crown was right in terms of the sentence which should have been moved for which was 21 months' imprisonment.  But we are going to impose the alternative to that custodial sentence which you will serve as it were in the community and therefore we sentence you to 276 hours' Community Service.  If you do not perform that Community Service or there is any difficulty with it you are liable to be brought back to the Court, you would be sentenced to 21 months' imprisonment for this offence.  We are also going to place you on 15 months' Probation and likewise if you breach the terms of the Probation Order you can be brought back and sentenced again. 

8.        We are going to impose a 12 month Exclusion Order as from today.  That means, other than such as is necessary for the purposes of your employment, that you must not go into any 1^st, 2^nd, 4^th, 5^th or 7^th category licensed premises excluding the Multiplex Cinema, Jersey Airport or the ferry terminal at Elizabeth Harbour for a period of 12 months from today.  If you were to breach that order that itself is an offence.

9.        Finally, we come to compensation, and having regard to the circumstances put before us we are going to order you to pay compensation to the victim in the sum of £1,923.35.  £1,500 is to be paid within 2 weeks and the balance is to be paid within 6 months, and there will be a default sentence of 6 months' imprisonment if the compensation is not paid.

10.      You can consider yourself very lucky. 

Authorities

AG v Viveiros [2014] JRC 162A. 

AG v Saville [2007] JRC 110. 

AG v Cameron [2016] JRC 107. 

AG v Murray [2019] JRC 116. 

Criminal Justice (Compensation Orders) (Jersey) Law 1994. 

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