Jersey Unreported Judgments

2000/134

8 pages

 

                                                         COURT OF APPEAL.

 

14^th July, 2000.

 

 

Before: The Hon. M.J. Beloff, Q.C., President,

                                                         de V. G. Carey, Esq., Bailiff of Guernsey; and

                                                         C.S.C.S. Clarke, Esq., Q.C.

 

Jason Robert Mallet

-v-

The Attorney General.

 

Application for leave to appeal against a total sentence of 4½ years' imprisonment passed on 24th May, 2000, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 4^th May, 2000, following a guilty plea to the following counts:

 

First Indictment:

1 count of  larceny (count 1), on which count a sentence of 1 month's imprisonment was passed;

1 count of  resisting police officers in the execution of their duty (count 2), on which count a sentence of 2 months' imprisonment, concurrent, was passed;

1 count of  breaking and entry and larceny (count 3), on which count a sentence of 6 months' imprisonment, concurrent, was passed.

 

Second Indictment:

2 counts of grave and criminal assault:

count 1, on which count a sentence of 15 months' imprisonment was passed;

count 2, on which count a sentence of 4 years' imprisonment , concurrent, was passed.

 

The sentences passed on the first Indictment to follow consecutively the sentences passed on the second Indictment.

 

Application for leave to appeal placed direct before the plenary Court without being first submitted to a Single Judge in Chambers for determination without a hearing.

 

Advocate C.R.G. Deacon. for the Appellant;

C.E. Whelan, Esq., Crown Advocate.

 

 

JUDGMENT.

 

CAREY, J.A:

 

1.            This is the judgment of the Court on an original application for leave to appeal against sentence by Jason Robert Mallet, made direct to the Plenary Court.

 

2.            The circumstances of the offence can be briefly stated.  The Applicant who had been abusing alcohol and drugs lodged in a flat with two others.  On the day in question two other men stayed the night at the flat.  One of these was the victim Mr McGurck.  At about 2 am in the morning in the room occupied by Mr McGurck (which was not his own) the Applicant punched the victim, who was naked, about the head and body and went on to hit him with a hair dryer.  Mr McGurck later went outside still naked.  The Applicant dressed, picked up a carving knife and stabbed the victim who then fell to the ground.  A number of further blows were struck.  According to the Doctor, the victim finished up with 10 wounds, 3 of which were 2 cm deep.  Happily he was not caused any long-term harm.  The Applicant claimed the original attack resulted from a homosexual advance by the victim, and the Crown accepted that there was an element of provocation.

 

3.            The total sentences imposed were four years and six months' imprisonment as opposed to three years and ten months sought in the conclusions.  Although the Applicant is asking for all the sentences imposed to be reviewed by this Court his real complaint is in respect of four years' imprisonment imposed on Count 2 of the second indictment which contrasts with the two years nine months referred to in the conclusions.

 

4.            It is worth noting straightaway that the decision of the Court to depart from the conclusions followed a decision of the Inferior Number, before which the case had originally been considered, to pass it up to the Superior Number, as it was felt by the Inferior Number that its sentencing power (maximum a total of four years on any one occasion) might be inadequate.  The Deputy Bailiff delivered a very full explanation of the basis for the sentences the Court was going to impose and it is clear that the Court felt it was appropriate to review upwards the level of penalty for this kind of offence.

 

5.            The Superior Number went back to review various previous sentences handed down for grave and criminal assault and in particular its decision in A.G. -v- Norris (3rd June, 1992) Jersey Unreported where the Court recognised the principles of sentencing practice in England as being sufficiently close to those in Jersey to justify having proper regard to them.  The Court then went on to say that in cases of the gravity of Norris a proper benchmark was between 3 and 5 years.  This benchmark appears to have been uplifted from page 94 of Thomas: Principles of Sentencing (1979) (2^nd Ed'n).  This Court agrees with the conclusions of the learned Deputy Bailiff, and the Jurats in paragraphs 6 to 20 of his Judgment.

 

6.            The difficulty that faced the Superior Number was that this Court, differently composed, had - as the Deputy Bailiff pointed out - both in Norris -v- A.G. (28 September, 1992) Jersey Unreported CofA and in Evans and Phillips -v- A.G. (1997) JLR 94 CofA adopted the reasoning in Norris and the Deputy Bailiff had to be sensitive to this.  It is worth mentioning that the sentence appeal by Phillips, which seems to have been wholly without merit, appears to have been tacked on to what was a complex appeal against conviction by Evans and it is wholly understandable that the Court of Appeal may not have felt it necessary to explore the sentencing parameters for more serious cases, when it was solely concerned with an appeal against a sentence of 12 months.  Moreover no argument appears to have been addressed to the Court of Appeal in Evans as to the correct interpretation of Norris.  We respectfully suggest that the obiter dictum in Evans should no longer be followed.

 

7.            Without in any way wishing to detract from the validity of the present approach of the Royal Court and its reliance on Dr. Thomas' guidance we would, however, start by looking at the sentencing issues raised on this appeal from a different angle.

 

8.            In Jersey non-fatal offences against the person are divided into two categories only, namely that of assault and grave and criminal assault.

 

9.            The classic definition of this divide is to be found in directions given by Ereaut, D.B. in his summing up in A.G. -v- Vaughan in November, 1974:

 

"In Jersey law assaults can be of two kinds.  They can either be a common assault, which is the less serious of the two kinds of assault, or they can be a grave and criminal assault, which is, as its name implies, the more serious type of assault, and the only difference between them is one of degree.  For example, to slap a man in the face, perhaps even to punch him in the nose, and do no more than that, could be a common assault; but to kick a man repeatedly about the face or body with a booted foot or to use a weapon of any kind could be undoubtedly a grave and criminal assault.  Therefore, because a knife is a weapon which is capable of inflicting serious injury, an attack with a knife on a man with the intention of inflicting injury on that man can be a grave and criminal assault; and it is immaterial that no injury in fact results because perhaps the victim has managed to avoid being struck, either partly or completely."

 

10.        It follows that the offence of grave and criminal assault covers a number of offences that are categorised in other jurisdictions as woundings, grievous bodily harm and aggravated assault both with or without intent.

 

11.        It is clear from what has already been said that Jersey Courts gain assistance from English learning on criminal sentencing.  The Court accepts the point made by Advocate Whelan that in the years since this Court first had to consider the issue of a sentencing policy for Jersey Courts, Parliament has enacted a number of Criminal Justice Acts which have made the whole sentencing process in England a far more complicated one for judges and has further removed from them in many cases the breadth of discretion that they previously had enjoyed when coming to sentence offenders.  Any variations in sentences imposed in England which result from the Courts there adopting the new structures are not necessarily to be followed here because of the different statutory underpinning.  However with general sentencing for offences against the person we detect no such problems.  We accordingly feel it helpful to look at a more recent work than that of Dr Thomas, namely Blackstone: Criminal Practice (2000 Ed'n) (Section B).

 

12.        The first band of offences that come into the grave and criminal assault band are those amounting to assaults causing actual bodily harm and a study of paragraph B2.18 of Blackstone shows that generally these call for sentences in months rather than years.

 

13.        Next in the hierarchy of offences is wounding or inflicting grievous bodily harm without intent.  In England this offence attracts a maximum of five years.  The sentencing guidelines are set out in paragraph B2.33.  It is said that:

 

"sentences of up to three years for this offence have been upheld by the Court of Appeal where aggravating factors have been present or where the offence has been close to the borderline with the offence of wounding with intent; such sentences will be imposed where the assault was committed against a police officer or other public servant or against a child".

 

14.        However reference is then made by the writers to R. -v- Robertson [1998] 1 Cr.App.R(S) 21 where the English Court of Appeal noted that, in the light of earlier authorities, any sentence of more than two years' imprisonment for unlawful wounding required careful scrutiny to see if it was justified on the facts.

 

15.        The third band is that of wounding or causing grievous bodily harm with intent.  Again the sentencing guidelines are to be found in paragraph B2.39.  Here the maximum sentence is life imprisonment.  The writers say the following:-

 

"The normal sentencing bracket is in the range of three to eight years although sentences over eight years are upheld in particularly grave cases.  Relevant aggravating factors include the extent of the injuries, the degree of premeditation, racial motivation, use of a weapon, and kicking or stamping on the victim.  Mitigating factors such as a plea of guilty and the previous good character of the offender may be of little weight in very serious cases, but significant provocation is to be taken into account."

 

16.        The writers go on to review a number of cases, some of which illustrate the fact that the bracket of eight years is to be exceeded in serious cases.

 

17.        In practice this Court is asked to review only sentences imposed by the Superior Number of the Royal Court.  Cases involving sentences of less than three years are likely to remain within the jurisdiction of the Inferior Number, where appeals against sentence are only to the Superior Number, except where they are conjoined with appeals against conviction.

 

18.        The Court considers that the difficulty affecting this Court and the Royal Court in sentencing for offences of grave and criminal assault is the result of a too rigid interpretation of Dr. Thomas' "3 to 5" years band referred to on pages 94 and 95 in his book.

 

19.        The Court emphasises the desirability of any Court imposing a sentence identifying as a starting point the sentence it would have imposed on the basis that the defendant had pleaded not guilty, was not of good character and offered no excuse nor valid mitigation.  It will also be appropriate where there are a number of accused who have played different roles in the commission of the offence to make at this stage adjustments to starting points for each offender.  Based on what we have quoted from Blackstone it follows that the starting point in cases of grave and criminal assault where there is clearly an intent to cause serious harm should be up to eight years.

 

20.        We refer to "intent",  fully accepting that nowhere in the ingredients of the offence of grave and criminal assault is there any reference to the issue of "intent".  However when it comes to sentencing in respect of offences of grave and criminal assault falling within the upper band, that is to say cases involving imprisonment for more than three years we consider that it is essential in all but the most exceptional set of circumstances for the Court to establish whether the assault was or was not committed with intent which for obvious reasons bears on the degree of culpability of the Defendant to cause serious harm to the victim.  As one is concerned with offences against a person where higher penalties automatically come into play if the victim dies the sentencing Court is also entitled to look at the amount of damage caused to the victim.  However it is not possible to base sentencing in non fatal cases solely on the amount of damage caused to the victim, as it may be that a minor attack causes serious injury whereas a major attack fortuitously causes no lasting damage.

 

21.        Indeed Dr Thomas' "3 to 5" years is clearly stated as being applicable with cases involving "intent".  In establishing "intent" it may not necessarily be of assistance to rely on what the accused has to say on the matter as he is highly unlikely to say that he intended the damage caused to his victim.  What is needed is a careful evaluation of the details of the offence to establish whether the offender can be shown clearly to have intended serious harm to the victim.  The importance of this distinction is further highlighted in fatal cases as the offence is murder where there was an intent to cause really serious harm and manslaughter if there was not.

 

22.        However, from any starting point a number of allowances must be made.  The first allowance is the discount, which is required in every case where a defendant pleads guilty.  Clearly the amount of the discount will depend on the facts of every case.  In drug cases it has been said that where an accused is caught red handed with drugs in his hands or secreted internally he has no alternative but to plead guilty and cannot therefore expect such a large discount.  However whilst the facts of every grave and criminal assault case will differ, the circumstances will often be such that the way in which the evidence will come out at trial is not wholly predictable and neither the accused nor the victim will have a clear recollection of what happened.  In a small jurisdiction such as Jersey where resources are finite the Royal Court may well choose usefully to identify the amount of discount given in every case for the plea of guilty.  Further mitigation is to be found in the personal circumstances and record of the offender and whether or not there has been provocation, the degree to which the victim has been incapacitated, although that does not mean that there will necessarily be a lighter sentence solely because the victim has made a good recovery or fortuitously has not suffered the degree of injury that one would anticipate from the severity of the attack.

 

23.        In starting. its analysis in this way the Court is in no way wishing to depart from the principle that Jersey is a separate jurisdiction and is free to set its own sentencing levels as it saw fit "to meet the social and penological needs of the island", to use the words of the Attorney General in Campbell, Molloy & MacKenzie -v- A.G. (1995) JLR 140 CofA.  We agree with the dictum of Neill, J.A. in A.G. -v- Pagett (1984) JJ 64 which was quoted in that same judgment of Campbell.  We reiterate the point that the Superior Number of the Royal Court presided over by the Bailiff or Deputy Bailiff and by the majority of the Jurats of the day will be peculiarly aware of current attitudes in Jersey towards sentencing and will know in particular what sort of crimes are prevalent and for what crimes it is desirable and indeed necessary to retain a severe deterrent sentence.  However we go on to adopt the words of Bailhache, B. on page 141 of Campbell in rejecting the argument that this Court should give greater leeway to the Royal Court than might be appropriate for the Court of Appeal in England:-

 

"We agree that the views of the Royal Court are an important consideration for this Court to take into account in laying down sentencing guidelines.  Once those guidelines have been set, however, we consider that the system of judicial hierarchy requires that proper regard should be paid to them by the Royal Court in imposing sentence."

 

24.        As it will be clear from our earlier remarks, whilst it is not appropriate to advocate formally a layered tariff with the offence of grave and criminal assault it is quite clear from the English authorities that sentences for offences against a person are graded according to the particular offence in respect of which the sentence is being imposed.  We consider it will be of assistance to Jersey Courts if in assessing the seriousness of the offence they follow in general terms the English framework.

 

25.        We now return to the application for leave.

 

26.        Miss Deacon, in her comprehensive and helpful submission, raised the following points on behalf of the Applicant.

 

(i)      The Applicant had been the victim of a dramatic change in sentencing policy.  He had received a higher sentence than had hitherto been customary for offences of this kind.  She drew attention to the attitude of the Royal Court in A.G. -v- Hall (2^nd May, 1995) Jersey Unreported referred to in Whelan: Aspects of Sentencing in the Superior Courts of Jersey (May 1994-May 1995) Noter-Up page 36.  There the Court clearly showed some "interim" indulgence to an accused in a motor manslaughter case where it was felt appropriate to apply a general increase in penalty.

 

It was accordingly suggested that the Court was sensitive to the sense of grievance that the accused might have felt.

 

This is a difficult area.  Counsel were unable to draw our attention to any authority to support the view that as a matter of general principle Courts would only increase tariffs after due warning, and in our view that cannot be the law.  However certain situations call for a deferred approach, such as where a Court decides it is necessary as a matter of policy for a particular offence to be in future subject to a custodial rather than a non-custodial disposal.  However here warnings were given that review was needed to sentencing for grave and criminal assault albeit that they had not been implemented until the Court's judgment in this case.  We therefore reject this submission.

 

(ii)     The Applicant had not intended to harm the victim.  At first sight this troubled the Court as the Crown Advocate's case did not seem to us to clearly allege that this attack involved an intent to cause serious harm to the victim.  However on closer reading we are satisfied that the only sensible inference that can be drawn from the agreed facts of the prosecution outline is that such an intent was present.

 

We base this conclusion on the following excerpt from the prosecution summary:

 

"Thereafter, the matter entered a new phase.  Minutes elapsed and the accused had the opportunity to reflect and to calm down.  The heat of the moment had passed.  Instead, the accused who had thus far been wearing only underwear got up, dressed himself, deliberately armed himself with the knife, went outside and renewed the attack, this time using the knife.

 

The Crown has given particular consideration to this element of deliberation, the use and nature of the weapon and the question of the injuries.  The injuries, although comparatively superficial were extensive.  It is purely fortuitous that no greater damage was done; the victim was put at great risk by this sustained stabbing attack."

 

Mr Whelan told us that justification for this was to be found in a statement from the independent testimony of an eye witness.

 

(iii)    The Applicant was provoked and because he was intoxicated he reacted more strongly to provocation.  This is a different point to offering the excuse of intoxication for the commission of the offence.  However we do not consider it has any more validity.  It is accepted that the accused was provoked but the test involves the effect of provocation on the ordinary sober, reasonable, man.

 

(iv)    The guilty plea discount.  We agree that this was a case for a discount of one third.

 

(v)     The accused's health problem.  We accept that this is a matter we should take into account notwithstanding that it was not mentioned in the Court below.  However we do not consider that this brings the case into the ambit of enabling this Court "as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle to impose a lesser sentence than would otherwise be appropriate" to use the words of Rose LJ, in R. -v- Bernard (1997) 33 BMLR 23 for the reason, if no other, than that the circumstances of this case are not exceptional.

 

27.        We return to the first principles we have enunciated.  What would be the proper sentence taking into account the provocation if there had been a trial?  Having regard to all the circumstances we consider that a starting point in excess of five and a half years would be excessive.  With the discount for the guilty plea that would call for a sentence of three years and eight months.  With other mitigation we consider that the right sentence would have been three years and six months.  However that is not an end of the matter.  This Court is only to interfere with sentences if they are found to be manifestly excessive and in the normal way we could not find that that test was met.  However this is, we accept, an unusual case.  The Applicant was exposed to two hearings, one before the Inferior Number, and the second before the Superior Number.  He has not received any allowances for the extra stress and in those circumstances and in the light of the accepted sense of unfairness he may suffer we have concluded that we should allow the application and grant leave. 

 

28.        Furthermore we allow the appeal to the extent of substituting for the sentence of four years on the second count on the second indictment a sentence of three years six months.  The six months on the breaking and entering charge, clearly discounted under the totality principle, is entirely reasonable having regard to the damage done to the shop and the apparent success of the enterprise and the value of the goods.  Appeals against other sentences do not require separate consideration as they run concurrently.  Notwithstanding that fact the Court is satisfied there is nothing out of line or excessive in what was imposed.

Authorities

 

 

Fogg -v- A.G. (1991) JLR 31 CofA.

A.G. -v- Norris (3^rd June, 1992) Jersey Unreported.

Norris -v- A.G. (28^th September, 1992) Jersey Unreported CofA.

Evans & Phillips -v- A.G. (1997) JLR 94 CofA.

R. -v- Bernard [1997] 33 BMLR 23.

A.G. -v- Douglas (21^st December, 1999) Jersey Unreported.

Whelan:  Aspects of Sentencing in the Superior Courts of Jersey: (May 1995-1996)

               Noter Up: pp.15-16.

Ibid: (May 1996-1997) Noter Up: p.20.

Wass -v- A.G. (24^th July, 1995) Jersey Unreported.

A.G. -v- Ingham (9^th February, 1996) Jersey Unreported.

A.G. -v- Marella & 4 ors. (2^nd May, 1996) Jersey Unreported.

R. -v- Bruin [1996] 2 Cr.App.R.(S) 38.

R. -v- McGrath [1992] 13 Cr.App.R.(S) 83.

R. -v- Millard [1995] 16 Cr.App.R.(S) 763.

R. -v- McDonough [1998] 2 Cr.App.R.(S) 195.

R. -v- Ward [1998] 2 Cr.App.R.(S) 388.

Thomas: Principles of Sentencing (1979) (2^nd Ed'n).

Blackstone: Criminal Practice: (2000 Ed'n) (Section B).

R. -v- Robertson [1998] 1 Cr.App.R.(S) 21.

Campbell, Molloy and MacKenzie -v- A.G. (1995) JLR 136 at 140.

A.G. -v- Pagett (1984) JJ 64.

A.G. -v- Hall (2^nd May, 1995) Jersey Unreported.