Jersey Unreported Judgments

Superior Number Sentencing - Grave and criminal assault - larceny

[2020]JRC091

Royal Court

(Samedi)

27 May 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge ,Christensen and Austin-Vautier

The Attorney General

-v-

James Christopher Power

Sentencing by the Superior Number of the Royal Court, following conviction at Assize trial to Count 1 on the Indictment and a guilty plea to Count 2 on the Indictment on the following charges:

1 count of:	Grave and criminal assault (Count 1)
1 count of:	Larceny (Count 2)

Age:  34. 

Plea: Not guilty to Count 1.  Guilty to Count 2.

Details of Offence:

The defendant and victim were known to each other.  The defendant visited the victim at his home.  The defendant knew the victim collected his prescription medication on a Friday.  The victim kept medication in a distinctive zip up bag.

 

During the afternoon and again in the evening the defendant visited the victim.  The two men consumed alcohol, cannabis and some of the medication.  The defendant had attended on the victim on the expectation that he would receive drugs from the victim.

 

The victim had recently purchased a 'bowie' style knife with a 10cm long blade that came in a leather sheath.  The knife was on the table in front of where the two men were sitting side by side on the sofa.

 

Late in the evening the men started to argue.  The defendant picked up the knife, removed it from the sheath and thrusted the knife out in front of him.  The victim warned him to be careful as "not a toy".

 

The victim rolled back on the sofa to avoid the knife.  The defendant then stabbed him in the rear of left and right thighs.  The victim put his left arm up to protect himself and defendant stabbed him causing a cut to left forearm. (Count 1)

 

The defendant stood over the victim and threatened to "plug him" if he did not give up his medication.  The defendant picked up the bag and left (Count 2).  As he did he threatened that the victim would be killed if he "grassed".

 

The defendant buried the knife in Howard Davis Park and took the medication leaving the bag and packaging in dustbin.

 

Injuries to victim required sutures.  There was extensive blood loss.  Extensive bruising and swelling to the injury to the right thigh.

 

The defendant denied that the victim had any injuries when he left the flat.  He claimed he acted in self-defence or that victim self-inflicted the injuries.  Initially he denied taking the bag/medication. He gave information to police as to the location of knife.

 

At trial the defendant maintained he acted in self -defence but was unable to give any account how injuries sustained in a struggle.  Opinion of Home Office Forensic Pathologist was that injuries consistent with victim's account.

 

Jury found defendant unanimously guilty of Count 1

Details of Mitigation:

The Crown described Count 1 as a vicious and unprovoked assault which was alcohol and drugs fuelled.  It was a deliberate assault.  The defendant wanted to take the victim's medication and was prepared to use violence to achieve.  Application of the Harrison v AG factors.  The defendant had two previous convictions in which he had used a knife to get what he wanted.  No mitigation for the offence.  No personal mitigation.  Assessed as being of danger to the public.  No remorse or regret: maintained acted in self-defence.  Appalling criminal record.

 

Had been given warning by the Court on two previous occasions at risk of receiving sentence of preventive detention under Article 2(2) of the Criminal Justice (Jersey) Law 1957.

 

Crown had given anxious consideration whether to invite the Court to impose such a sentence.  Having reviewed development of equivalent punishment under Law of England & Wales decided on this occasion against making such an invitation.

 

Starting point 7 years imprisonment on Count 1.  Crown concluded should be uplift of 12 months on sentence to reflect public safety.  Guilty plea for Count 2: concurrent sentence proposed.

 

According to the Defence, the defendant maintained he acted in self-defence.  Accepted little by way of mitigation save that he co-operated with police to locate knife.  Comparison of facts with AG v Bennett: highlight similarities.  Crown's uplift not supported by authority.  Defendant had worse record but injuries less serious: an injury in Bennett was life threatening.

 

Crown not inviting Court to impose sentence of preventive detention: Court could not impose of own volition as Article 2(4) not complied with: no assessment of mental/physical health as to suitability of such a sentence

Previous Convictions:

26 convictions for 80 offences including 2 offences against the person, 1 offensive weapon, 7 drug related offences and 41 offences of theft and related offences of dishonesty.

Conclusions:

Count 1:	Starting point 7 years imprisonment.   8 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total:  8 years' imprisonment. 

Sentence and Observations of Court:

Count 1:	6 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Total:  6 years' imprisonment. 

J. C. Gollop Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for one count of grave and criminal assault and one count of larceny.  The assault took place in the home of the victim from whom the defendant was apparently expecting to receive drugs.  Both had consumed alcohol and drugs and late in the evening they started to argue.  During that argument the defendant picked up a knife belonging to the victim and assaulted the victim with it causing three stabs wounds to his forearm, left thigh and right thigh together with bruising and swelling.  The defendant then left taking the victim's prescription bag with him which contained the victim's medication.  The defendant denied the assault maintaining he was acting in self-defence but this was clearly rejected by the jury who found him guilty following an Assize trial. 

2.        The defendant has an appalling record with a total of twenty six convictions for a total of eighty offences.  His offences include two against the person, one offensive weapon offence, forty one offences of theft and seven drug related offences.  He has apparently never completed a community based order without breaching it.  He has been warned twice by the Court in 2014 and 2016 of the possibility of a preventative sentence being imposed under Article 2(2) of the Criminal Justice (Jersey) Law 1957 ("the 1957 Law"). 

3.        The defendant does not express any empathy towards the victim or any remorse for what he has done, still maintaining that he was acting in self-defence.  He is assessed at a high risk of reconviction and of posing a risk to others.  As the Court said in AG v Lawlor [2009] JRC 150 it takes a serious view assaults with a knife where it is often a matter of chance whether serious injury if not worse may result.

4.        The prosecution have referred us to the leading case of Harrison v AG [2004] JLR 111 and the factors to be applied.  With one exception we agree with the prosecution that:

(i)        This was a deliberate attack on an innocent man with blows deliberately aimed at the victim. 

(ii)       The defendant was at all times the aggressor.  However, we disagree with the prosecution that this assault was carried out in cold blood and agree with the defence that this was an alcohol fuelled assault. 

(iii)      The blows were struck with sufficient force to penetrate the thick fabric of the victim's combat trainers causing long lacerations which penetrated the fat layer of the skin and rupturing blood vessels in the right thigh.  The injuries were not life threatening but they were serious.

(iv)      The defendant used the victim's "bowie" style knife as the weapon.

(v)       There was forethought and deliberation in his actions.

(vi)      The suddenness of the assault gave the victim little time to defend himself.

(vii)     The victim offered no provocation.

(viii)    The defendant, as we have said, has an appalling and relevant record.

5.        The prosecution also referred us to the case of AG v Bennett [2014] JRC 215 which involved facts not dissimilar to this case, but where one of the stabbings was more serious.  In that case the Court took 6 years as the starting point, as against 7 years moved for by the prosecution, describing the offence as having been committed in alcohol fuelled anger rather than cold blood. 

6.        The prosecution describe the offence in the case before us, as we have said as a cold blooded and deliberate attack; the motivation it says being taking the victim's prescription bag. In the circumstances the prosecution say that 7 years is the correct starting point having taken into account all of the relevant circumstance.  However, and without any authority, the prosecution further submit that the sentence should be increased to 8 years so as to include an element of protection for the public who, they say, are entitled to be protected from individuals who repeatedly disobey the law and who pose a significant risk to the public.  The prosecution point to the two warnings that had already been given to the defendant of the possible imposition of such a sentence. 

7.        However, the prosecution does not seek a preventative sentence in lieu to be imposed under the 1957 law.  This is because the equivalent statutory power in England has been abolished and when it was used it was apparently subject to criticism, although we have not seen that criticism.  In England, the power has been replaced by extended sentences for dangerous offenders pursuant to the Criminal Justice Act 2003, as opposed to a sentence in lieu.  As matters currently stand Article 2(2) of the 1957 Law contains no provisions for review should a defendant cease to be classified as a danger to the public, which the prosecution say could give rise to human rights considerations.  As Advocate Jones has in any event pointed out, Article 2(4) of the 1957 Law requires that "Before sentencing any offender to corrective training or preventive detention, the court shall cause enquiry to be made as to the physical and mental condition of the offender and the offender's suitability for such a sentence".   That has not been undertaken in this case and so the Court would be unable to impose such a sentence even if it was minded to do so. 

8.        The prosecution has produced no authority for the proposition that a sentence properly arrived at after taking into consideration all of the relevant factors, including a defendant's record, can be further extended in order to protect the public without recourse to the 1957 Law and we are not persuaded that it would be appropriate in principle for the Court to do so without being addressed more fully on the issue.  We think the current situation is very unsatisfactory with the Court having given two warnings to the defendant of the possible imposition of a preventative sentence which it might ultimately be reluctant to impose for the reasons just stated.  Giving such warnings risks undermining the standing of the Court and we invite the authorities therefore to review the legislation. 

9.        Having considered all the matters put forward to the Court we agree with the defence that 6 years is the correct starting point for the grave and criminal assault and in terms of mitigation we however agree with the prosecution that despite what Advocate Jones has said there is no mitigation available to the defendant in this case. 

10.      On Count 1 you are sentenced to 6 years' imprisonment and on Count 2 to 2 years' imprisonment, concurrent making a total of 6 years' imprisonment. 

Authorities

Criminal Justice (Jersey) Law 1957. 

AG v Lawlor [2009] JRC 150. 

Harrison v AG [2004] JLR 111. 

AG v Bennett [2014] JRC 215. 

AG v Power and Oliver [2014] JRC 009. 

AG v Power [2016] JRC 229

AG v Moreira [2007] JRC 225