Jersey Unreported Judgments

2001/118

ROYAL COURT

(Superior Number)

 

(exercising the appellate jurisdiction conferred

 

 upon it by Article 22 of the Court of Appeal (Jersey) Law, 1961).

23rd May, 2001.

 

 

Lawrence Carney McManus

-v-

Her Majesty's Attorney General.

Appeal of Lawrence Carney McManus against a sentence of 9 months' imprisonment passed on him by the Inferior Number of the Royal Court on 16th March, 2001, to which the appellant was remanded on 16th February, 2001, following a guilty plea to:

1 count of:

assault.

 

Leave to appeal was granted by the Bailiff on 4th April, 2001.

 

Advocate Mrs. S.A. Pearmain for the Appellant;

P. Matthews, Esq., Crown Advocate.

 

JUDGMENT

 

THE BAILIFF:

 

1.        This is an appeal by Lawrence Carney McManus against a sentence of 9 months' imprisonment imposed the Inferior Number for an offence of common assault.  The circumstances of the case are unusual and very sad.  Indeed as Mrs. Pearmain rightly said at the beginning of her submissions, any sentence pronounced by the Court is likely to be inadequate in one respect or another.  We have found this a very difficult case.

2.        In brief, the appellant and his victim were friends who had been drinking together in a public house.  Both were moderately intoxicated.  At some stage there was an argument following which the victim left the public house and walked away.  Intending to patch up the argument, the appellant followed the victim and caught up with him near the Arts Centre in Providence Street.  The argument continued, there was a certain amount of prodding at each other and according to one witness the victim appeared to be goading the appellant into hitting him.  The appellant struck the victim with a punch of moderate force to the chin.  The blow was sufficient to knock the victim backwards and as he fell he hit his head on a wall.  The victim was obviously badly injured and could only gurgle in response to questions.  The appellant immediately sought help from paramedics nearby.  The following day the appellant gave himself up at the police station.  In the meantime, the victim had been flown to a specialist hospital where a blood clot was removed from his brain.  His condition has now stabilised, but although no longer in a vegetative state he is unable to walk without assistance, has no effective movement in his arms, is virtually unable to speak and may be entirely blind.  He is fed artificially and is totally incontinent.  He will require constant nursing for the remainder of his life.  He is aged 48.  None of these appalling consequences for the victim was intended by the appellant.  There was a drunken argument, followed by a single blow which has, however, effectively destroyed the life of the victim and caused devastation to his family. 

3.        Mrs Pearmain, for the appellant, has submitted that the sentence of 9 months' imprisonment  was wrong in principle, or manifestly excessive. She has drawn attention to a number of authorities, suggesting that a sentence of community service may be appropriate for offences of violence of this kind.  None of the local authorities seems to us to be relevant to this appeal, but the English case of R-v-Coleman [1992] 13 Cr. App. R. (S) does provide some useful guidance.  Indeed, the Deputy Bailiff's Judgment in the court below makes it clear that the Inferior Number considered that the principles adopted in the English Court of Appeal in R-v-Coleman should be applied in Jersey.  In Coleman, the appellant pleaded guilty to manslaughter.  The facts of that case, very briefly, were that the appellant thought that two men were shouting abuse and obscenities at him and he went over towards them, confronted them and punched each one of them once in the face.  Both fell to the ground.  One of them tripped over a curb stone, fell backwards, fractured his scull and died shortly afterwards.  In delivering judgment, the Lord Chief Justice, Lord Lane referred to a dictum of Watkins LJ in another case involving similar facts.  Lord Justice Watkins said this:

"This court has been presented with this kind of problem on a number of occasions, namely what should be done when a man of good character, who just once in his life perhaps strikes out and knocks another man, so that he falls backwards and strikes his head on a curb stone and is killed.  If one were to look at the matter from the point of view of the victim and his family, the temptation would be to sentence a person responsible for such a thing to imprisonment for a number of years.  But this court has said that this is not the way to look at the matter.  Justice is not seen to be done in that way."

The Court reduced Coleman's sentence from 2 years to 12 months' imprisonment.

4.        This is not a case of manslaughter, but from the perspective of the victim and his family the consequences are arguably worse, for he has been condemned to what amounts to a living death.  It must not be forgotten that this state of affairs results from an unlawful act, that is to say a punch to the chin.  On the other side of the coin, the appellant has no previous convictions for violence and has expressed his great remorse for the unhappy consequences of this act.  As the Court indicated at the outset we have found this to be an exceedingly difficult case and the Court is not unanimous.  We think, however that there is a distinction to be drawn between this case and the English case of Coleman, to which we have referred, where the appellant had responded in anger to what he believed to be provocation before walking up to a stranger and striking the fatal blow.  Here, we have been told that the appellant left the public house, not with violence in mind, but with a view to patching up an argument with his friend.  Witnesses state that the result, however, was that the argument continued in the street and that some sort of a scuffle preceded the punch delivered by the appellant.  We have reached the conclusion that that factor, the absence of any real hostility towards the victim, was not given sufficient weight by the Inferior Number.  Having said that, the Court's view is, and in this respect we are in agreement with the Inferior Number, that the appalling injuries suffered by the victim, albeit not intended by the appellant, mean that the assault must be punished with imprisonment.  The appeal is allowed and we substitute for the sentence imposed below, a sentence of 6 months' imprisonment.      

 

 

 

 

 

 

 

 

 

 

 

 

Authorities

Anthony Neville Coleman [1992] 13 Cr.App.R.(S)

Gary Paul Ambrose [1997] 1 Cr.App.R.(S)

Community Service Orders: Tariff (1990) JLR.N.19.

Thomas:Current Sentencing Practice Paras D3 - 3A01-D3-3B01: Criteria for Use of Power of Community Service.

Paul McDermot (1984) 6 Cr.App.R.(S) 377

R-v-Heyfron (1980) 2 Cr.App.R.(S) 230

AG-v-Monet (5th January 2001) Jersey Unreported [2001/3A]

Blackstone Criminal Practice (2001 Ed'n):pp.170-183.

McCarthy (1995) 16 Cr.App.R (S) 1038.

AG-v-McManus (16th March 2001) Jersey Unreported; [2001/61].