Jersey Unreported Judgments

Inferior Number Sentencing - assault - grave and criminal assault - violently resisting a police officer - resisting arrest.

[2011]JRC236A

Royal Court

(Samedi)

15 December 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Olsen.

The Attorney General

-v-

Keiligh Jerard Botting

Steven James Vincent

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Keiligh Jerard Botting

First Indictment

1 count of:	Assault (Count 1).
1 count of:	Grave and criminal assault (Count 4).
1 count of:	Violently resisting a police officer in the execution of his duty (Count 5).

Age:  19.

Plea: Guilty.

Details of Offence:

Botting was in a group with his older brother and others, all of whom had consumed substantial quantities of alcohol.  A passing motorist was stopped and then assaulted through his driver's side window by being punched to the face a number of times both by Botting and his older brother.  The older brother was dealt with at the Magistrate's Court.  The assault was unprovoked and the victim was not in a position to defend himself.  Injuries sustained consisted of lacerations and bruising.  The defendant offered no explanation other than he had been drunk (Count 1). 

Vincent had been at home celebrating his birthday and had been drinking throughout the day and was intoxicated.  A confrontation occurred with his younger sister and he grabbed her and pulled her by the neck and then pinned her against a mattress which was leaning against the wall.  He held her by the throat before punching her forcefully to the left side of her face.  The police were called and Vincent violently resisted arrest.  When interviewed he denied assaulting his sister (Counts 2 and 3). 

Botting committed an unprovoked grave and criminal assault upon the 20 year old male victim who suffered from autism and had other learning difficulties which matters were known to Botting as they had known each other since childhood.  Forceful punches were struck knocking the victim to the ground on two occasions followed by a further seven punches.  As the victim tried to escape from Botting he was then separately assaulted by Vincent who punched him forcibly to the right ear.  When the police attended and sought to arrest both men Botting resisted.  Both Botting and Vincent had been drinking prior to the assault (Counts 4 and 5 and Count 1). 

Botting made admissions in interview as to the grave and criminal assault and expressed remorse.  Vincent initially denied any involvement but he had made admissions of hitting the victim on his Facebook page and in a subsequent interview he admitted that he had punched the victim once.  The victim was vulnerable because of his learning difficulties etc, but also vulnerable in the sense of Vincent having witnessed the assault of Botting upon him and then committed a further assault. 

The Crown's view was that the actions of the two defendants was nothing short of drunken thuggery.  The Crown, after very careful consideration, took the view that none of the criteria in Article 4 of the Young Offenders Law was satisfied and that the appropriate sentence on this occasion was non-custodial sentences albeit it was made plain that this was very much as a last chance for both defendants to avoid an immediate custodial sentence. 

The victim of the grave and criminal assault/assault suffered bruising and abrasions, a deviated septum (broken nose) and a loss of hearing to the right ear.  At the time of sentencing both the injury to the nose and hearing were still under investigation/treatment.  There had been a significant impact upon the victim.  He had been suffering anxiety, nightmares and frightened of being alone. 

Details of Mitigation:

The Crown

The Crown had regard to the relevant factors in the case of Harrison-v-AG [2004] JLR 111.  Botting had the benefit of his guilty plea entered on an early occasion and his co-operation with the police.  Still a young offender.  Not of previous good character having eight convictions for a total of eighteen offences including previous for common assault, assault on police and resisting arrest.  The social enquiry report revealed personal difficulties in his background.  He had spent the equivalent of over 4 months on remand in youth detention.  The Crown took the view that totality of sentencing warranted concurrent sentencing.  Botting had breached bail by failing to sign on the correct date and time, breach of curfew and minor re-offence. 

Defence

Age and personal difficulties emphasised; had an unsettled background; had the maturity of a 14 year old.  Alcohol abuse needed to be addressed; had a difficult start in life; some evidence of progress being made; remorse; guilty plea; time on remand.  Defendant supported non-custodial conclusions. 

Previous Convictions:

Eight convictions for a total of eighteen offences including common assault, assault on police, resisting arrest, TADA, larceny of dwelling, breaking and entry, malicious damage, driving without a licence, illegal entry/breaking and entry. 

Conclusions:

First Indictment

Count 1:	40 hours' Community Service Order, (or 1 week's youth detention in default) and a 12 month Probation Order.
Count 4:	180 hours' Community Service Order (or 12 months' youth detention in default) and a 12 month Probation Order, concurrent.
Count 5:	40 hours' Community Service Order (or 1 week's youth detention in default) and a 12 month Probation Order, concurrent.

Total:  180 hours' Community Service Order and a 12 month Probation Order.

Exclusion Order sought for a period of 6 months from all licensed premises save for 6^th category premises selling food.

Sentence and Observations of Court:

Both defendants to be sentenced for serious assaults and for resisting arrest and in each case the offences were fuelled by alcohol and all but one offence was in public.  Botting has firstly committed an unprovoked assault on a Portuguese male by punching him through the open driver's side window of his car. 

Potential element of racism which he had denied, but the circumstances are such that the consequences of the assault could have been serious as the man could have lost control of his car.  The grave and criminal assault was a very serious assault.  Botting had set upon a man who he had known to be vulnerable due to his autism etc.  The victim has suffered a broken nose and other injuries.  The Court had regard to the victim impact statement and had noted the adverse affect that the assault had had upon him. 

The assault charges committed by Vincent were also serious and included pushing his younger sister against a mattress and her to the face.  The second assault was on the vulnerable person who Vincent had just witnessed being assaulted by Botting.  The Court's well established policy was that normally for drink fuelled violence an immediate custodial sentence was appropriate.  The Court had retired for some considerable time and had considered whether there was a reason why the Court's normal policy should not be followed. 

The Court had taken into account that both defendants were 19 and 18 respectively and the law required the Court to look to see whether there was any alternative means of disposing before being sentenced to custody. 

Botting

The Court knew that Botting has had a hard time.  He had not had a chance to get help from probation. The Court was going to give him that chance.  The Court gave him a clear message that he was to take advantage of the help offered by probation.  The system will always win and it is the defendant who will suffer the most.  This was going to be his chance. 

The Court agreed that the Crown's conclusions were correct.  Both defendants were given a clear warning that they must obey everything that they were told to do by probation and they must comply with the Community Service Order.  If they did not they would be brought back and they should expect to go to custody.  This was the defendants' chance and they were to learn from it. 

Conclusions granted.

Steven James Vincent

First Indictment

1 count of:	Assault (Count 2).
1 count of:	Violently resisting a police officer in the execution of his duty (Count 3).

Second Indictment

1 count of:

Assault (Count 1).

Age:  18.

Plea: Guilty.

Details of Offence:

See Botting above.

Details of Mitigation:

The Crown

Guilty plea.  Did eventually make admissions.  Still only 18 therefore youth was a mitigating factor.  Did not have the benefit of good character, having three convictions for nine offences including assault on the police and common assault.  Social enquiry report also revealed a number of personal difficulties. 

The Defence

Offences were not pre-meditated.  Regrets action and apologised to the Court.  Credit for guilty plea and age; willing and able to undertake non-custodial sentencing options.  Time on remand had allowed him to reflect on offending; not pleased to be in custody; was motivated to find work and to distance himself from negative influences.  Would benefit from a Probation Order.  Letters of apology/reference handed up. 

Previous Convictions:

Three convictions for nine offences including assault on police, escaping from lawful custody, obstruction, larceny, breaking and entry, shoplifting and common assault. 

Conclusions:

First Indictment

Count 2:	120 hours' Community Service Order, (or 6 months' youth detention in default) and a 12 month Probation Order.
Count 3:	40 hours' Community Service Order, (or 1 week's youth detention in default) and a 12 month Probation Order, concurrent.

Second Indictment

Count 1:

120 hours' Community Service Order, (or 6 months' youth detention in default) and a 12 month Probation Order, concurrent to the First Indictment.

Total:  120 hours' Community Service Order and a 12 month Probation Order.

Exclusion Order sought for a period of 6 months from all licensed premises save for 6^th category premises selling food.

Sentence and Observations of Court:

See Botting above.

Vincent

Much the same applied to this defendant.  To assault one sister was bad news and the Court understood the family background but he had to get past it.  Once again it was in his hands.  It was his choice.  The Court felt able to avoid custody on this occasion. 

The Court agreed that the Crown's conclusions were correct.  Both defendants were given a clear warning that they must obey everything that they were told to do by probation and they must comply with the Community Service Order.  If they did not they would be brought back and they should expect to go to custody.  This was the defendants' chance and they were to learn from it. 

Conclusions granted.

Ms E. L. Hollywood, Crown Advocate.

Advocate C. R. Baglin for Botting.

Advocate J. W. R. Bell for Vincent.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are both here to be sentenced for some serious assaults and for resisting arrest.  In each case the offences were fuelled by drink.  All except one of the assaults took place in a public place. 

2.        Mr Botting, you are to be sentenced for an unprovoked attack on a Portuguese man whom you punched through the window of a car as he was driving.  There is an element, although you deny it, of racism in the assault, which makes it more serious.  The offence could have had really bad results; the victim was driving, he could have lost control of the car and it could have seriously injured somebody.  The second offence was more serious, a grave and criminal assault is a very serious criminal offence.  You set on a man whom you knew to be a vulnerable man, and for no good reason you punched him several times, breaking his nose and causing him other injuries.  You have had read to you the personal victim impact statement which has been made by your victim's foster carer and so you know what a bad effect this assault has had on him. 

3.        Mr Vincent, although you have no grave and criminal assault for which you are to be sentenced, the assault charges which you face are also serious.  You assaulted a woman, your sister.  For no reason you put her by the neck and pinned her against a mattress before punching her forcefully to the face.  The second assault, on Mr Botting's victim, whom you knew to be vulnerable because your co-accused had just assaulted him, you set on him. 

4.        Now the Court has said many times that mindless drink-fuelled violence will normally result in a custodial sentence and we have been out for such a long time considering what is the right sentence for you both because that is the Court's usual policy.  We have had to take into account the fact that you are aged 19 and 18 respectively, and therefore we are required to be satisfied that there is no other way of sentencing you before we impose a custodial sentence.  And you have both heard what I have said to your counsel as the speeches were being made in your favour. 

5.        Mr Botting, I think the Court knows that you have had a bad time of things in your life so far.  We know that you have not yet had a chance to get help from the probation service with a Probation Order and we are going to give you that chance.  We are going to give it to you because you have a choice in your life; you can either carry on committing offences and things will get worse and worse and you will spend longer and longer in prison.  And so what you need to do is take advantage of what the probation service have to offer you, because if you do not do so the system is always going to win, the system will always beat you and it will be you who suffers most.  It is your choice. 

6.        Mr Vincent, you will have heard what I have said to Mr Botting.  You assaulted your sister; it is bad news when families fall out and I think the Court understands what has happened in your family and what tensions, what stresses that can cause, but you have got to get past that.  You have to get past it because otherwise you face exactly the same problems that Mr Botting does; things will get worse and it is your life that is at stake and it is in your hands; nobody else can make those choices for you, it is your choice.  We are going to avoid custody for you as well. 

7.        I say to both of you, you have come within a whisker of going to youth detention.  We are going to grant the conclusions of the Crown and it follows that, Mr Botting for the offences which you have committed, on Count 1; you will be placed on probation for 12 months and you will be sentenced to 40 hours' community service, on Count 4; 12 month's probation and 180 hours' community service and Count 5; 12 months' probation and 40 hours' community service, which will be performed concurrently. 

8.        Let me just tell you what that means.  You must obey everything which the probation officers tells you to do so you have to go on the courses which are planned for you by probation; you must attend them; it is not good enough to say I forgot; it is not good enough to be disorganised.  This is a Court Order.  You must do the community service; so when you are told to turn up for community service at ten o'clock on Saturday morning or whatever time it is, you must turn up.  If you do not you will be brought back to Court and you will be very likely sentenced to youth detention and put in custody.  The sentence that you have been given is a total of 180 hours' community service; as you are not working at the moment there is no reason why you should not get on with that and get large chunks of it done as quickly as possible.  For both of you, as soon as you can get a job the better because it is a job that is going to help you stay out of trouble.  If you do not, Mr Botting, do your community service you are liable, we would have been looking at 12 months' youth custody instead.  You will also have an Exclusion Order and that means that you must stay out of any premises which sell alcohol, except 6^th category licensed premises so supermarkets and off-licences which sell alcohol, you are allowed into those but any other form of licensed premises you must stay out of for a period of 6 months. 

9.        Mr Vincent, you are sentenced to 12 months' probation on Count 2 and 120 hours' community service or 6 months' youth detention is the sentence we would have been looking at, on Count 3; 12 months' probation and 40 hours' community service or 1 week's youth detention concurrent we would have been looking at, and on the Second Indictment, 12 months' probation and 120 hours' community service or 6 months' youth detention in default, again concurrent.  So the total for you is 12 months' probation and 120 hours' community service and as I say we would have been looking at a youth custody order of 6 months.  In addition you are subject to an Exclusion Order for a period of 6 months and so you must keep out of all licensed premises, except shops, that sell alcohol for that period. 

10.      For the Exclusion Order, just to let you know what that means again, that if you breach it you will be brought back before this Court and punished accordingly.  You have been given a chance because you are young; because the Court recognises that the statute that we are bound by recognises that sometimes young people make mistakes.  The important thing is that you learn from them.  This is your chance, you had better take it. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

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

Harrison-v-AG [2004] JLR 111.