Jersey Unreported Judgments

[2005]JRC026

ROYAL COURT

(Samedi Division)

 

3^rd March, 2005

 

 

The Attorney General

-v-

Brendan James Myles

 

 

Keith Roger John Vale

 

 

Sentencing by the Superior Number of the Royal Court, to which the Defendants were remanded by the Inferior Number on 17^th February, 2005 as follows:

 

Brendan James Myles

 

First Indictment

 

3 counts of:

Grave and criminal assault (Counts 1, 2 and 3).

 

Second Indictment

 

1 count of:	Kidnapping (Count 1).
1 count of:	Grave and criminal assault (Count 7).

 

Age:     20.

 

Plea:   

 

First Indictment

 

Counts 1, 2 and 3 guilty plea entered on 1^st October, 2004.

 

Second Indictment

 

Count 1:  Convicted on not guilty plea at criminal assize on 25^th January, 2005.

 

Count 7:  Guilty plea entered on 1^st October, 2004.

 

Details of Offence:

 

First Indictment - Myles

 

Drunken fight between Myles and another male in the Parade involving punching and a head-butt resulting in minor injuries (Count 1).  Attack on mother of victim in Count 1 during early hours in communal entrance to her flat.  Verbal abuse, pulling hair and pushing resulting in victim falling against concrete steps hitting her head.  Relatively minor injuries resulting in four stitches to a wound to the head (Count 2).  Fight at the Weighbridge taxi rank during the early hours involving a punch, head-butt and at least three kicks to the top half of victim's body while he lay on the floor causing victim to bleed from mouth.  (Count 3).

 

Second Indictment (Myles and Vale)

 

Myles and Vale attended victim's flat.  Vale punched victim three or four times to the face causing minor injury.  He picked up a claw hammer and swung it at victim.  Myles intervened three or four times to prevent blows connecting (Count 2).  Myles and Vale forced victim to accompany them to a basketball court.  Vale had claw hammer with him.  Victim in fear and searched by Vale on arrival (Count 1).  At the basketball court were a number of young people.  Vale told victim to tell them to give up their jewellery and telephones.  Victim refused.  Myles went up to a young male.  Multiple punches and two head-butts.  Multiple kicks to victim's head, whipping to victim's body and head some ten times with a stick and stamping on victim's head while he lay on the floor resulting in multiple moderately severe injuries including fractured cheekbone and pronounced tramline bruising (Count 7).  Remaining young people lined up against a wall.  Vale went up to a 14 year old male.  He asked for his mobile and put it in his pocket (Count 3).  Vale pulled out the claw hammer and asked same victim for his ring which he took from him (Count 4).  Vale moved to a 14 year old female and told her to give him her ring.  He took out the claw hammer again (Count 5).  As Vale was demanding the ring the kidnap victim intervened.  Vale swung the hammer at his head.  Blow was deflected by victim's forearm causing minor injuries (Count 6).

All offences fuelled to some extent by alcohol.

 

Details of Mitigation:

Guilty plea to Counts 1, 2 and 3 of the First Indictment and Count 7 of the Second Indictment.  Youth.  Remorse.

 

Previous Convictions:

Bad record comprising principally violence and public order offences.

 

Conclusions:

First Indictment

 

Count 1:	6 months' youth detention.  (2 years' starting point).
Count 2:	18 months' youth detention.  (6 years' starting point).
Count 3:	9 months' youth detention.  (2½ years' starting point), all concurrent.

 

Second Indictment

 

Count 1:	12 months' youth detention.  (3 years' starting point).
Count 7:	2 years' youth detention.  (7 years' starting point), to run concurrently, but consecutive to that imposed on First Indictment.

 

Total sentence on First Indictment to follow consecutively total sentence on Second Indictment giving total of 3 ½ years' youth detention.

 

Sentence and Observations of Court:

 

First Indictment

 

Count 1:	12 months' youth detention.
Count 2:	2 years' youth detention.
Count 3:	15 months' youth detention, concurrent.

 

Second Indictment

 

Count 1:	18 months' youth detention.
Count 7:	2 years' youth detention. Concurrent but consecutive to that imposed on First Indictment.

 

Starting points of limited use in cases involving multiple offences where Court required to reach aggregate sentence in light of totality principle.  In such cases Court may proceed in one of two ways:

 

1.             It can pass consecutive sentences but individual sentences are likely to be lower; or

2.             It can pass concurrent sentences but sentences for most serious offence will have to be raised.

Court views seriously assaults on women in their own home.  Starting point for this offence (Count 2 - First Indictment) 5 years' youth detention appropriate.  Starting point on Count 7 - Second Indictment too high.  Starting point of 5 to 6 years youth detention appropriate.

 

 

Keith Roger John Vale

 

Second Indictment

 

1 Count of:	Kidnapping (Count 1).
2 Counts of:	Grave and Criminal (Counts 2 and 6).
1 Count of:	Larceny (Count 3).
1 Count of:	Robbery (Count 4).
1 Count of:	Attempted Robbery (Count 5).

 

Age:     21.

 

Plea:   

 

Count 1:	Convicted on Not Guilty plea at criminal assize on 25th January, 2005.
Count 2:	Convicted on Not Guilty plea at criminal assize on 25th January 2005.
Count 3:	Guilty plea entered on 1st October, 2004.
Count 4:	Guilty plea entered on 1st October, 2004.
Count 5:	Guilty plea entered on 1st October, 2004.
Count 6:	Guilty plea entered on 9th January, 2005

 

 

Details of Offence:

See:  Myles above.

 

Details of Mitigation:

Guilty plea to Counts 3, 4, 5 and 6 of Second Indictment (guilty plea to Count 6 entered at very late stage).  Youth.  Remorse.

 

Previous Convictions:

 

Record including offices of violence.

 

Conclusions:

 

Count 1:	18 months' imprisonment.  (3 years' starting point).
Count 2:	18 months' imprisonment.  (3 years' starting point).
Count 3:	3 months' imprisonment.
Count 4:	12 months' imprisonment.
Count 5:	9 months' imprisonment.
Count 6:	9 months' imprisonment. (2 years' starting point), all concurrent.

 

Total 18 months' imprisonment.

 

Sentence and Observations of Court:

 

 

Count 1:	18 months' imprisonment.
Count 2:	18 months' imprisonment.
Count 3:	3 months' imprisonment.
Count 4:	12 months' imprisonment.
Count 5:	9 months' imprisonment.
Count 6:	12 months' imprisonment.

 

Counts 1 and 2 concurrent.

Counts 3 - 6 concurrent, but consecutive to counts 1 and 2.

 

 

 

 

A. J. Belhomme, Esq., Crown Advocate.

Advocate C.M. Fogarty for B. J. Myles.

Advocate J. Bell for K.R.J. Vale

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        We will deal with each defendant in turn.  First of all Brendan Myles who is before us for four offences of grave and criminal assault and one of kidnapping.  He pleaded guilty to the assaults but not guilty to the kidnapping, but was convicted by the jury.

2.        On the First Indictment there are three grave and criminal assaults.  The first was in the early hours of 4^th March when he assaulted Joao Velosa by punching him twice and head-butting him.  Shortly after that at about 4 a.m. he went to the home of Velosa's mother.  There in the entrance to her own flat, he threatened her, threatened to kill her, he pulled her by the hair and then pushed her so that she hit her head on some concrete steps, and she required four stitches to the side of her head.  This must have been a terrifying incident for Velosa's mother. 

3.        Thirdly, on the 6^th March in the early hours at the taxi queue at the Weighbridge he assaulted a young man in the queue by throwing a punch and a head-but and then kicking the victim some three times or so to the body when the victim fell to the floor.

4.        The Second Indictment relates to events on the 1^st May, when the defendant was already on bail for the offences which we have just described.  In relation to Count 1, the kidnapping, he and Vale went to the victim's flat and forced the victim to accompany them to the basket ball court at Le Geyt Flats.

5.        It is accepted that the defendant Myles played a lesser part in this kidnapping in the sense that he restrained Vale from some of the violence that Vale was seeking to inflict on the victim in the flat but, nevertheless, it was clearly a joint enterprise whereby they forced the victim to accompany them when he did not wish to do so.

6.        At the basket ball court, count 7 occurred.  This was a further serious assault.  The defendant punched the victim repeatedly, head-butted him twice, kicked him about the head a number of times and stamped on his head whilst he was on the ground and then used a wooden stick to whip the victim about the head and body some ten times until it broke.  The victim suffered a cheek fracture, and extensive bruising which we have seen in the photographs.

7.        Now the Crown has taken us through each of these counts and suggested a starting point in relation to each offence.  In cases of multiple offences, the key rôle for this Court is to decide on the appropriate aggregate sentence having regard to the totality of the offending.  This can be done in one of two ways. Sometimes the Court can pass a number of consecutive sentences.  In that case the individual sentences for particular offences are likely to be less than if that individual offence had stood alone, as otherwise the aggregate sentence will become too high.  Alternatively the Court can pass concurrent sentences, but in that case the Court is likely to have to lift the sentence for the most serious offence beyond what would have been passed if the offence had stood alone.  Otherwise the aggregate sentence for a substantial number of offences would be no greater than would have been passed if the most serious offence had stood alone.  In other words there would be no punishment for the fact that more than one offence has been committed.  Alternatively, the Court will sometimes have to pass some concurrent and some consecutive sentences.  In all of these cases the individual sentences have to be tailored to reflect the overall level of offending.

8.        Now in these circumstances we do not propose to comment on the starting points for all the individual sentences, suggested by the Crown because we have to have regard, in the adjustment of these sentences, to the totality.  We would just mention two of them. 

9.        In relation to Count 7 of the Second Indictment, that is the assault on Philpot, the Crown has suggested a starting point of 7 years.  We think this is too high and we think something in the region of 5 to 6 years would be more appropriate.  Similarly in relation to Count 2 of the First Indictment, that is the assault on Velosa's mother, whilst the Court takes a very serious view of assaults on women who are awoken in the middle of the night in their own home and it was undoubtedly extremely terrifying, the Court must still have regard to the actual level of physical violence in the assault and on the facts of this particular case, we think a staring point of in the region of 5 years would be more appropriate. 

10.      As we say the significance of starting points in a case like this with multiple offences carried out at different times is rather reduced.

11.      Returning to Myles, his problem is drink.  All of these offences were committed whilst he was under the influence of alcohol; and we are very pleased to note that he has begun to realise this at last.  He has a very poor record with many previous convictions for assault and public order offences.

12.      In mitigation Miss Fogarty has put forward the fact that he did plead guilty to all offences save the kidnapping.  He is a young man being only 20 and therefore Article 4 of the 1994 Law applies, but we are quite satisfied that there is no alternative to youth detention in this case; first, on the grounds that the totality of the offending is so serious that a non-custodial sentence cannot be justified; and secondly, he has shown a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them.  Nevertheless, his youth is still, of course, a very important factor when considering the length of sentence.

13.      We have had regard to the background report, to the references which have been handed up, and his letter.  We are pleased to note the efforts that he is making in prison and we very much hope he will continue with these so that he is better placed to make his way in life when he is released.

14.      Although Miss Fogarty did not mention it, we will also allude to the question of delay which was raised by Mr Bell, because clearly it affects both defendants equally.  We think there is only one period of delay which was unfortunate.  There was a gap from July to October between committal and indictment in this Court.  That was too long.  It should not have been longer than about a month or six weeks at the most, and therefore there has been unnecessary delay on the part of the prosecution of between 6 weeks and 2 months.  The rest was attributable to the fact that the defendants pleaded not guilty and an assize trial was necessary.

15.      These were serious offences and the Court has repeatedly said that it is determined to do what it can to prevent violence on the streets of St Helier, by passing appropriately severe sentences.  We would refer in particular to the important dicta of Southwell JA in the case of Gill -v - A.G. [1999]JRC160 when he said this:

"In cases of violence, whether of assault or robbery or rape or other forms of violence, it is necessary that the punishment ordered by the Court should have an element of deterrence.  Not to deter the defendant because it is too late to do that, but (1) to deter others who may be tempted to engage in similar violence and to remind them that if they do they will similarly face long sentences of imprisonment; and (2) to show to the community as a whole that violence of this kind is not to be tolerated and will never be tolerated by the Courts of Jersey".

16.      In this Court's view the overall conclusions of the Crown in this case in relation to Myles were too low, having regard to the number of offences, the nature of the offences and the fact that he has such a poor record of having committed similar offences in the past.  The sentence therefore will be as follows, on the First Indictment Count 1 we consider 6 months too low for that offence and the sentence will be 12 months.  On Count 2, that is the assault on Velosa's mother we also consider 18 months too low for such a serious assault in the circumstances in which it was carried out and we increase that to 2 years.  In relation to Count 3, which involved the kicking in a taxi rank of a person who was on the ground, again we consider 9 months too low and we increase that sentence to 15 months.  We make all of those concurrent, making a total sentence of 2 years on the First Indictment.

17.      In relation to the Second Indictment, Count 1 the kidnapping we regard 12 months as too low and we increase that sentence to 18 months.  In relation to Count 7, we endorse the Crown's conclusions of 2 years.  We make those two concurrent making a total of 2 years on the Second Indictment.  However, the Second Indictment must be consecutive to the First Indictment making a total of 4 years youth detention.  We say that the defendant may be subject to supervision when he is released.  We repeat that what we have concentrated on is the totality of the offending and we have adjusted individual sentences to reflect our view of their respective significance.

18.      Now Vale is only concerned with the Second Indictment, that is kidnapping and the assault on the victim in the flat.  That involved punches and attempts to hit him with a claw hammer a few times.  Vale pleaded not guilty to those two offences, but was convicted. 

19.      At the basket ball court he stole a mobile phone from a 14 year old; he robbed the same 14 year old of a ring by brandishing the claw hammer; he attempted to rob a 14 year old girl of her ring by again using of the claw hammer.  She bravely refused and he then assaulted the original victim of the kidnap who had come to the girl's rescue, and he did this by trying to hit that victim with the claw hammer striking his left forearm in the process.  All of this must have been extremely frightening for these young people. 

20.      Vale also has previous convictions for assault and public order offences, although his record is not as bad as Myles' record.  Furthermore, these offences took place on temporary release from prison where he was already serving a sentence for assault.  He therefore betrayed the trust which had been placed in him by the prison authorities.  Drink is also his problem and we are pleased to note that he perhaps is also realising that. 

21.      In mitigation we take into account his guilty plea, although not of course in relation to the kidnap and the assault in the flat.  We accept that he is remorseful and we have read his letter.  This also appears from background report.  We take into account his youth, he is 21.  We also note the point about delay, although we think there is very little delay, for the reasons we have given, and again we are pleased to note that Vale is making good use of his time.

22.      Having regard to the principles that we have described and the comments in Gill we think the overall conclusions in this case were too low.  On Count 1, that is the offence of kidnapping, 18 months' imprisonment.  On Count 2, that is the assault, 18 months' imprisonment.  On count 3 the larceny that is 3 months' imprisonment.  On Count 4 which is the robbery 12 months' imprisonment.  On Count 5 which is the attempted robbery, 9 months' imprisonment.  On Count 6, which is the assault using the claw hammer, we think that that is too low and the correct sentence should be 12 months' imprisonment.

23.      We think Counts I and 2 which relate to the incidents at the flat should be concurrent, but we think that the offences which took place at the basket ball court should all be concurrent with each other, that is Counts 3 - 6 but consecutive to Counts 1 and 2 making a total sentence of 2½ years.  We emphasise that we regard the robbery offences as serious and if they had stood alone we would certainly have passed a higher sentence than we are in fact passing, but in the same way as with Myles, we are having regard to the totality principle in order to try and adjust the sentences so as to come out with the overall sentence that we regard as being correct. 

Authorities

A.G. -v- Beamer and Ors [2003]JRC020.

Gill -v- A.G. [1999]JRC160(5^th June, 1995): Jersey Unreported [1999]160

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): Grave and Criminal assault: paras 572 - 608, 661 - 3, 706 - 66.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): Kidnapping false imprisonment:  paras 831 - 4 (b).

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): Robbery: paras 386 - 7.

Harrison -v- A.G. [2004JLR046].