AG v Burrell and Ors

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 14 November 2003
• Neutral Citation: [2003] JRC 209
• Date: 14 November 2003

[2003] JRC 209

ROYAL COURT

(Samedi Division)

Before:

Sir Philip Bailhache, Bailiff; and Jurats Le Brocq and Georgelin.

The Attorney General

and

Carl Michael Burrell

Mark James Brown

Adrian Alexander MacKinnon

Benjamin Allan Murray

and

Michael Roy Pankhurst

C.M.M. Yates, Esq., Crown Advocate.

Advocate J. Bell for C.M. Burrell;

Advocate Mrs S.A. Pearmain for M.J. Brown;

Advocate D. Hopwood for A.A. MacKinnon;

Advocate J.C. Gollop for B.A. Murray;

Advocate F.B. Roberton for M.R. Pankhurst.

Authorities

A.G. v Shewan (4th February, 1999) Jersey Unreported; [1999/22].

A.G. v Skinner [2003] JRC 093A.

Thomas: Principles of Sentencing (2 ^nd Edition): Riot and Affray: p.p. 110–112.

Current Sentencing Practice: B3 – 1.3A. Affray – spontaneous or unpremeditated.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2 ^nd Edition): p.p. 285 – 6.

Carl Michael Burrell

1 count of: affray (count 1).

1 count of: assault (count 2).

Age: 27.

Plea: Guilty.

Details of Offence:

The defendants were involved in fighting between 20 to 30 people in the early hours of the morning on La Route de la Liberation. The fighting was filmed by a CCTV camera. All of the defendants save for Murray were drunk at the time. Burrell was involved in the violence from the outset and had punched an innocent bystander, hence the separate assault charge. Brown had at first been chased and had then retaliated by head-butting a man and then kicking him to the head whilst he was on the ground. His actions perpetuated the fighting. He pleaded not guilty and was convicted by a jury. During the fighting MacKinnon had forcibly thrown Murray into the road, and had then thrown punches at other men. Pankhurst had wrestled with Brown on several occasions, and Murray had thrown one punch at Burrell that had not connected. When the Police arrived, Brown tried to run away on two occasions.

Details of Mitigation:

Guilty pleas, remorse, excellent employment record, case had been hanging over his head.

Previous Convictions:

18 offences, 3 of which were for offences of violence.

Conclusions:

Count 1: 12 months' imprisonment.

Count 2: 6 months' concurrent.

Sentence and Observations of Court:

Count 1: 6 months' imprisonment.

Count 2: 2 months' concurrent.

Having viewed CCTV, the Court was satisfied that the affray was not premeditated and the level of violence not grave. However, it would have frightened passers by and was at the bottom end of the scale. Court has made it clear that it will not tolerate violence of this sort in St Helier.

Mark James Brown

1 count of: affray (count 1).

[The defendant pleaded not guilty to count 3, which plea was accepted by the Crown].

Age: 28.

Plea: Convicted at criminal assize on 14 ^th October, 2003 on a not guilty plea.

Details of Offence:

See Burrell above.

Details of Mitigation:

Remorse, certain degree of provocation, family obligations.

Previous Convictions:

9 offences, including various public order.

Conclusions:

15 months' imprisonment.

Sentence and Observations of Court:

9 months' imprisonment.

See Burrell: General Observations of the Court.

Adrian Alexander MacKinnon

1 count of: affray (count 1).

Age: 24.

Plea: Guilty.

Details of Offence:

See Burrell above.

Details of Mitigation:

Guilty plea, good character, lesser involvement, remorse.

Previous Convictions:

1 drink driving.

Conclusions:

6 months' imprisonment.

Sentence and Observations of Court:

£2,000 fine or 2 months' imprisonment, in default of payment.

See Burrell: General Observations of the Court.

Benjamin Allan Murray

1 count of: affray (count 1).

Age: 19.

Plea: Guilty.

Details of Offence:

See Burrell above.

Details of Mitigation:

Guilty plea, good character, fringe involvement, youth, remorse, excellent references.

Previous Convictions:

None.

Conclusions:

£750 fine or 1 month Youth Detention, in default of payment.

Sentence and Observations of Court:

£500 fine or 1 month Youth Detention, in default of payment (2 weeks to pay).

See Burrell: General Observations of the Court.

Michael Roy Pankhurst

1 count of: affray (count 1).

Age: 26.

Plea: Guilty.

Details of Offence:

See Burrell above.

Details of Mitigation:

Guilty plea, good character, lesser involvement, remorse, good references.

Previous Convictions:

None.

Conclusions:

6 months' imprisonment.

Sentence and Observations of Court:

£2,000 fine or 2 months' Youth Detention, in default of payment (3 months to pay at minimum of £250 per month).

Bailiff

THE

1 The Court wishes to say, first of all, two things about the offence of affray for which all these defendants are to be sentenced and which involves putting members of the public in fear by fighting.

2 First the important criteria in determining the gravity of the offence are the level of violence used, the scale of the affray, that is to say how many people are involved in it, and the extent to which it is premeditated or spontaneous. The Court has had the advantage of seeing the CCTV footage of part of the incident. We are satisfied that the fighting was not premeditated and that the level of violence with some exceptions was not particularly grave. It must, indeed, have been a frightening occasion for any passer by, but in the context of affrays, this incident was at the bottom end of the scale.

3 Secondly those who take part in an affray must accept that they have a measure of responsibility for the actions of others with whom they are acting jointly. It is in the nature of an affray that it is not always possible to identify exactly who did what. If a man joins in the fighting he is contributing to the public terror which is at the heart of the offence and must expect to be punished accordingly.

4 We turn now to the individuals. Burrell was one of those most deeply involved in the fighting....