Inferior Number Sentencing - grave and criminal assault - reasons

[2024]JRC291

Royal Court

(Samedi)

20 December 2024

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Christensen and Opfermann

The Attorney General

-v-

Joseph Francis Jordan

Jordan Anthony McGonagle

Ms L. B. Hallam, Crown Advocate.

Advocate A. E. Binnie for Defendant Jordan.

Advocate P. G. Nicholls for Defendant McGonagle.

JUDGMENT

THE BAILIFF:

1.        On 30 August 2024, this Court sentenced Joseph Francis Jordan (“Jordan”) and Jordan Anthony McGonagle (“McGonagle”) each for a single count of grave and criminal assault on an individual (known as “the victim”) on 9 May 2024.  Each of the Defendants was sentenced to a period of fifteen months youth detention and the Court has made compensation orders in the sum of £719.63 each in favour of the victim.  On that occasion we said that we would explain our reasons on a subsequent occasion.  These in brief are those reasons.

2.        On 9 May 2024, the victim was in the Cornerhouse pub in St Helier with his friends.  At around 6pm, they left and walked to Lilly’s Mini Market in La Motte Street and whilst there, the victim and his friends were joined by Jordan and McGonagle and they sat together drinking.

3.        At around 10.30pm, the victim, his friend, and Jordan and McGonagle were all asked to leave by the license holder.  Jordan and McGonagle were allowed back in.

4.        The victim’s friend realised she had left her bag inside Lilly’s so she and the victim went back in to locate it.  They could not find it.  They walked to the counter where Jordan and McGonagle were standing.  We have had the benefit of seeing the CCTV video of what then happened.  The licensee approached the victim and asked him to leave and the victim reacted badly and attempted to headbutt the licensee.  In the scuffle that followed the victim fell to the floor.  When he got up, he lashed out at other individuals around him.  McGonagle then became involved and threw several punches at the back of the victim’s head although these did not connect.

5.        McGonagle then grabbed the victim in a headlock from behind with both his arms around his neck and pulled him towards the front door causing the victim to fall to the floor.  Jordan then became involved, running towards the victim and kicking the victim several times whilst the victim was on the floor.  Jordan picked up a chair and attempted to hit the victim with it but missed and hit McGonagle instead.

6.        The victim got up from the floor and continued to grapple with McGonagle and as he was getting up, Jordan punched him and he fell back to the floor.  Jordan then kicked and punched the victim several times whilst the victim was on the floor, and he only stopped when pulled away by a third party.

7.        McGonagle finally pushed the victim towards the front door, pushed him out the door and the victim fell to the ground outside, where McGonagle kicked him in the back once.  The victim got up and McGonagle punched him twice whilst holding something in his right hand and almost immediately the victim was punched by Jordan.  The victim fell to the ground unconscious, hitting his head on the pavement.

8.        It was clearly a shocking sight and one of the victim’s friends describes seeing the victim on the ground in the following terms:

“He was lying on his back, with his arms outstretched and his legs down straight.  I can see he had blood on his face running out from his nose and mouth.  His eyes were closed and he was not talking.  I didn’t know whether he was conscious or not.  I spoke to him but he didn’t reply to me.  I could hear [the victim] was breathing.  It was shallow breaths and sounded like he was panting.”

9.        One of the bystanders who took a video can be heard saying of the victim “I think he’s dead”. 

10.     Jordan and McGonagle then went back into Lilly’s for a short period but left immediately before the police arrived.  CCTV of them both shortly afterwards at Snow Hill shows that they were laughing with McGonagle pointing in the direction of the victim.

11.     The victim was taken to hospital and admitted into intensive care.  He underwent a CT scan which showed that he had suffered an extensive subdural haematoma as well as brain bleeds.  He was sedated, intubated and placed on a ventilation machine and was fed by tube.

12.     On 10 May 2024, he was flown to Southampton Hospital where he underwent a further CT scan, a chest x-ray, and was examined by a specialist neurology doctor.  He remained intubated until 13 May 2024.  He was also found to have sustained a nasal fracture.

13.     He returned to the General Hospital in Jersey and was re-admitted where he remained until 21 May and therefore in total was in hospital for some twelve days. 

14.     On 11 May 2024, Jordan was seen by police officers and was arrested.  On 14 May, McGonagle handed himself in at police headquarters and was arrested on that same day. 

15.     During interview, Jordan gave “no comment” answers and when shown the CCTV footage he denied he was the person shown there and claimed that he was not present on that occasion.

16.     McGonagle also answered “no comment” when interviewed.

17.     Both Jordan and McGonagle each entered guilty pleas to the charge on their first appearance at Court.

18.     As is to be expected, the Crown placed before us the case of Harrison v AG [2004] JLR 111 and compared the features of this grave and criminal assault to the factors set out in that case.  It is clear that the blows were aimed and intentional, and some were delivered whilst the victim was on the floor.  The assault appeared to have taken place as a result of a loss of temper and the blows appeared to us to be forceful.

19.     The victim was knocked unconscious and remained so, and we have read the victim personal statement where he speaks of the ongoing consequences.

20.     McGonagle kicked the victim to the back whilst he was on the ground, and Jordan kicked the victim several times.  Other than the fact that the victim had initially been involved in an altercation with McGonagle when they were grappling and throwing punches, there does not appear to be any other form of provocation.

21.     Jordan has no previous convictions and McGonagle had received a caution for disorderly behaviour in 2023.

22.     It is clear that both Jordan and McGonagle were under the influence of alcohol at the time of the assault which, as the Court has said on a number of occasions, is an aggravating feature.

23.     In AG v Cummins [2006] JRC 070, the Court stated:

“This Court has repeatedly said and we repeat again today that those who commit violence in public places in St Helier, particularly if they use weapons, will face substantial sentences.  There is too much violence in Jersey, often fuelled by drink and the Court is determined to try and send a messages that such matters will not be accepted.”

24.     Although it is the case that both Jordan and McGonagle were wearing trainers, the Court has in the past expressed the view that an accused who kicks or stamps on his victim’s head with shod feet commits a serious assault equivalent to “an assault with a weapon” (see AG v Nolan [2002] JLR Note 31).

25.     In AG v Mills [2013] JRC 155A, the Court endorsed the statement of the English Court in Attorney General’s Refence (Number 5 of 1994) that:

“It has to be understood by anyone who uses their feet as weapons that a shod foot can be just as serious a weapon as a stick or any other inanimate object.  Anyone who does that must expect to go to prison for a substantial period.  Such behaviour runs the risk of causing the very gravest injuries, if not death.”

26.     The Crown puts before us the fact that Jordan seized a chair to use as a weapon as an aggravating feature, as is the fact that McGonagle apparently had something in his hand when he struck the victim.

27.     The Crown also puts before us that both Jordan and McGonagle were involved in the assault and were jointly charged, and the Crown proceeded on the basis of joint enterprise.  We agree and viewed them as equally culpable.  The Court repeats, as did the Crown, the dicta of the Court of Appeal in the case of Vladimirov v AG [2024] JCA 161, in which the Court, in considering an argument relating to disparity between sentences due to role in a joint enterprise attack said:

“There is also no objectionable disparity between his sentence and that of Mr Kuzmins.  Although Mr Kuzmins played the dominant role in the events, there is no reason to discount the applicant’s sentence since he chose to join in this very serious offending.  The sentence on both men reflect the cumulative effect of their conduct viewed as a whole.  This is an appropriate reflection of the gravity of their behaviour and does not call for any distinction in sentence.”

28.     Jordan is nineteen years of age and McGonagle is twenty years of age.  Accordingly, the provisions of Article 4 of the Criminal Justice Young Offenders (Jersey) Law 2014 apply.  Article 4 states:

“(2) A Court shall not pass a sentence of youth detention unless –

           (b) It considers that no other method of dealing with the person is appropriate because it appears to the Court that:

                       (i) ….

                       (ii) Only a custodial sentence would be adequate to protect the public from serious harm from the person, or

                       (iii) The offence or totality of the offending is otherwise so serious that a non-custodial sentence cannot be justified.”

29.     Given the nature of this attack, its consequences and its feature as being a drink-fuelled assault, the Court is satisfied that notwithstanding the age of the Defendants, only a custodial sentence can reflect the seriousness of this offending.

30.     We have of course read the pre-sentencing reports relating to both of the Defendants.  Jordan is assessed at being at a very high risk of general reconviction and a high risk of causing harm to the public.  He was assessed as being unsuitable for probation, as the report’s author viewed that option as unrealistic.  A psychological report prepared for him reflects that he meets the diagnostic criteria for complex PTSD, anxiety and substance abuse disorder, and that the author of the report was concerned that a treatment order in the community might be difficult for Jordan to adhere to.

31.     McGonagle is assessed as being at moderate risk of general reconviction and he is assessed as having a poor attitude towards his offending and disregard for the Court system.  His history includes a failure to attend Guernsey Magistrate’s Court and therefore the imposition of a community based order would, as is said in the report, “be considered a high risk strategy”.

32.     Both Jordan and McGonagle have the benefit of early guilty pleas and of course the benefit of youth, and we give due weight to both of those factors.

33.     In mitigation for Jordan, counsel referred to the potential provocation caused by the victim and says that the use of the chair was a spur of the moment action.  Reference was made to his difficult personal circumstances, and we were directed to certain paragraphs in the expert reports to which we do not need to make reference in these reasons.  It was pointed out that he has enhanced status on remand in prison and he accepts responsibility for the offending.  His remorse is to be taken as genuine.

34.     Counsel for McGonagle refers to his youth and that really this was little more than a brawl, although clearly both of the Defendants had overstepped the mark.  Emphasis was placed upon the actions of the victim in landing blows on the proprietor and therefore the actions of McGonagle and indeed his co-defendant should be placed in context.  It was suggested from the CCTV footage that the blows were not hard and that it was Jordan who inflicted the knockout blow and not McGonagle.  It was pointed out that the decision-making of McGonagle was impaired by alcohol which accounts for why he fled the scene.  We pause here to observe, as we have already stated above, that alcohol is an aggravating factor and not a mitigating factor.

35.     In conclusions, the Crown moved for a sentence of two years youth detention for each of Jordan and McGonagle.  Whereas we agree as stated above that the custodial threshold was met in this case, nonetheless in our view, the victim had to a significant extent started the initial brawl and there was a level of provocation.  In the circumstances, we considered the Crown’s conclusions to be too high. 

36.     Nonetheless, this was a serious and sustained assault on a victim which left him lying unconscious with bleeds on the brain.  The consequences to him could have been much more severe and the matter was, as we have repeated above, fuelled by alcohol.

37.     In our judgment, the correct sentence was one of fifteen months youth detention for each of the Defendants and that is the sentence, as stated in paragraph 1 above, that we imposed.

Authorities

Harrison v AG [2004] JLR 111.

AG v Cummins [2006] JRC 070. 

AG v Nolan [2002] JLR Note 31. 

AG v Mills [2013] JRC 155A. 

Vladimirov v AG [2024] JCA 161. 

Criminal Justice Young Offenders (Jersey) Law 2014