AG -v- De Freitas and Hepburn [2015] JRC 191A (18 September 2015)

JUDGMENT THE commissioner: 1. The defendants stand to be sentenced for affray and Hepburn for a number of lesser offences. The essence of the offence of affray is that by your conduct and words you have used or threatened violence in such a way that would cause a reasonable person present at the scene to fear for his or her safety. 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. Those who take part must accept 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 but they are all contributing to the public fear which is at the heart of the offence.

2. In this case there had been an earlier altercation in St Helier between Hepburn and another group, including Jared Allenet. The CCTV footage shows Hepburn and Allenet posturing and shouting at each other and exchanging blows. The police fortunately restored order and the groups were sent on their separate ways. They met again in the area of Snow Hill and Hepburn's group began to follow Allenet's group. There were verbal exchanges between Allenet and Hepburn. The groups moved towards Howard Davis Park where Hepburn was described as being agitated and wanting to fight. There Hepburn made a call to De Freitas, who joined them, bringing two bottles with him. Once together the defendants called for Allenet and they began running towards Allenet's group, smashing the bottles so that they were holding broken bottles in their hands. There were a number of witnesses who feared for their safety, one of whom called the police before the defendants could get at Allenet.

3. The defendants have previous convictions; Hepburn is assessed at a high risk of reconviction - De Freitas at a medium risk.

4. In terms of mitigation both have pleaded guilty and get full credit for that. De Freitas has significantly reduced his offending in recent years and he has now expressed remorse for his conduct on that evening.

5. Hepburn has a fiancée and a 14-month old son. He has also taken over the role of father to his fiancee's two other children. He has psychological issues as set out in the report from Dr Boucher, who has recommended treatment for him. He has written to us expressing his remorse for his conduct and Probation have confirmed that he is trying to make positive changes in his life.

6. We have considered all of the mitigation put forward by counsel on behalf of both defendants but we can see no alternative to imposing a custodial sentence. Drink-fuelled affrays of this kind in the streets of St Helier cannot be tolerated and the message must go out that it will result in custodial sentences unless the mitigation is exceptional, and we can see no exceptional mitigation in this case. We do agree, however, with counsel that, applying the AG-v-Burrell and Others [2003] JLR N 53 criteria, this offence is at a lower end of the scale and that will be reflected in the sentence we impose. We also take the view that the telecommunications charge in relation to Hepburn should be treated concurrently as we see it as part and parcel of the incident.

7. In terms of the affray you are both sentenced to 1 year's imprisonment.

8. Mr Hepburn, in relation to Count 2, causing a breach of the peace by fighting, there will be no separate penalty. In relation to Count 3, the telecommunications charge, you will be sentenced to 2 months' imprisonment, concurrent, and in relation to Count 4, the larceny of the mobile phone, you will be sentenced to 2 weeks' imprisonment, consecutive. Therefore for Mr Hepburn you will serve a total of 1 year and 2 weeks imprisonment.

9. Mr De Freitas, you will serve a total of 1 year's imprisonment.

10. There will be no Exclusion Order. Authorities AG-v-Burrell and Others [2003] JLR N 53. AG v McDougal [2010] JRC 072 . AG v Heard [2012] JRC 132 . Licensed Premises (Exclusion of Certain Persons) (Jersey) Law 1998. Page Last Updated: 27 Sep 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII