AG v Henderson-Bell 30-Sep-2019 [2019] JRC 187 (20 September 2019)

JUDGMENT THE lieutenant BAILIFF: 1. The incident that occurred at and around Les Platons car park at lunchtime on 26 th April last must have been truly terrifying, both for its victims and to those who witnessed it. The defendant telephoned the proprietress of the catering truck that was parked there and threatened to kill her four customers who were seated outside the truck. He accelerated aggressively towards them with the wheels of his car spinning. The customers fled from their seats and ran for cover. The defendant drove straight through the chairs on which they had been seated and crashed into a wheelie bin and various other items alongside the truck. The proprietress described herself as " petrified" and was in fear for her life. She, like her customers, fled the scene and took cover behind some nearby trees.

2. The defendant drove in circles around the car park, in the words of one of the witnesses to the affray " like a lion stalking his prey" . It seems all too clear to us that those who had to run for cover were in genuine fear for their lives. A lady who witnessed the incident described herself as being in pure " panic mode" and she fled with her four-year-old daughter along the cliff path.

3. The defendant, in his letters of apology to the victims and witnesses, asserts that he had had no intention of harming anyone, but he rightly acknowledges that they were not to know that, and we agree. The Court can only begin to guess at the panic, confusion and sheer terror that the defendant's actions and attitude caused that day to innocent and unsuspecting members of the public. In our judgment this was a serious affray.

4. The defendant sped away when a police car arrived and failed to stop when ordered to do so. When he was finally apprehended and arrested he was breathalysed. The result was a reading just over twice the legal limit. In interview later he told the police officers that he had been "out to cause a scene. Attention seek, cry for help, but I don't know why" .

5. The Crown has referred us to the case of AG v Burrel and Ors [2003] JRC 209 . The Court there held at paragraph 2 that when determining the seriousness of the offence of affray, the factors to be considered are the level of violence, the scale of the affray and the extent to which it was premeditated or spontaneous. (i) The level of violence. The defendant acted in an exceedingly threatening manner. The threat of violence was higher than the actual violence used due to the verbal threats made and the use of the defendant's car to inflict the possible violence. In effect, he was using the car as a weapon. Mercifully no one suffered any physical injury. (ii) The scale of the affray. The offending happened at lunchtime when the car park was busy with about eleven members of the public present including a child aged four. But on the other side of that coin, the defendant acted alone. (iii) The extent to which this was premeditated or spontaneous. As the Crown has said, the defendant made a telephone call to the owner of the catering truck warning her that he was going to kill the four customers and run them over before driving at the catering truck as we have already described. This demonstrates an element of premeditation, though the Crown accepts that the defendant did not go to the car park in the first instance intending to commit an affray, and we think that is right.

6. The Crown has referred us to AG v De La Haye [2010] JRC 005 for the purpose of comparison, but we do not consider this case to be of any great assistance to us here. It involved grave and criminal assault, there were five impacts with the motor vehicle, and the defendant caused serious injuries to three victims. We think that that was a totally different sort of case.

7. In a comprehensive plea in mitigation Advocate Heath drew our attention to a number of strongly mitigating features, and we take them in the order in which she made them. The defendant has agreed to pay for all the damages. His wife and family are in Court and there is a strong family support network. We agree that it was a cry for help. The behaviour was, we think, out of character and was caused by a mental health crisis. We agree that the defendant probably was at the end of his tether, at breaking point. Our attention was also drawn to the help of a group of professionals and a loving wife and a loving family and he was doing everything he can to stop himself reaching that desperately low point again. We heard that the defendant has had issues with anxiety since childhood and we think that there undoubtedly are and have been mental health issues for quite some time. There was an early guilty plea. He was cooperative (although we are concerned that he refused to give his PIN for his telephone to the police, and that slightly mars the cooperation point). He has expressed deep remorse and we were told that it was of his own accord that he wrote to all the victims and witnesses. We are deeply impressed by those letters. There is strong victim empathy and we think that the remorse that has been expressed is genuine.

8. Advocate Heath pointed out that the defendant has stopped drinking now. Drinking is a cause of many of his issues, and we understood that he has been abstinent since this case started. She told us that he has no intention of restarting and that he has engaged fully with the mental health services. There is a limited criminal history and there are no previous convictions for violence.

9. Defence counsel also pointed to the defendant's work ethic. He has worked throughout his life, and we were impressed with the letters from the employers both current and previous. He is complying with his medication, treatment and therapy and we were asked to attach a treatment order to any probation order if the Court were able to impose a non-custodial sentence.

10. We have had regard to the many letters that have been submitted to us, including a heartfelt letter from the defendant's wife, and we note that his job has been kept open for him by his present employer. All this mitigation taken in the round combines in our judgment to make this an exceptional case.

11. Please stand up, Mr Henderson-Bell. The Court is not going to send you to prison. There will be a non-custodial sentence, but it is going to be a tough one. You are going to be sentenced to a total of 240 hours' Community Service and that will be equivalent to a combined prison sentence of 18 months. In Count 2 we would have given you 15 months for the affray and Count 3 of the Second Indictment we would have given you a consecutive sentence of 3 months. Together, these would have added up to an 18 month prison sentence.

12. The sentence of the Court is therefore as follows: (i) Count 1 malicious damage, there will be a Probation Order, but I shall come back to that at the end of our sentencing remarks. (ii) Count 2 affray, there will be 180 hours' Community Service. (iii) Turning to the Second Indictment, failure to stop, Count 1. There will be fine of £1,500 or 2 weeks' and that will be consecutive, if you do not pay, to Count 3 of that same indictment. (iv) Count 2 careless driving, a fine of £1,300 or 2 weeks', again consecutive to Count 3 in the event of failure to pay. (v) Count 3 driving under the influence, there will be 60 hours of Community Service and you will be disqualified from driving for a period of 3 years and 6 months, which we think is the appropriate period. At the conclusion of that you must note that you will have to take a driving test to get your licence back.

13. In relation to all five counts, that is to say the First Indictment two counts and the Second Indictment three counts, there will be a Probation Order of 12 months and we are going to refer to paragraph 50 of the Social Enquiry Report so that you know what a job you have ahead of you. "The action plan [says the author] would include the following; · Engagement with the Alcohol & Drug Service for assessment/treatment; · Completion of the six session Core Programme, which examines problem-solving, offence analysis, consequential thinking, victim awareness, making reparation and staying out of trouble; · Attendance and completion of the 10 session Emotional Coping Skills group, which involves mindfulness, distress tolerance, emotional regulation and interpersonal effectiveness; · Potential referral into the Restorative Justice process following assessment by the Restorative Justice Officer" We are going to attach a Treatment Order to that. I do not know if you have seen Dr Engelbrecht's report or not, but at 13.11 of that report on page 26 she advises that you should comply with all directions as stipulated by the Alcohol and Drug Service including "... · To remain abstinent from alcohol [as you are now]. · To attend appointments with the Alcohol and Drug Service. · To be breathalysed for alcohol when required. · To comply with a medication regime to support [you] in remaining abstinent from alcohol, if recommended following assessment by the Alcohol and Drug Service." I hope all that is clear to you.

14. So there will be a total of 240 hours' Community Service, a Probation Order of 1 year and a total of £2,800 in fine with 2 weeks to pay. Authorities AG v Burrell and Ors [2003] JRC 209 . AG v De La Haye [2010] JRC 005 . Road Traffic (Jersey) Law 1956 Criminal Justice (Standard Scale of Fines) (Jersey) Law 1993 Extract from Magistrate's Court Sentencing Guidelines Page Last Updated: 04 Oct 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII