ROYAL COURT
(Samedi Division)
24 September 1999
Before:Sir Philip Bailhache, Bailiff, and
Jurats de Veulle, and Bullen
AG
v
Joe David Andrade
Jose Avalino da Silva
1 count of grave and criminal assault.
Age:Andrade:22
da Silva:23
Plea: Guilty.
Details of Offence:
Victim approached Andrade in the street and asked him for repayment of a loan made some weeks earlier. Andrade was driving a van with da Silva in the passenger seat. They immediately alighted and went to the back of the van, opened the doors and took out wire cutters, an arch saw, a sickle and a hoe. They then set about the victim and threatened to kill him. The victim ran to the other side of the street and the defendants pursued him, where the assault continued: the victim was punched, thrown into iron railings and kicked. He sustained multiple injuries, none of which was in the highest category of seriousness: laceration to hand requiring three sutures, three small lacerations near the tip of his nose, 1 centimetre puncture wound to left scapula and multiple abrasions.
Details of Mitigation:
Andrade:
Accepted the seriousness of assault (brandishing and using dangerous weapons on a busy street in St Helier in the early evening); guilty plea; had expressed remorse; sense of shame (especially as regards family, who were loyal and supportive). His intention was to frighten victim, not seriously injure him. No pre-meditation: the defendants had not gone out to commit criminal offences that afternoon. He was overcoming heroin addiction and was obtaining treatment for this addiction; he had already spent four months on remand; defendant had a good work record and had excellent references; there was a strong recommendation in SER for a non-custodial sentence; the defendant was still quite young at just 22 and had no previous conviction for violence.
Da Silva
Also accepted the seriousness of assault and its circumstances; guilty plea; he had expressed remorse and had met the victim and apologised to him. His intention was to frighten the victim and not to seriously injure him. There was no pre-meditation, the defendants had not gone out to commit criminal offences that afternoon. Defendant had already spent three months on remand; he now had a steady job and was engaged to be married with obligations re child of a previous relationship. There was a strong recommendation in SER for non-custodial sentence; the defendant was still relatively young at 23 and had never served a prison sentence or had the benefit of a Probation Order.
Previous Convictions:
Andrade:
Several from April 1998: motoring, public order, minor dishonesty: binding over, probation. Nothing for violence.
Da Silva:
Two: common assault (Guernsey) 1995: fined; receiving stolen goods, 1998: bound over.
Conclusions:
Andrade:3 years imprisonment.
da Silva:3 years imprisonment.
Sentence & Observations of Court: (both accused): 2 years Probation; 240 hours community service.
Andrade: to attend SMART course and to continue to seek the advice of the Drug and Alcohol Service.
Da Silva: to attend aggression control course and to continue to seek the advice of the Drug and Alcohol Service.
Court was persuaded, rightly or wrongly, that this had been more of a stupid and theatrical prank than a deliberate attempt to cause injury to the victim. That being so, the case fell into the lower end of the Norris scale. Both defendants clearly deserved to go to prison, but in the light of the mitigation and in particular their personal circumstances, the Court would impose non-custodial sentences.
A J Olsen, Esq., Crown Advocate
Advocate R J Renouf for J D Andrade
Advocate R G Morris for J A da Silva
JUDGMENT
THE BAILIFF: Rightly or wrongly we take the view that this was more of a stupid and dangerous theatrical performance than a serious attempt to cause injury to the victim. Viewed from the victim’s perspective and from the perspective of bystanders, of course, the waving of these implements in a public street must have been extremely frightening but we accept the submission of defence counsel that there was no serious intention to use them so as to cause injury. That being so, we would put this grave and criminal assault at the lower end of the scale, so far as the Norris guidelines are concerned.
Andrade and da Silva, you both deserve to go to prison. We have, however, taken into account the fact that you have already served the equivalent of some six months in prison, but more importantly we have taken into account what your counsel have both told us: that you have obtained work; that you have been supporting yourselves since being released on bail and that you are making attempts to dissociate yourselves from those involved in drug abuse and to reform yourselves and we are accepting these submissions which have been made by your counsel, on your instructions, as being truthful and as expressing your real intentions.
We are going to put you on Probation for this offence but we want you both to understand very clearly that if you do not comply with the conditions of the Probation Order, it is almost certain that, if you are brought back to this Court, you will be sent to prison.
Andrade, we are going to place you on Probation for two years, subject to the conditions that you live and work as directed by your Probation Officer; that you perform 240 hours’ Community Service to the satisfaction of the Community Service Organiser; that you attend the SMART course and that you continue to attend upon the Drug and Alcohol Service as required by the Probation Office.
da Silva, we are going to place you on Probation also for two years, subject to the conditions that you live and work as directed by your Probation Officer; that you perform 240 hours Community Service to the satisfaction of the Community Service Organiser, that you attend the aggression control course and that you, too, attend upon the Drug and Alcohol Service as required by your Probation Officer.
Authorities
A.G. -v- Norris (3rd June, 1992) Jersey Unreported.
Evans & Philips -v- A.G. (9th April, 1997) Jersey Unreported CofA.
A.G. -v- Skinner (12th December, 1994) Jersey Unreported.
A.G. -v- Shewan (4th February, 1999) Jersey Unreported.[1999.022]
A.G. -v- Leitch (21st August, 1999) Jersey Unreported.
A.G. -v- Swanston (19th October, 1998) Jersey Unreported. [1998.206]
A.G. -v- Brolly (20th November, 1998) Jersey Unreported. [1998.230]
A.G. -v- Goguelin (27th November, 1998) Jersey Unreported. [1998.237]