Jersey Unreported Judgments

2001/69

4 pages

ROYAL COURT

(Samedi Division)

 

23^rd March, 2001

 

Before:  M.C. St. J. Birt, Esq., Deputy Bailiff, and

                                          Jurats de Veulle and Allo

 

 

The Attorney General

-v-

Joao Luis de Sousa

 

 

1 count of:   grave and criminal assault (count 1);

 

1 count of:   larceny (count 2).

 

Age:    19.

 

Plea:   Guilty.

 

Details of Offence:

 

De Sousa went to his former girlfriend's address, and, once she let him enter the property, he became abusive and aggressive.  He started punching her but using only minimum force with the intention of getting her to retaliate.  When she did not, he took a 10" double-bladed, jagged-edged, knife from the kitchen and held it to the victim's neck, threatening to kill her.  He held the knife to her throat on two occasions, and at one time, held the knife against her stomach.  Twice during the course of the assault, the victim attempted to call the police but was prevented by de Sousa.  The defendant made cuts to his arm using the knife and a razorblade which he had picked up at the property, stated that he was going to kill himself and that the victim would get the blame as he would ensure her fingerprints were on the knife.  The victim eventually managed to call the ambulance service and the police, who attended at the property.  When searching de Sousa, two bags of coins, a 'Canon' camera and a 'Gameboy' were discovered, which belonged to the victim.  De Sousa was a heroin addict and had taken heroin on the morning of the assault.  He stated that he had cut himself as he wanted to kill himself, and that he needed help with his heroin addiction.  He claimed that he had had no intention of harming his girlfriend.  He admitted taking the above items, but said that his girlfriend had some of his property.  The Crown viewed this as a very serious offence and, for the purposes of sentencing, took 4½ years as its starting point.  Although de Sousa came within the terms of the Criminal Justice (Young Offenders) (Jersey) Law, 1994, the Crown contended that a custodial sentence was appropriate because of the seriousness of the offence, and because of de Sousa's previous failure to comply with non-custodial orders.

 

Details of Mitigation:

 

In the Crown's view, the defendant had the benefit of a guilty plea and was also co-operative with the police throughout his interview.  However, it was noted that he had given a different version of events to the Probation Officer, suggesting that it was the victim who had wanted to take her own life.  The defendant had the benefit of residual credit on account of his youth, although he was not of good character and had previous offences for both violence and dishonesty.  The Crown also took into account his unfortunate upbringing and personal circumstances.  Defence counsel acknowledged that this was a serious offence.  The defendant's previous relationship had been a violent one and the victim had been aware of this.  No physical injuries had been sustained, but it had been a frightening incident causing distress to the victim.  De Sousa had threatened his girlfriend because he was jealous and angry and his emotions had been heightened by the heroin he had taken that day.  Although he had not been charged with drug offences, he had been frank about his addiction, which had started when he was 16.  He wanted to use his time in custody to treat that addiction and he was making a real effort to become drug-free and he intended to remain drug-free once released.  He came from a deprived background and as he spoke little or no English when he came over to Jersey to join his family, he felt isolated.  As he had not received any education in Jersey he experienced difficulty in finding and keeping employment.  His criminal record was restricted to the last two years, prior to that he had never been in trouble.  This offence, like his previous offences, was related to or in consequence of his addiction.  The Crown had sought a recommendation from the Court for de Sousa to be deported, but this was opposed because it was considered that such a recommendation would be disproportionate to the offences, and his family lived here.

 

Previous Convictions:

 

The defendant had six previous convictions: including grave and criminal assault, larceny, breaking and entry, possession of cannabis and heroin and motoring offences.

 

Conclusions:

 

Count 1: 2½ years' youth detention.

Count 2: 2 months' youth detention, concurrent.

Deportation Order on completion of youth detention sentence.

 

Sentence and Observations of the Court:

 

Count 1: 2 years' youth detention;

Count 2: 2 months' youth detention, concurrent.

 

This was a frightening assault with the defendant holding a knife to his former girlfriend's neck, threatening to hurt her and then harming himself.  This was quite a lengthy assault.  De Sousa came to Jersey in 1996 and had been before the Courts on a number of occasions which had resulted in his being put on probation and, although he was only 19, the Court felt they had no alternative but to impose a prison sentence not only because of the seriousness of the offences, but also his failure to respond to previous Probation Orders.  Defence counsel had sought a reduction, pointing out his guilty plea, co-operation and youth and the fact that this was not a premeditated assault because de Sousa had not taken a weapon with him but had used a knife from the flat.  The defendant had not meant to harm the victim, but of course she was not to know this and was clearly terrified.  The Court had taken de Sousa's very difficult background into consideration.  After taking all the mitigating factors into account, particularly his youth, the Court felt able to reduce the conclusions slightly.  The Court then considered whether to make a recommendation for deportation, which they found very difficult.  De Sousa had a poor record during the short time he had been in Jersey, which suggested it was not in the Island's interest that he should remain over here.  He had already been warned by Immigration that if he got into any further trouble, there was a good possibility that he would be deported.  However, he was only 19, his mother and sisters lived here and there was no immediate family in Portugal.  In the circumstances, bearing in mind the European Convention on Human Rights, although this had not yet become law here, the Court decided, somewhat reluctantly, not to recommend deportation.  The Court made it clear that if de Sousa came before it again, it was almost certain that he would be deported.

 

 

J.C. Gollop, Esq., Crown Advocate;

Advocate D. Gilbert for the Defendant.

 

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.    This must have been a frightening assault; the defendant held a 10" knife to his former girlfriend's neck; threatened to harm her and did in fact harm himself over quite a lengthy assault.

 

2.            The defendant came to Jersey in 1996.  Since that time he has been before the Court on numerous occasions.  He has been placed on probation and has breached those probation orders several times.  He is only 19 years old but we are quite satisfied that there is no alternative to a prison sentence because of the seriousness of this offence and because of his failure to respond to previous probation orders.

 

3.            His counsel has asked us to reduce the sentence.  She has relied upon his guilty plea, his co-operation, his youth, and the fact that the assault was not premeditated as is shown by the fact that the knife was picked up from the kitchen after his arrival at the flat.  Miss Gilbert relied upon the fact that he did not intend to harm the victim, although the latter was not to know that at the time and was clearly terrified.  Miss Gilbert has also referred to the defendant's very difficult background.

 

4.            Taking all these factors into account, but most particularly his youth, we are prepared to reduce the conclusions slightly.  On count 1, the sentence will be 2 years' youth detention; on count 2, 2 months' youth detention, concurrent, making a total of 2 years' youth detention.  The Court must warn the defendant that he may be subject to supervision at the time of his release.

 

5.            We have next to consider the question of whether we should recommend his deportation. The Court has found this very difficult, as can be seen by the length of time we retired.  His poor record in the few years he has been here suggests it is not in Jersey's interest that he should remain.  Furthermore, on 29^th June, 2000, he was warned by the Immigration Department, following his last conviction, that, if he got into trouble again, he might well be deported.  We have taken into consideration the fact that he is only 19, his mother and sisters are in Jersey, and he has no immediate family in Portugal.  In the circumstances, particularly bearing in mind - although it is not yet part of our law - the European Convention on Human Rights, we have reluctantly come to the conclusion that we should not recommend his deportation.  However, if he comes before the Court again for a serious offence, then, despite the matters I have just described, a recommendation for deportation will be that much more likely.  He must realise that if he re-offends, when he is released, there is every likelihood that he will be sent back to Portugal.

Authorities

 

 

Immigration Act, 1971.

 

Immigration (Jersey) Order, 1993.

 

R. -v- Nazari (1980) 3 All ER 880.

 

A.G. -v- Leitch (21^st August, 1998) Jersey Unreported.

 

A.G. -v- Letchford (6^th September, 2000) Jersey Unreported.

 

A.G. -v- Comer (11^th October, 1999) Jersey Unreported.