Jersey Unreported Judgments

2001/86B

ROYAL COURT

(Samedi Division)

20^th April, 2001

The Attorney General

-v-

Ernesto Lopes de Freitas

Age:     27

Plea:    Guilty

Details of Offence:

de Freitas approached his former girlfriend and her new boyfriend outside licensed premises in St. Helier.   He spoke with his former girlfriend for a short while then departed.  The ex-girlfriend and her boyfriend then walked to their home address and, as they approached, they noticed that de Freitas was waiting for them.   de Freitas became aggressive and abusive, and, without any provocation, headbutted the new boyfriend.   The victim sustained a small laceration to the bridge of his nose and a non-displaced nasal fracture.   Following the assault, de Freitas ran off, leaving behind him his baseball cap.   He was subsequently arrested and, whilst he admitted that he had spoken with his ex-girlfriend, he denied going to her home address and also denied assaulting the victim.   He maintained that both his ex-girlfriend and her new boyfriend were lying to cause him problems.   He admitted that the baseball cap, which was found at the scene of the assault, belonged to him, but claimed that he must have dropped it when he spoke to his ex-girlfriend earlier and that she had taken it with her back to her home address.   de Freitas claimed that he had consumed approximately 9 pints and, therefore, had been too drunk to be involved in any such incident.   The Magistrate's Court accepted jurisdiction to deal with the case, subject to being able to remand the case to the Royal Court for sentencing.   de Freitas was not legally represented, despite being advised to seek legal advice.   The Magistrate's Court heard evidence from witnesses, including de Freitas, and found him guilty as charged.   Before the Royal Court for purposes of sentencing, the Crown contended that the aggravating factors were that the attack was totally unprovoked and that it had taken place in a public place.   de Freitas was intoxicated and had deliberately gone to his former girlfriend's address with the intention of waylaying her and her new boyfriend either before or at that address.   de Freitas had previous convictions for violence, including one in 1999 which involved the use of a headbutt.   de Freitas had maintained his denial of guilty, even following his conviction, and there were no expressions of remorse or regret on his part.

Details of Mitigation:

The Social Enquiry Report revealed that de Freitas had had a less than privileged upbringing and had effectively been abandoned at a very early age by his parents.   It was acknowledged that he had a previous criminal record, but there was one matter in his favour, which was that he had a consistent work record for the last 12 years.   He had never received a custodial sentence before and it was suggested that a Community Service Order could be imposed as an alternative to custody, which would punish him but also allow him to maintain his employment record.   This would also enable him to meet the Compensation Order sought by the Crown on behalf of the victim.   The proceedings before the Magistrate's Court had revealed a dispute about to the paternity of his daughter with the ex-girlfriend, which was the first occasion that this matter had been raised.  There had also been a delay in the  proceedings before the Magistrate's Court and that, save for one occasion when he failed to appear, the delay of approximate 8 months was not due to any other failings on the part of de Freitas.

Previous Convictions:

9 previous appearances before the Magistrate's Court, involving offences of grave and criminal assault, common assault, possession of cannabis, offences of larceny, and minor motoring offences.

Conclusions:

9 months' imprisonment; compensation order in favour of victim: £750 or 2 months' imprisonment in default of payment, consecutive.

Sentence and Observations of Court:

This was an unprovoked assault on the boyfriend of the former girlfriend whereby de Freitas had headbutted the victim, causing an undisplaced facture to the nose.   This was not the first time that de Freitas had used violence.  He had 2 previous convictions and the offence in 1999 had also involved de Freitas' headbutting the victim.   There was no credit for a guilty plea, as de Freitas had maintained a plea of not guilty throughout and had been found guilty by the Magistrate's Court.   Advocate Pirie on behalf of the Defence had drawn the Court's attention to 3 specific matters:  (1)  the case was at the lower end of the scale for grave and criminal assaults and involved only one blow;   (2) there was de Freitas' unfortunate background as set out in the Social Enquiry Report from which it appeared that he had been abandoned by his parents, but, to his credit he had a very good work record;   (3)  it was most unfortunate that it had taken 8 months to bring this case to a conclusion, and the Court had taken into account the question of delay when considering the appropriate sentence.   However, the Court was quite satisfied that there was no alternative to a custodial sentence and, whilst the Court had some reservations initially as to whether the Conclusions sought were appropriate, on balance was persuaded that the Crown's Conclusions were correct and therefore a sentence of 9 months' imprisonment was imposed.   The Court also made a Compensation Order in the sum of £750, with a default term of 2 months' imprisonment, and de Freitas had 6 months from the date of his release from Prison to make the Compensation Order.

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

Advocate R.J.F. Pirie for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        de Freitas, this was an unprovoked assault on the boyfriend of your former girlfriend involving a headbutt which lead to the victim suffering an undisplaced fracture of the nose. It is not the first time that you have used violence.  You have two previous convictions including one in 1999 when you again headbutted your victim for which you were placed on probation.   Neither do you have the benefit of a guilty plea because you have pleaded not guilty before the Magistrate.   The Magistrate found you guilty and committed the case to this Court for sentence.

2.        However, Mr. Pirie has made a number of points in mitigation.  He says first, this is a case at the lower end of the scale of grave and criminal assaults with only one blow and comparatively minor injuries.   Secondly, your very unfortunate background, as appears from the Social Enquiry Report.  It is quite clear that you were effectively abandoned by your parents but despite this you have a good work record which goes to your credit.   Thirdly, Mr. Pirie refers to the delay in this matter and we agree with him that it is most unfortunate that this case has taken 8 months, notwithstanding that it was decided to try it in the Magistrate's Court.   We take that question of delay into account.

3.        We are however quite satisfied that there is no alternative to a prison sentence.   Furthermore, we gave consideration to increasing the conclusions of the Crown.   But on balance we have been persuaded that the conclusions of the Crown were right and accordingly the sentence of the Court is one of 9 months' imprisonment.   We make a Compensation Order in the sum of £750, with a sentence of 2 months' imprisonment in default, consecutive.   Clearly you will need time to pay and we order that you will have 6 months from the date of your release in order to pay that £750.

Authorities

Mallet -v- A.G. (14th July, 2000) Jersey Unreported; CofA; [2000/134].