2002/116
ROYAL COURT
(Samedi Division)
10th June 2002
Before: |
Sir Philip Bailhache, Bailiff and Jurats Rumfitt and Le Breton. |
José Raul Nobrega
-v-
The Attorney General
Magistrate's Court Appeal.
Application for leave to appeal out of time and appeal against total sentence of 7 months' imprisonment, passed on 23rd April 2002, following
(1) A guilty plea to 1 count of assault, on which count a sentence of 3 months' imprisonment was passed; and
(2) Admitted breach of a 2 year probation order, made on 19th July 2001, following a guilty plea to 1 count of grave and criminal assault.
Leave to appeal out of time granted; appeal dismissed.
Advocate R. Juste, for the appellant.
C. Yates, Esq., Crown Advocate.
JUDGMENT
THE BAILIFF:
1. This is an appeal by José Raul Nobrega against a sentence of 7 months' imprisonment imposed in the Magistrate's Court for 2 separate offences involving violence against the appellant's wife. The first offence was one of grave and criminal assault for which the appellant was originally placed on probation on 19th July, 2001. The second offence was one of common assault committed on 23rd February, 2002.
2. The facts of the assaults may be summarised in this way: so far as the grave and criminal assault is concerned, the appellant became jealous of attention paid to his wife by a third party and grabbed hold of the wife around the throat and pushed her to the floor. It appears that the appellant placed a screwdriver against her neck for about 10 - 15 seconds, gradually increasing the pressure and causing a puncture wound.
3. The second offence of common assault resulted from an argument between the parties when the appellant had pointed a finger at his wife who had responded in similar fashion. At this, the appellant had lost his temper and head butted his wife in the face. The blow caused bruising and split her lip.
4. Before the Magistrate's Court the appellant was sentenced on 23rd April to four months' imprisonment for the grave and criminal assault in respect of which he had originally been placed on probation and to three months' imprisonment, consecutive, for the subsequent common assault. When he appeared before the Magistrate's Court the appellant was represented by counsel, the Magistrate was in possession of a comprehensive social enquiry report and a further note also prepared by the probation service.
5. Miss. Juste, who appeared for the appellant, submitted first that the sentence was manifestly excessive and secondly that the Magistrate was not in possession of sufficient detail in relation to the three young children of the family. So far as the first submission is concerned, a sentence totalling seven months' imprisonment for these two assaults was plainly not manifestly excessive. As the Magistrate rightly said, domestic violence of this kind is inexcusable and, to the credit of the appellant, he too accepted that his behaviour should not be tolerated.
6. So far as the second submission is concerned, we have examined carefully a supplementary letter from the Children's Service which was placed before us by counsel for the appellant. This letter sets out in more detail the wife's alleged involvement with drugs and her deficiencies in relation to the care of the children and indicates that the Children's Service would support an application by the appellant for care and control of the children.
7. But it seems to us that in essence all this information was before the Magistrate when sentence was imposed. The issue of who was to care for the children was clearly considered by the Magistrate, as well as all the other material factors of the case. We are glad to note that arrangements have been made for the appellant to have access visits by his children. The domestic situation is clearly not so serious as to lead the appropriate authorities to apply for fit person orders in respect of the children and we have therefore concluded that the children are not at the present time at risk.
8. So far as the assaults are concerned the Magistrate's decision was well within the proper limits available to him and in our judgment could not be described in any way as manifestly excessive. The appeal is therefore dismissed.
Authorities
Sangster -v- AG (29th April 2002) Jersey Unreported CofA; [2002/87]
Pipon -v- AG (16th August 1999) Jersey Unreported; [1999/143]
AG -v- Kernan (29th September 2000) Jersey Unreported; [2000/191]