Jersey Unreported Judgments

 2002/25

ROYAL COURT

(Samedi Division)

 

25^th January 2002

 

 

The Attorney General

-v-

Nuno Miguel Mendes

 

1 count of:	Conduct likely to cause a breach of the peace by fighting. (count 1);
1 count of:	Grave and criminal assault. (count 2);
1 count of:	Robbery. (count 3);
1 count of:	Possession of a controlled drug, contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law 1978: Count 4: cannabis.

 

[On 21^st December, 2001, the Crown accepted a plea of not guilty to count 2].

 

Age:     28.       

 

Plea:    Guilty.

 

Details of Offence:

Count 1: breach of the peace.  On 20^th May, 2001, Mendes was walking home having been out drinking with his wife and some acquaintances.  Mendes, who had consumed four whisky and cokes, made a derogatory remark to some of his acquaintances.  A fight ensued involving Mendes, two males and a female, all of whom, with the exception of one of the males, received minor injuries.

 

Count 2: grave and criminal assault.  The charge of having committed a grave and criminal assault on Miss Bolton on 4^th July, 2001, was withdrawn by the prosecution when Mendes entered a plea of guilty to robbery (see count 3 below) in the Royal Court on 21^st December, 2001.

 

Count 3: robbery.  In the early hours of 4^th July, 2001, Mendes broke into a property occupied by Miss Bolton, a single female in her twenties, using a "crow bar" type implement.  Mendes had resided at this property in June/July, 2000, at the invitation of the then tenant who had taken pity on him  when she had learned that Mendes, who had arrived in Jersey in May, 2000, had just lost his job and live-in accommodation at a hotel, was sleeping rough.  Miss Bolton, who was asleep and naked in bed, awoke when she heard her bedroom door click open and she saw Mendes looking into her room.  Miss Bolton got out of bed and attempted to push the door shut.  She wrapped herself in a quilt.  Her two dogs who were also in the room awoke and started barking.  Mendes entered the room carrying the "crow bar" type implement and a steak knife and asked Miss Bolton to quieten the dogs.  Mendes asked Miss Bolton for a pillowcase to cover his face and she pointed out that she had already seen it.  Mendes said "ok", produced a small knife from his back pocket and either clicked or flicked open the blade which was 2"-3" in length.  Mendes told Miss Bolton "if you tell anyone I'll kill you" at the same time waving the smaller knife in the air whilst holding the steak knife in his other hand.  Mendes asked Miss Bolton "where's Jeannette" (Miss Hogan the previous tenant).  Mendes told Miss Bolton that he had telephoned Jeannette earlier that evening and that she had asked him to come round.  In fact, Mendes had called Miss Hogan the previous evening when she had told him she did not want to see him.  Miss Bolton explained that Jeannette had moved to a new address and had taken her telephone number with her.  Mendes demanded money, grabbed two handbags belonging to Miss Bolton and tipped the contents on to the floor.  No money was found in either bag.  Miss Bolton then took her purse from her work bag and handed £85 in cash to Mendes.  Mendes removed Miss Bolton's bank cards from the purse and demanded the "pin" numbers and details of amounts held in her bank accounts.  Mendes and Miss Bolton then went downstairs to the lounge in order to find a pen to write out the "pin" details.  Miss Bolton was still wrapped in a quilt and Mendes told her to sit next to him on the sofa saying "I won't touch you".  The "pin" numbers were written down and then Mendes took Miss Bolton back upstairs to her bedroom.  Mendes then proceeded to ransack the room, searching through drawers.  He found a silver ankle chain and asked Miss Bolton if she possessed any gold jewellery to which she replied that she only wore silver.  Mendes continued searching the bedroom and appeared to become irate.  Miss Bolton slipped on some clothing and Mendes noticed that she was trying to conceal a set of car keys in her hands and told her "you're going to drive".  Mendes picked up the "crow bar" type implement from the floor and went into the bathroom where he placed it in the bath and started running the taps.  Seeing that Mendes was occupied with his back to her Miss Bolton decided to escape.           She ran to her neighbour's house and reported that a male had broken into her property and was carrying two knives.  The whole incident had lasted approximately 30 to 40 minutes and Mendes was arrested an hour later trying to thumb a lift from a passing police vehicle.  A small pocket knife, which had been accurately described by Miss Bolton, was found in his trouser pocket.  The steak knife was not recovered (the prosecution believe that it was discarded between the time that Mendes fled the property at 5.30 a.m. and the time that he was arrested at 6.30 a.m.).  Both the cash and the bank cards were recovered.

 

Count 4: possession of cannabis resin.  A small amount of cannabis resin in a partly smoked "reefer" was recovered whilst the police were searching Mendes' home address on 4^th July, 2001.  (79mg. of no commercial or street value).

 

Aggravating factors:  Intrusion into victim's home; vulnerable - female alone in her home; took place at night; incident lasted approximately 30-40 minutes; weapons present in the form of two knives; the smaller knife was waved around when Mendes issued his verbal threat and the steak knife, which Mendes had in his possession throughout the whole of this incident (30-40 minutes), was waved around in the air at various times in a threatening manner; Mendes threatened victim: "If you tell anyone, I'll kill you"; Mendes was intoxicated; victim's bedroom was ransacked; Mendes has a previous conviction for grave and criminal assault for which he was given 1 year's probation and was in breach of the Probation Order imposed by Magistrate's Court on 8^th November, 2000.  Details of the effect of this incident on Miss Bolton was set out in a confidential victim impact statement prepared by Dr. Hollywood.

 

Factors which support deportation recommendation

1.     Mendes has previous convictions in Portugal for theft.

2.     First came to Jersey in May, 2000.

3.     On 10^th September, 2000, committed a grave and criminal assault on male which led to his conviction in the Magistrate's Court on 8^th November, 2000.

4.     On 20^th May, 2001, committed a breach of the peace by fighting (subject of count 4 above).

5.     On 4^th July, 2001, committed very serious offence of robbery (subject of count 3 above).

6.     Both offences described in paragraphs 4 and 5 above were committed whilst Mendes was on probation by Magistrate's Court.

7.     The Probation report indicates that Mendes is at a high risk of re-offending due to unemployment, drug and alcohol abuse and anger management problems.

 

 

Details of Mitigation:

Guilty plea, albeit relatively late; this meant that there was no need for the victim or Mrs Hogan to give evidence (the prosecution attached great weight to this factor); plea was entered before Christmas allowing the victim to enjoy the holiday season; there had been no lunging of either knife towards the victim; no actual injury caused; only a small amount of money taken (although this was fortuitous as there was only a small amount of money at the premises); remorse (see paragraphs 14 and 18 of the Probation report).

 

Mendes withdrew the accusation that he was collecting a drug debt from Miss Bolton and admitted in Court that he had never met Miss Bolton before.

 

Factors which militate against deportation recommendation

The effect of such an order on innocent third parties, in this case Mendes' wife and stepchildren.  Mendes is married to a Jersey resident (the marriage took place on 23^rd February, 2001, in Portugal).  There are three stepchildren aged 21, 17 and 11 from his wife's previous relationship.  The wife and 17 year old stepchild wrote eloquent letters to the Court requesting it to refrain from making a recommendation that Mendes be deported.

 

Previous Convictions:

In Portugal

The prosecution was unable to obtain the official record of previous convictions committed in Portugal and relied on Mendes' description of his previous convictions set out in paragraph 7 of the Probation Report, namely that Mendes did not have any previous convictions for trafficking in drugs but had offended in the past in order to obtain money to purchase drugs, mainly by breaking and entering public houses and stealing cash and a conviction for the theft of £150 worth of fish.

 

In Jersey

Mendes appeared in the Magistrate's Court on 8^th November, 2000, charged with grave and criminal assault on a male by punching him causing the loss of three upper front teeth.  Sentenced by Magistrate to 1 year's probation with 70 hours' community service.

 

Conclusions:

Count 1:	£200 fine or 7 days imprisonment in default of payment, consecutive to sentences imposed on counts 3 and count 4.
Count 3:	4 years' imprisonment.
Count 4:	£200 fine or 7 days imprisonment in default of payment, consecutive to count 3.

Deportation Order on completion of sentence.

 

Sentence and Observations of Court:

Conclusions granted, but default sentences on counts 1 and 4 to run concurrently with each other and with sentences passed on count 3.

Recommendation for deportation to be made to the Lieutenant Governor on completion of sentence.

 

 

P. Matthews, Esq., Crown Advocate.

Advocate H.M. Boléat for the accused.

 

 

 

JUDGMENT

 

THE BAILIFF:

1.        This was a serious offence of robbery which must have caused extreme anxiety and, indeed, fear to the victim.  This young woman awoke in the early hours of the morning to find the accused entering her bedroom.  She was unclothed and vulnerable.  He demanded and obtained money while ransacking the room.  He threatened her with a steak knife and told her that if she told anyone, he would kill her.  Later, he produced another, smaller knife.  He was also carrying a crow bar, which he used to break into the property.  The accused took her bank cards and demanded to know the pin numbers.  He searched her personal papers and took her jewellery, demanding to know if she had any gold.  The incident lasted about 40 minutes and was brought to an end only when the victim managed to run out of the house and to seek refuge with a neighbour.  The accused was arrested by the police later that morning.

2.        When interviewed by the police, Mendes gave a false story that he had known the victim and that she owed him £160 in respect of a drug debt.  He, thus, added insult to the injury he had caused by attacking her reputation as well.  To his credit, that false story has been withdrawn today and he acknowledges that the victim was a complete stranger to him and, moreover, that she has a blameless character. 

3.        In mitigation, Mendes has now pleaded guilty to the offence.  Counsel for the defendant did not argue that the conclusions were wrong.  In fact, in our judgment, the conclusions give full weight to all the mitigating factors.  They are, accordingly, granted and Mendes is sentenced to 4 years' imprisonment on count 3 and fined £200, or 7 days' imprisonment in default of payment on each of counts 1 and 4, but the default sentences will be concurrent, thus making, in effect, a total of 4 years' imprisonment. 

4.        We turn to the question of deportation.  The Court has previously adopted the approach recommended by the English Court of Appeal in R -v- Nazari and other cases [1980] 3 All ER 880.  The first stage is to ask ourselves whether the accused's continued presence in Jersey is to the island's detriment. 

5.        Mendes came to Jersey in May, 2000.  Prior to coming to Jersey, he had committed offences in Portugal and had been convicted, apparently for trafficking in drugs and for theft, although no particulars of those convictions are available.  He was a heroin addict, having been introduced to the drug at the age of 10.  It is said that he has got over his heroin addiction whilst in Jersey, although he is clearly still a user of cannabis.

6.        On the 8^th November, 2000, Mendes was convicted in the Magistrate's Court of grave and criminal assault and sentenced to 70 hours' community service.  On 1^st February, 2001, Mendes returned to Portugal to be married.  He came back to Jersey on the 28^th February and began a labouring job.  On the 20^th May, 2001, he committed the offence of causing a breach of the peace, for which he has been sentenced today.  At the end of May he went back to Portugal for family reasons, returning to Jersey on the 28^th June.  6 days later he committed this very serious offence of robbery, since when he has been in custody.

7.        As to whether his continued presence in Jersey is detrimental to the interests of the community, we have no hesitation in concluding that the answer is in the affirmative.  We have little doubt that there is a high risk that Mendes will commit further offences upon release.  So far as Mendes, himself, is concerned, we have, equally, no doubt that there are very good reasons for recommending deportation.

8.        The more difficult question relates to the second stage, for we must consider the effect which a deportation order would have upon innocent persons, who are not before the Court.  In that connection we have received, and considered carefully, letters from Mrs. Mendes and some of his step children. 

9.        To set this in context it is necessary to examine the background a little more closely. After his arrival in Jersey, Mendes made the acquaintance of a woman who befriended him and with whom he stayed for some weeks at different times until July, 2000.  He remained in contact with this woman until Christmas, 2000, when he telephoned her to tell her that he was getting married to Christine Smith.  As we have stated, they were married in Portugal on 23^rd February, 2001. 

10.      Mrs Mendes, as she now is, has three children from a former relationship including a daughter, aged 20, another daughter, aged 16 and a son, aged eleven.  The elder daughter has a small baby.  The 16 year old daughter is studying at Highlands college and the boy is at secondary school.  It is to be noted that neither Mrs Mendes nor any of her children speaks Portuguese.

11.      This relationship with Mrs Mendes has been of short duration, but both she and her children profess their love and attachment to Mendes and have sent eloquent pleas that a recommendation for deportation should not be made.

12.      We have given these pleas very anxious consideration.  It is not the wish of the Court to break up a family.  We must, however, approach the matter practically.  By the time Mendes has served his sentence, both the elder step children will be adults, indeed the elder step child is already an adult and even the youngest child will be well on his way to adulthood.  It is true that Mrs Mendes will be faced with a difficult choice in that she will either have to go to Portugal and learn that language, or to some other country, in order to remain with her husband, or to be separated from him for a further short period if she chooses to support her son in Jersey during the remainder of his minority. 

13.      On balance, notwithstanding these difficulties, we have reached the conclusion that the strong desirability of repatriating the accused to his home country in the interests of this community outweighs the adverse effect upon Mrs Mendes and her children.  We have considered the case of R -v- Fernandez (see R -v- Nazari and other cases), but in that case Fernandez had been resident in the United Kingdom for many years and his family circumstances were entirely different.  We do not think that the recommendation for deportation is disproportionate and we will, accordingly, recommend  to the Lieutenant Governor that Mendes be deported from Jersey at the conclusion of his sentence.

Authorities

Boultif -v- Switzerland [2001] FLR 1229.

Whelan: "Aspects of Sentencing in the Superior Courts of Jersey" pp 74 and 75.

AG -v- O'Shea (19^th October, 2001) Jersey Unreported; [2001/206A]

AG -v- Vieira (19^th October, 2001) Jersey Unreported; [2001/206B]

Stevenson -v- AG (15^th June 1999) Jersey Unreported CofA; [1999/109]

Gill -v- AG (29^th September 1999) Jersey Unreported CofA; [1999/160]

AG -v- Whiteley (18^th June 1998) Jersey Unreported; [1998/126]

AG -v- Allo and Collins (1983) JJ 85 (CofA)

Immigration Act 1971:s.3(5).

R -v- Nazari and other cases [1980] 3 All ER 880.

AG -v- Monteiro (27^th April, 2001) Jersey Unreported; [2001/90]

Monteiro -v- AG (7^th August, 2001) Jersey Unreported [2001/177]

Royal Court Rules 1992: Rule 3/5.