Jersey Unreported Judgments

[2003]JRC189

ROYAL COURT

(Samedi Division)

 

23^rd October, 2003

 

 

The Attorney General

-v-

Ricardo Jorge Encarnacao Dias

 

Sentencing by the Superior Number of the Royal Court, to which the defendant was remanded by the Inferior Number on 29^th August, 2003, following a guilty plea to the following charges:

 

1 count of:

Grave and criminal assault

 

Age:     30.

 

Plea:    Guilty.

 

Details of Offence:

Serious attack - use of 3ft scaffolding pole.  No apparent provocation.  Very serious injuries, inter alia, fractured skull, surgery.  Resulting personality change.  No apparent remorse.

 

Details of Mitigation:

Co-operation in Q & A.  Guilty plea (but inevitable as numerous witnesses).  First time offender.  Blames the incident on victim's personality.

 

Previous Convictions:

None.

 

Conclusions:

6 years' imprisonment; recommendation for deportation (starting point: 10 years).

 

Sentence and Observations of Court:

5 years' imprisonment; no recommendation for deportation.  Offence out of character and no real premeditation.  No further evidence of victim's condition at moment.

 

N.M. Santos-Costa, Esq., Crown Advocate.

Advocate J. Bell for the defendant.

 

 

JUDGMENT

 

THE DEPUTY BAILIFF:

1.        This was a very serious assault.  Following some form of verbal altercation at work the defendant left the room and returned with a three foot metal pole, being part of a scaffolding pole.  He held the pole with both hands, swung it over his head and brought it down to strike the victim on the front of his head.  The victim fell to the ground and the defendant was restrained by two fellow employees but continued to kick out at the victim.

2.        The victim was a supervisor at the defendant's place of work.  It is clear there had been difficulties between them in the past.  The altercation that morning arose out of the fact that the duty rota pinned on the board showed the defendant working in a team with the victim and it was this which led to an exchange of words between them immediately before the defendant left the room in the way we have described.

3.        Whatever was said and whatever the history between them nothing could justify the assault in this case.  The consequences for the victim have been serious.  He sustained a fractured skull with associated swelling of the brain.  He was flown to Southampton a few days later for surgery.  We have been told that he is undergoing further surgery in Southampton today.  He has facial scarring.  Furthermore he says, in a statement, that he suffers from depression and nightmares.  He says that he is a changed character, has become aggressive with his family and friends and finds it difficult to control his anger.  In short, it would appear that he has suffered a form of personality change although the Court does not have any evidence before it on the long term prognosis on these aspects.

4.        The Crown has raised with the Court the vexed question of starting points.  We must therefore deal with the issues raised by the Crown.  Historically the Court has never used starting points in any cases other than drug cases.  However in Mallet (2000) JLR 256, the Court of Appeal indicated that it was desirable to fix a starting point in cases of grave and criminal assault.  In the recent case of Harrison [2003] JRC161 the Court, differently constituted, has queried whether the Court of Appeal in fact had starting points in mind or whether it was simply focusing on a comparison between the sentence after a trial and that following a guilty plea.  But for today's purposes we are willing to assume that the Court of Appeal did indeed have starting points in mind.

5.        The question whether starting points are appropriate for non-drugs offences appears never to have been the subject of argument before the Court of Appeal.  As the Crown submitted to us today, there are a number of arguments which militate against the use of starting points in cases of grave and criminal assault.  In view of the fact that the Royal Court has, on several occasions, made clear that it has considerable difficulty in applying the concept of a starting point in non-drug cases, we very much hope that a suitable case can be taken before the Court of Appeal at which the matter can be thoroughly ventilated, the Crown can have an opportunity of putting forward its submissions and an authoritative view can be obtained.  For our own part, the members of this Court remain of the view that the concept is very difficult to apply in non-drug cases.  Some of the reasons why this is so are as follows:

6.        First, in drug cases, there are comparatively few variables in the offence itself.  The structured guidance given by the Court of Appeal in cases like Rimmer [2001] JLR373 is therefore of very great assistance.  But in cases like grave and criminal assault, the circumstances of the offence are infinitely variable and it is therefore very difficult to fix a starting point bearing in mind that this will undoubtedly be used as a comparator in subsequent cases.

7.        Secondly, in Mallet, the Court of Appeal encouraged this Court to look to English sentences for guidance in cases of assault.  This, of course, simply reflects existing practice, where there is insufficient guidance to be obtained from Jersey decisions.  But the difficulty with this is that the English courts do not use starting points.  One therefore has to work backwards from the English sentence and try and guess what the starting point would have been if the English Court had thought of such a thing.  This seems to us a very perilous path.  How can we know how much the English court allowed for the mitigation in a particular case?  We might well fix upon a very different starting point to that which the English court itself would have articulated had it applied its mind to the matter.  In effect it has simply to be guesswork.

8.        Thirdly, there is great scope for confusion.  In Mallet itself, the Court of Appeal referred to the sentencing bands in Blackstone's Criminal Practice (2000 Edition) section B which gave various brackets of up to eight years.  It is clear that the figures for these brackets were the finishing points, i.e. the sentence actually imposed after mitigation.  Yet at paragraph 19 of its judgment the Court of Appeal says:

'Based on what we have quoted from Blackstone, it follows that the starting point in cases of grave and criminal assault where there is clearly an intent to cause serious harm, should be up to eight years'.

9.        In other words the Court took as a starting point something which in Blackstone was a finishing point.  We would endorse the comments in Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edn): paragraphs 593 to 612 on the difficulties of the decision in Mallet and the difficulties of reconciling it with the subsequent decision of the Court of Appeal in Le Monnier [2000] JLR396.

10.      Fourthly, the starting point is fixed by reference solely to the facts of the offence.  It was made clear in Mallet that it is before any mitigation related to the personal characteristics or circumstances of the offender, including whether he has a previous record.  Thus in the case of a grave and criminal assault the Court, in fixing a starting point, must decide what the sentence would have been on a not guilty plea had the offender been one with no personal mitigation whatsoever.  So, for example, one must assume in the case of this assault, that it was committed by the worst offender one can envisage, perhaps a man with a long violent past, who had even been a professional enforcer for a major criminal gang but who, on this occasion, committed this offence in these particular circumstances.

11.      Sentencing is an art not a science.  It requires the Court to fix on the right sentence having regard to the offence and the offender.  It is not something that can be done in the abstract.  Yet on the starting point methodology, the Court has to decide what sentence it would pass if exactly the particular offence before it were committed by someone completely different, who is not before the Court.  With all respect to the Court of Appeal, this seems to be a very difficult and hypothetical exercise.  Sentencing is difficult enough as it is and the Court can only really concentrate on the correct sentence for the offender before it, not the correct sentence for some hypothetical offender who is not before it.  Furthermore there is a real risk of a starting point reached in such circumstances being found later to be erroneous (because it is only a hypothetical exercise) and therefore causing difficulty in a later case when, for example, a person with the characteristics of the hypothetical offender we have described is actually before the Court.

12.      As we say, we hope very much that this whole issue can be fully argued before the Court of Appeal as soon as possible.

13.      Returning to the facts of this case, Mr Bell has put forward a number of matters in mitigation.  He has referred us to the defendant's guilty plea; the defendant was cooperative at interview and entered a guilty plea at the earliest opportunity.  This stands him in good stead.

14.      Secondly, he is a man with no previous convictions.  More than that, he has a positively good character in the sense that, amongst other matters, he has always been employed since he came to the Island and we have read the reference from his landlady.  As to the offence itself and the circumstances in which it was committed, Mr Bell points out that it was not premeditated, was a single blow and it is clear that it was out of the ongoing difficulty in the relationship between the victim and the defendant.  Mr Bell pointed to the conclusions of the psychologist in the Psychological Report, that the defendant is an introvert who bottles things up and on rare occasions this may lead to tension escalating to an uncontrollable level when he will act suddenly and unpredictably.  However it is clear that this is out of character because the defendant has not committed any offences previously. 

15.      Mr Bell submits that the defendant is remorseful.  We accept that there is some remorse on his part but we have regard to the contents of both the Social Enquiry Report and the Psychological Report and in particular paragraph 13 of the Social Enquiry Report which suggests that the level of remorse is certainly not at the high level which the Court sees in some cases. 

16.      We have been referred to a number of other cases.  The Crown referred us to Prior (17^th January, 2002) Jersey Unreported; [2002/11] but we consider that that was a more serious case.  We were also referred in passing to Mallet and Le Monnier.  Mr Bell referred us to Nozedar (25^th October, 1985) Jersey Unreported; [1985-86] JLR N.2, where for a blow with a blunt instrument which led to the loss of one eye, a sentence of eighteen months' was passed.  It is clear there was strong mitigation in that case and there was a history described as one of cumulative provocation.  Even taking that into account and the fact that the sentence was back in 1985, the sentence could be said to be on the low side.  We were also referred to Gooding [2003] JRC035 where there was a blow on the head with a bottle of wine.  Two of the Jurats in this Court sat on that case and they point out that the circumstances were very different and the mitigation was very powerful in that case.  It is always difficult when simply looking at a report to know the full facts but certainly this Court is of the view that the offending in that case was less serious than this one given the nature of the weapon used, quite apart from any difference in mitigation available.

17.      Taking all the factors into account we conclude that the Crown's conclusions are too high and we think that the correct sentence is one of five years' imprisonment.  In assessing the starting point we find it difficult to know what sentence we would have imposed upon the worst possible offender for this offence but we see no reason to differ from the Crown's suggestion of ten years and we think that a deduction of five years adequately reflects the available mitigation.

18.      As to deportation, we have taken into account the fact that this was wholly out of character.  The defendant is a first offender, he has an excellent work record so that he is contributing to the community and he has a settled personal life.  Taking all these factors into account we do not think it necessary to recommend deportation in this case but we warn the defendant that if he were to re-offend, deportation would be a real likelihood.

19.      The sentence is one of five years' imprisonment.

Authorities

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Edition): pp. 240-261: paras 593-612

Attorney General's Ref No. 132 of 2001 [Johnson] [2003] 1 Cr. App. R (S) 41.

A.G. -v- McCormack [2003] JRC 030

Thomas: C.S.P. A2-2A: General Con Gi Durations

A.G. -v- Nozedar (25^th October, 1985) Jersey Unreported [1985/88]

A.G. -v- Gooding [2003] JRC 035

A.G. -v- Mallet (24^th May, 2000) Jersey Unreported; [2000/87]

Mallet -v- A.G. (2000) JLR 256

A.G. -v- Prior (24^th July, 2001) Jersey Unreported; [2001/156]

Prior -v- A.G. (17^th January, 2002) Jersey Unreported; [2002/11]

R -v- Nazari [1980] 3 All ER880

R (on application of Samaroo) -v- Home Secretary [2001] EWCA 1139

A.G. -v- Harrison [2003] JRC 161

Rimmer -v- A.G. [2001] JLR 373

Blackstone's Criminal Practice (2000 Ed'n): section B.

Le Monnier -v- A.G. [2000] JLR 396