Jersey Unreported Judgments

 

[2003]JRC230

ROYAL COURT

(Samedi Division)

 

11^th December, 2003.

 

 

The Attorney General

-v-

José Manuel Caboz

 

 

Sentencing by the Superior Number of the Royal Court, to which the Defendant was remanded by the criminal assize on 1st October, 2003, following guilty pleas entered on 2^nd August, 2003, to counts 1, 2, and 4, and following his conviction on 1^st October, 2003, on count 5, and his acquittal on count 3 (count 4 fell away):

 

Count 1:	Assault.
Count 2:	Assault.
Count 5	Attempted murder.

 

Age:     33.

 

Details of Offence:

Caboz attempted to murder his wife on 18^th April, 2002, by stabbing her 5 times.  The other assaults were minor, committed on wife and her brother.  i)  Escalating physical violence utilized by Caboz against Maria over the period of 7 months immediately prior to the attempt to kill;  ii)  the numerous oral threats to kill;  iii)  Premeditation involved the stabbing incident 18^th April, 2002, in particular, theft of the knife from flat day before, and Caboz approaching Maria by gaining access to flat, thus enabling him to launch a surprise attack on her;  iv)  Caboz lying in wait for Maria and David to leave her uncle's flat;  v)  Caboz stabbed Maria without a word 5 times;  vi)  He attempted to murder his wife in front of his 5 years old son, David;  vii)  he left the knife embedded in her back;  viii)  Having stabbed her, he then walked away from the scene, and tried to conceal himself in Howard Davis Park; and  ix)  The severity of the injuries sustained by Maria.

 

Details of Mitigation:

No previous convictions of any significance.  Some remorse expressed in letters to family afterwards (but letters also show he is a danger to wife).  Had difficulties adjusting to wife and son joining him from Madeira; weak character.

 

Previous Convictions:

Speeding.

 

Conclusions:

 

Count 1:	3 months' imprisonment.
Count 2:	6 months' imprisonment.
Count 5:	11 years' imprisonment.

 

 

Sentence and Observations of Court:

 

Count 1:	1 week's imprisonment.
Count 2:	3 months' imprisonment.
Count 5:	11 years' imprisonment.

 

 

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

Advocate R. Tremoceiro for the Defendant.

 

 

JUDGMENT

 

 

THE COMMISSIONER:

1.        Caboz comes before us to be sentenced on 3 counts today following an assize trial.  The most serious of the three counts, of course, is that of attempted murder.  Caboz and Mrs Caboz were married in Madeira in 1991.  Eventually they settled in Jersey and obtained accommodation at 69 Colomberie.  It was, as far as we can see, a volatile marriage which deteriorated.  One of their two sons, David who was then 5, came to live in Jersey with them.  He had been born in 1996.

2.        Crown Advocate Santos-Costa has outlined certain facts relating to some of the background events where the words "I will kill you" were used by Caboz.  Those facts are in many material points not accepted by the defence and I shall need to say something about that at a later stage of this judgment.

3.        The first count involved one or two punches to the face of Mrs Caboz's brother Miguel Pombo on the 18^th February, 2002.  Whether he was punched once or twice, he was punched, in an incident in which Mr Pombo was not in any way aggressive.  Now that charge on its own might well not have come to this Court. 

4.        The second count arose over a dispute on money.  Mrs Caboz was punched at least 3 times.  There was medical evidence.  We heard of other domestic violence, not all of which was accepted by the defence, and a threat was apparently made to his cousin that Mrs Caboz would feel sorry when he got out of prison.

5.        He was technically barred from 69 Colomberie.  I have to say that the incidents are not and have never been accepted by Caboz.  The matrimonial violence and the threat to kill were strenuously denied.

6.        We do, however, have events leading up to the attempted murder.  Caboz had behaved very strangely on the 16^th April.  The Prosecution alleges that a knife was missing from a kitchen drawer before the incident took place.  According to the Prosecution evidence when Mrs Caboz, at 6.15 in the morning, walked down from her Uncle's flat on Mont Millais where she had been staying for safety reasons she said, to 69 Colomberie, Caboz was apparently following them.

7.        The incident was both terrifying, and in fact serious, and Crown Advocate Santos-Costa put it this way in his address to us, he said -

"At this point in time the front door opened behind her, Maria turned and Caboz without saying a word took a 7 inch kitchen knife out of the inside pocket of his jacket and stabbed Maria in the face and then twice in the arm and then twice in the back as she cowered in front of him to protect herself.  Maria recognised the knife he used as the one that had gone missing the day before.  Caboz then walked away towards Howard Davis Park without speaking leaving the knife lodged deep in her back.  Whilst Caboz was launching his attack on Maria, she was screaming and so was David, who witnessed the attack and saw his mother injured in the aftermath.  The screams of Maria and David were heard by a number of witnesses. 

Carlos Teixeira lives with his wife Irene on the front ground floor flat at 69 Colomberie.  They heard the screaming of David and Maria, and then heard banging on their door as Maria called for help.  They saw that she had been stabbed, and that the knife was still embedded in her back.  She stated "He's going to kill me, he's going to kill me". David appeared "stunned".  Carlos Teixeira removed the knife from her back and rang the landlord Alfredo Sanchez.  The Police and Ambulance services were called.

8.        Caboz was arrested crouching in bushes in the Howard Davis Park and he admitted stabbing his wife but he only admitted stabbing her on one occasion, at that time.  The injuries that were suffered were very serious.  The photographs graphically illustrate the seriousness and the report of Dr Kneife annotates them:

"There were 5 stab wounds: 

3 cm in length transverse wound (horizontal) at the right cheek below the eyelid. 

Two wounds on the left arm (at the anterior aspect)  one of which was vertical measuring 1 cm in length and close to the (armpit).  The second one was transverse and measured 2.5 cm in length was just lateral to the previous one. 

One vertical wound over the left scapula (shoulder blade) measured 3 cms in length and was actively bleeding.  There was swelling above this wound.

There was a transverse wound just medial (inside) the right shoulder blade which measured 3 cm in length.

Small right sided pneumothorax (air in the pleural cavity) and moderate haemothorax (blood in the pleural cavity).

Small left pleural effusion (fluid in the pleural cavity).

Bruising to the right cheek and lateral conjunctival ecchymosis right eye.  (These injuries were of delayed onset and were noted on 20^th April, 2002, during the hospital stay).

9.        The victim impact statement again makes for sad reading.  Mrs Caboz has moved to a Refuge in the South-East of England and is being found alternate accommodation there.  There is, of course, no strong Madeiran community in that part of the world as there is in Jersey.  She has recurrent nightmares.  She says she is constantly in fear, and clearly the offence has affected 7 year old David who is living with her; and that effect, of course, may stretch into the future.

10.      It has to be said that Caboz has no previous convictions.  That must be in his favour despite the allegations of escalating physical and verbal violence during the marriage.  His letters, written since he has been in custody, have been analysed by Professor Coid, the Professor of Forensic Psychiatry at Barts in London.  Professor Coid wrote on the 21^st July, to Advocate Martin:

"Thank you for your letter of the 11^th July and the translated letters by Mr Caboz whilst in custody which I have now read.

I was rather surprised that the defence is going to raise them during the trial (and I say here that in fact they were not raised during the trial) as they caused me some concern about the potential dangerousness of Mr Caboz towards his wife in the future.  I suspect the fact that he repetitively states that he did not intend to kill her is the reason that they will be submitted but I was struck more by the histrionic quality of these letters, the constant self-justification, and the tendency to blame others for his plight. Most importantly, Mr Caboz seems compelled to insert phrases and sentences which constitute overt threats to his wife, his wife's uncle, and his brother-in-law.  He makes it entirely clear that he believes he will not be imprisoned for ever and the inference is clearly that they will see him again and that there will be consequences for the "hell" they have put him through.  The element of jealousy is more apparent in these letters than the ones I have previously seen with allegations that his wife has been having an affair with a man named Jose.  The problem is that it is not possible to know whether in fact there is any truth in this allegation.

It might be worth asking the translator whether it is appropriate within the defendant's home culture to refer so overtly to sexual intercourse with his wife when writing to his son (who is still a minor) and to his mother-in-law.

In conclusion I find these letters worrying for the future as Mr Caboz appears to be making at times thinly veiled, and at other direct threats towards his wife, uncle and brother-in-law and with a strong sense of "unfinished business".

I can confirm the contents of these letters does not give me any reason to review my opinion on Mr Caboz.".

11.      The Crown has examined many cases including that of Le Feuvre -v- Attorney General (24^th April, 1996) Jersey Unreported; [1996/79] which went to the Appeal Court.  In that case the Court said this:

"The Inferior Number expressed itself in this way in relation to the seriousness of domestic violence:

"Violence in the home is often more terrifying and socially unacceptable, in our view, than violence on the streets, and we have to ask ourselves why violence by a husband to a wife should be regarded as any less serious than for example unprovoked street violence or violence after an altercation between strangers in a public house.  This Court will not distinguish between these forms of violence.

We endorse the view expressed by the Inferior Number that unlawful domestic violence is at least as serious an offence as unlawful violence committed in the street between strangers."

12.      The only case in Jersey of attempted murder is that of Mitchell referred to in Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n) at para 633 which was a serious offence and merited 14 years' imprisonment but when one looks at it, that is explained by the fact that it combines the grave and criminal assault with the sexual offence that was committed at the time.

13.      The Attorney General -v- Prior (24^th July, 2001) Jersey Unreported; [2001/156] was a serious case of grave and criminal assault that came very close to attempted murder and it merited 10 years. 

14.      We have looked very carefully, when we adjourned, at the English cases, and we were referred in particular to R-v- Smith (2000) 1 Cr. App. R (S) 212 which provided a view of the authorities available regarding the appropriate sentence for attempted murder showing a wide range of tariffs ranging from 8 years to 25 years.

15.      The Court has taken 13 years as its starting point, and in doing so it looks at what it considers to be the aggravating circumstances.  There are 10 in number and it is necessary to annotate them all here.

(i)        The five year history of abuse within the marriage - that of course is denied by the defence.

(ii)       The escalating physical violence utilised by Caboz against Maria over a period of seven months immediately prior to the attempt to kill, that to a certain extent is denied by the defence.

(iii)      The numerous oral threats to kill.  Those are denied by the defence.

(iv)      The premeditation involved with regard to the stabbing incident on the 8^th April, 2002, in particular the theft of the knife from the flat the day before and Caboz approaching Maria by gaining access to the flat thus enabling him to launch a surprise attack on her.  That is denied by the defence, but I will, as I have said, have something to say about that in a moment.

(v)       Caboz lying in wait for Maria and David to leave her uncle's flat.

(vi)      The fact that Caboz stabbed Maria without a word five times.  That is incontrovertible.

(vii)     The fact that he attempted to murder his wife in front of his 5 year old son David.  That is incontrovertible.

(viii)    The fact that he left the knife embedded in her back.  That is incontrovertible.

(ix)      The fact that, having stabbed her, he then walked away from the scene and tried to conceal himself in Howard David Park.  That is incontrovertible.

(x)       The severity of the injuries sustained by Maria.  Those are incontrovertible.

16.      We have as I have said looked at the cases of R -v- Beaumont (1992) 13 Cr. App. R(S) 270, R -v- Nixon (1994) 15 Cr. App. R(S) 429, R -v- Hough (2001)  1 Cr. App. R(S) 261 and of Attorney General's Reference: Terry Louis (2001) 1 Cr. App. R(S) 122  But in this case as with many other cases it is almost impossible to compare case with case.  Each must be taken on its merits.

17.      Advocate Tremoceiro tells us that the defendant accepts that, because of the seriousness of the offence, he must accept a long sentence of imprisonment.  He says he will always regret the day that he stabbed his wife - five times.  He pleaded guilty to grave and criminal assault at the time.  He says he never had the intention to kill his wife and, of course, he intends to appeal from the decision of the Jury.

18.      The Social Enquiry Report was heavily criticised by Advocate Tremoceiro; he says that it was not balanced and it reads like a victim impact report.  Caboz denies any allegation of threatening his wife.   In particular he criticised paragraph 8.  Paragraph 8 reads:

"The assault on 23 February, 2002, was to be the last time Mrs Caboz was going to tolerate his behaviour.  It is documented that she said that she made it clear to him that the relationship was over and she did not want him back in her accommodation.  However, during the remand for the Social Enquiry Report in the Magistrate's Court, which was initially due for 27^th March, 2002, Mrs Caboz informed Mrs Lister that Mr Caboz approached her through her sister-in-law and asked Mrs Caboz to write a letter to the Court stating that she had forgiven her husband for what he had done and that she wished him to return home.  Mrs Caboz said she wrote that letter under duress.  It is recorded that she said she felt threatened into writing the letter because Mr Caboz told her about the case of a Portuguese man who poisoned his children to death, then murdered his wife before killing himself some years ago in Jersey.  Mrs Caboz mentioned that letter on 14^th March, 2002, when Mrs Lister first met her.  Two days earlier, I believe, Mr Caboz had used the letter to make an application to the Court on 12^th March, 2002, for a variation of bail to allow him to return home, which was accepted.  It was only later when Mrs Lister made enquiries, that she discovered Mr Caboz had used the letter in the bail application.  In the event, on 12^th March, 2002, Mrs Caboz refused to allow her husband back into the property and her landlord supported this.  Mrs Caboz also told Mrs Lister when they met on 14^th March, 2002, that Mr Caboz had approached her for money and she refused to give it to him."

19.      That particular paragraph and the report in general was heavily criticised by Advocate Tremoceiro who also pointed out to us other factual inaccuracies. 

20.      Count 1 (Mr Pombo):  he had entered a guilty plea very early on and he says that he only punched Mr Pombo once.  Count 2: he says that he merely slapped and punched lightly Mrs Caboz.  Count 5: that, of course, was not accepted by the defence who say that Caboz was granted bail.  He bumped into Mrs Caboz outside Le Riche Capital Stores with a new mobile telephone, and she invited him to call her. 

21.      He went to 69 Colomberie that evening.  He stayed there the night.  He went to work, telephoned her from work.  He stayed the night with Mrs Caboz, they left the house.  They met at the hairdressers.  She accompanied him to the guesthouse where he was staying.  They arranged to meet later and he arranged to go back to their home.  He stayed with her at one point and he was teaching her to text message.

22.      There was evidence from Jersey Telecoms that he had telephoned her on the mobile telephone, and that, as Advocate Tremoceiro says, must clearly corroborate his version of events.  She did eventually admit speaking to him at least twice on the Tuesday.  She had gone out to buy milk; her mobile phone rang; he went out to talk to her.  He came back and an argument occurred. The mobile phone fell to the ground; he apologised. 

23.      When he found she had gone to the police the situation appeared to change somewhat.  He returned to the guesthouse but he spent the night under some bushes in Howard Davis Park.  He had approached her at Colomberie that morning and she had let him in.  He had switched on the television, and put the kettle on to make coffee; she was afraid that he might kill her.  At this point, without premeditation, he picked up the knife and then stabbed her five times.  He left the scene.  He was spotted and an arrest was made.  He had gone only 200 to 300 yards.  It was only by chance that he picked up the knife seconds before the assault. 

24.      The Crown has quoted the case of R -v- Smith (2001) 1 Cr. App. R(S) 212 to try to help in considering the sentence that will be applied in this case. In Smith there was a review of the authorities available regarding the appropriate sentence for attempted murder showing a wide range of tariffs from 8 to 25 years.

25.      In R. -v- Davis (2001) 1 Cr. App R(S) 189, Burton J said this:

"...it is significant, when one looks at other decision of this Court which are referred to by Professor Thomas, that there is a more or less clear picture that on this kind of offence, involving savage attacks by a partner who either does not want himself removed or does not want the partner to go, a sentence of 12 years on conviction is certainly not unusual, and may well be appropriate and usual."

26.      Advocate Tremoceiro says that the 13 years taken by the Crown is excessive.  The five years of abuse is denied, and the seven months preceding is reflected in the other two counts.  Threats to kill are denied.  Premeditation is denied.  His behaviour was odd and coloured by an adjustment disorder.  There was, as Advocate Tremoceiro has pointed out, no serious attempt to escape justice.

27.      I did say I would deal with a matter earlier on and I must deal with it now.  The Jurats are in an extremely difficult position.  For many years Jurats sat on all the assize trials.  That procedure was dropped and now the Bailiff, the Deputy Bailiff or a Commissioner sit alone.  I sat through the whole trial.  A judge in England, having sat on an assize trial, would sentence on the facts that he had heard.  I have therefore had to give the Jurats such views as I may have on the facts as they presented themselves in the Court.  This was a troubling case, but I have found it necessary to tell the Jurats that in my view, while I was not convinced that everything that Mrs Caboz told the jury was reliable.  I am of the view that the knife was not taken in the way that Caboz would have us believe.  I am also of the opinion that Caboz had sufficient legal intent to murder his wife.  I say this having listened to the experts on this matter.

28.      However we look at this, we have a savage attack with a 7 inch kitchen knife, unprovoked, on a woman who had she not protected herself with her arms and by crouching down might well have died, and in fact she came very close to death, as we have heard.  All this in front of a very young child.  That is the offence with which he is charged. 

29.      Advocate Tremoceiro has urged upon us, in an address which was both helpful and cogent, that we should find significantly below the 11 years asked for by the Crown, mainly because of the mental condition of Caboz. 

30.      Let us first of all look at the other offences.  The offence against Mr. Pombo normally would never have attracted a prison sentence at all.  Remembering, of course, that Caboz had no previous convictions.  We feel that in this case - looking at it as one would have looked at it - he should have been sentenced to 1 week's imprisonment on that count.  On count 2 -  this was a second grave and criminal assault in the light of the injuries suffered and the way it was presented we think that should be reduced to 3 months' imprisonment as opposed to 6 months' imprisonment.

31.      On count 5 we have, of course, had some difficulty and we have considered it long and hard over a day's hearing.  However, no matter how persuasive the arguments of Advocate Tremoceiro have been, we will take 13 years as a starting point, and we will not argue with the Crown's conclusions of 11 years on this count.  Therefore, Caboz on count 1 you are sentenced to 1 week, count 2, to 3 months' and count 5 to 11 years' imprisonment, and all those will be concurrent. 

32.      Again Advocate Tremoceiro we have taken into account all you have said about deportation, but we are going to make the usual recommendation that he be deported when his sentence has been served.

Authorities

A.G. -v- Caboz (29^th October, 2002) Jersey Unreported; [2002/206].

A.G. -v- Le Feuvre (24^th April, 1996) Jersey Unreported; [1996/79].

Le Feuvre -v- AG (19^th June 1996) Jersey Unreported; [1996/115].

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

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): para 633; 826-828.

R -v- Johnson (1994) 14 Cr. App. R(S) 661.

R -v- Smith (2000) 1 Cr. App. R(S) 212.

R -v- Davis (2001) 1 Cr. App. R(S) 189.

Thomas, Current Sentencing Practice C1 - 2A.

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

R -v- (Samaroo) -v- Secretary of State for the Home Department (2001) EWCA 1139.

R -v- Beaumont (1992) 13 Cr. App. R(S) 270.

R -v- Nixon (1994) 15 Cr. App. R(S) 429.

R -v- Hough (2001) 1 Cr. App. R(S) 261.

Attorney General's Reference: Terry Louis (2001) 1 Cr. App. R (S) 122 at 420.