Jersey Unreported Judgments

[2004]JRC017

ROYAL COURT

(Samedi Division)

 

23^rd January, 2004

 

 

The Attorney General

Paulo Jorge Simao

 

1 count of:	grave and criminal assault (count 1);
1 count of:	false imprisonment (count 2);
1 count of:	malicious damage (count 3).

 

Age:     29.

 

Plea:    Guilty.

 

Details of Offence:

 

Count 1 - Grave and Criminal Assault.

On the evening of 16^th August 2003, Simao was working as a doorman at St James Wine Bar in St Helier.  Simao, acting on the instructions of the Manager, ejected the male victim, who was clearly intoxicated, from the premises.  A struggle ensued between Simao and the victim culminating in Simao deliberately kicking the victim, whilst on the floor, in the head while wearing a pair of leather shoes.  As a result of the kick, the victim was rendered unconscious for about five seconds.  The victim suffered minor injuries including superficial abrasions to the left cheek and lower lip but no hospital treatment was administered.  Simao was arrested at the scene.  Denied assault during interview.

Counts 2 and 3 - False imprisonment and malicious damage.

While on bail for the offence at Count 1, Simao, in the early morning of 21^st September, 2003, forcibly gained access to the female victim's flat by climbing in through a window.  The victim was a friend of Simao's and had previously allowed Simao to sleep in the flat when homeless.  The victim told Simao, days earlier, no longer able to sleep in the flat.  Simao locked the front door from inside and cut the wires to the two telephones in the flat.  (The damage to the telephone wires constituted Count 3 on the Indictment namely, malicious damage).  Simao also removed the SIM card from the victim's mobile phone.  Simao ignored the victim's pleas to be released and the ordeal lasted ten hours in total.  The victim spent a sleepless night imprisoned in her own flat.  After about 9 hours, the victim attempted to escape but was forcibly restrained by Simao.  Eventually, the victim managed to alert the police by making an SOS call from her mobile phone.  Simao was arrested at the scene.  Full admissions made during interview.

 

Details of Mitigation:

Guilty pleas.  Not the instigator of the struggle culminating in the grave and criminal assault.  History of mental illness in recent years.

 

Previous Convictions:

No previous convictions but committed the offences in respect of counts 2 and 3 while on bail for the offence in respect of count 1.

 

Conclusions:

 

Count 1:	12 months' imprisonment
Count 2:	2 years imprisonment; consecutive
Count 3:	1 month imprisonment; concurrent

 

Recommendation for deportation

 

Sentence and Observations of Court:

 

Count 1:	6 months' imprisonment
Count 2:	2 years imprisonment; consecutive
Count 3:	1 month imprisonment; concurrent

 

Not satisfied withdrawal effects from medication for depression caused behaviour giving rise to the conduct in relation to counts 2 and 3 and only possibly influenced behaviour in relation to count 1.  Given the nature of the offences, a recommendation for deportation was considered in the best interests of the Island and a proportionate response.

 

Deportation proceedings adjourned to another day.

 

 

Advocate B.H. Lacey, Crown Advocate.

Advocate C.M. Fogarty for the Defendant.

 

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        Simao, on 16^th August you were working as a doorman in a nightclub when you assaulted a patron.  We accept that you did not instigate the violence; the victim was drunk and you had to eject him physically.  Nevertheless, there came a time when you over reacted by kicking him once in the head when he was on the ground.  Fortunately he did not suffer any serious injuries. 

2.        Whilst on bail for that offence you entered the flat of Miss Castro where you had earlier been staying for a short while.  You did this in the early hours of the morning and in effect you detained Miss Castro in her flat against her will for some ten hours.  You locked her in, you did not allow her to telephone for help, indeed you cut the wires to two telephones in the flat with a kitchen knife.  It must have been a terrifying experience for the victim and it only came to an end when she managed to use her mobile to call the police from the bathroom and they came around and released her.

3.        Miss Fogarty has put forward much in mitigation on your behalf.  She has referred to your guilty plea which was undoubtedly of value particularly in relation to the assault but also in relation to the false imprisonment because it relieved Miss Castro of having to go through the ordeal again.  We accept, as I say, that the assault was not started by you.  Most importantly you have no previous convictions; you have been in Jersey now for some ten years or so and have not been in trouble before.  We have a psychiatric report which makes it clear that you have had problems with depression and that you stopped taking your anti-depressants for some reason before these incidents and this might have played a small part in your behaviour.  We have also considered carefully the Social Enquiry Report and all the references that have been handed up and the letter from you.  We take all this into account. 

4.        If the two counts had stood on their own, we would have gone along with the Crown's conclusions.  We think that, taken individually, the sentences moved for were undoubtedly correct.  But we have to have regard to the totality of the offending and, particularly bearing in mind that you have not been in trouble before, we think that a total sentence of two-and-a-half years is the right sentence.  We propose to do this by reducing the sentence on count 1.  So the sentence on count 1 is six months'; on count 2, two years, consecutive; on count 3, one month concurrent, making a total of two-and-a-half years. 

5.        Now the Crown has raised with us the question of deportation but your Advocate has said that she was not aware of this until yesterday and wishes to have time to take further instructions from you.  We will therefore adjourn this matter to a date to be fixed.  We will have to reconstitute the same Court if possible and it will be for the Crown and Defence to liaise as a matter of urgency to find a date when that can be done.  We are not willing to allow this to drift on for too long.

Authorities

A.G. -v- Nolan (19^th July, 2002) Jersey Unreported; [2002/139]

A.G. -v- Artiss (30^th May 2003) Jersey Unreported; [2003/088]

A.G. -v- Marrett (18^th August 2000) Jersey Unreported; [2000/168]

Attorney General's Reference No. 5 of 1994 (Partridge) [Archbold Criminal Appeal Office Index No. 2]

R. -v- Spence & Thomas [1984] Cr. App. R. (S) 413

R. -v- Ashbridge [2002] EWCA 384