Jersey Unreported Judgments

[2004]JRC155

ROYAL COURT

(Samedi Division)

7^th September, 2004

The Attorney General

-v-

Jose Avalino da Silva

Breach of a 2 year Probation Order made by the Royal Court on 24^th September 1999, following a guilty plea to 1 count of grave and criminal assault.

[On 10^th December 1999, the Defendant's arrest was ordered by the Royal Court, when he failed to appear to answer to the breach.]

Conclusions:

Probation Order set aside; 1 year's imprisonment substituted.

Sentence and Observations of Court:

1 year's imprisonment; recommendation for deportation.

C.M.M. Yates, Esq., Crown Advocate.

Advocate M.J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This was an unpleasant assault involving the use of a hoe.  We note the description given by the Royal Court in 1999 but it must nevertheless have been very frightening for the victim and very frightening for by-standers as it took place in the streets of St Helier in the early evening.

2.        The Court gave you a chance in 1999 when it placed you on probation and ordered community service for an offence which might have been expected to attract a prison sentence.  You ignored this chance; you left Jersey at the end of 1999 having, it would seem, already left for short periods when you were not allowed to do so and you simply did not carry out any further work in relation to the probation or the community service.

3.        You seem to have spent most of your time since then in Madeira, although sometime elsewhere.  You came back to Jersey in May, 2004, but you did not tell the Probation Service or the community service organisers.

4.        When the Court imposed sentence in 1999 it said this:

"We are going to put you on Probation for this offence but we want you both to understand very clearly that if you do not comply with the conditions of the Probation Order, it is almost certain that, if you are brought back to this Court, you will be sent to prison."

5.        Mr Haines says that, despite what the Court said there, we should not impose a prison sentence.  He says that you are now more mature, you have conquered your heroin habit - although we have to say that this assertion is entirely dependent on your word.  There is no independent evidence of it.  You have not committed any offences since 1999, although it appears you were charged with quite a serious offence in Madeira but were acquitted.

6.        You have a good employment record and the probation report says that you are at low risk of re-offending.  We take all these matters into account as well as the other matters urged by Mr Haines but in our judgment there can be no alternative to prison when you have flouted the chance given you in such an obvious way.

7.        The Crown in our judgment has made full allowance for the available mitigation and, therefore, we impose a prison sentence of 12 months' imprisonment for the offence of grave and criminal assault.

8.        We turn then to the question of deportation.  We must first consider whether your continued presence in the Island would be detrimental.  As we have said already this was a serious assault involving the use of weapons and must have been very frightening.  We accept, as the Royal Court said, that it is not at the higher end of the scale but it was still a serious assault.  Furthermore, it was not your first assault, although we accept that the previous one was in 1995 and was a minor one. 

9.        You have also been convicted of an offence of dishonesty in 1999.  You have ignored the Order of this Court in relation to the probation and community service.  Taken in the round we are quite satisfied that your continued presence in the Island would be detrimental.

10.      We then turn to the question of whether deportation would be disproportionate bearing in mind the impact on your family life.  In our judgment the impact would be minimal.  You are a single man, your girlfriend is in Madeira, and you have a five year old son who lives in Madeira with his mother.  Your parents live in Madeira.  You have no family in Jersey except your brother and his immediate family.  Furthermore, your connection with Jersey is minimal.  You came here first in 1994 although for a couple of years you seem to have alternated between here and Guernsey; but then from 1996 onwards you remained in Jersey until 1999.  You then left, in breach of the Probation Order, as we have said, and you did not return to Jersey until May 2004.  For most of that time you were in your home country of Madeira. 

11.      In all the circumstances we consider your connection with Jersey to be minimal and the impact of deportation on your private life and your personal life and on others would also be minimal.  In the circumstances we do not consider a recommendation for deportation would be disproportionate and we therefore make such a recommendation.

Authorities

De Sousa - v A.G. (2004)JCA78.

A.G. -v- de Sousa (2003)JRC196.

De Jesus -v- A.G. (2003)JCA181.

A.G. -v- de Jesus (15th February 2002) Jersey Unreported; [2002/41].

Monteiro -v- A.G. (7^th August, 2001) Jersey Unreported; [2001/177].

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

A.G. -v- Andrade & Da Silva (24^th September, 1999) Jersey Unreported; [1999/158].