Jersey Unreported Judgments

[2005]JRC161

ROYAL COURT

(Samedi Division)

16^th November 2005

The Attorney General

-v-

Jose Bruno dos Santos Da Graca

Sentencing by the Superior Number of the Royal Court, on guilty pleas to:

Age:  23.

Plea: Guilty.

Details of Offence:

The accused worked as a handyman on a farm.  The victim resided in accommodation on the farm.  There had been no prior contact between them and the victim knew the accused by sight only.  The victim was alone in her accommodation, the exterior door to which had been closed but not locked.  In the early hours she was working on her computer when she heard a noise.  It was the accused who had let himself into the accommodation.  He was familiar with the layout of the premises having been asked by his employer to 'strip' wallpaper there some two months prior to the offences.  When confronted by the accused on the landing, he was wearing a balaclava mask over his face with holes cut out for the eyes and mouth.  He had a knife which he put to the victim's throat.  He threatened her verbally.  He initially put his hand over her mouth and nose such that it was hard for her to breathe.  He then put a pre-cut piece of black tape over her mouth and nose.  He led her into the bedroom and continued his threats.  He stripped the victim and tied her hands at the wrist with a cord from her bathrobe which he cut for the purpose.  He ran the point of the knife across her body cutting the skin but not causing serious injury.  He held the point of the knife to her vagina but did not cause injury.  He left the room briefly leaving the knife behind.  The victim was not able to lock the door and he returned with two further knives and forced his way in.  He grabbed the victim by the neck and she briefly passed out.  She fell to the floor and when regaining consciousness saw him kneeling beside her.  He put her on the bed.  He kissed and licked her right breast, performed oral sex on her.  He put his tongue in her mouth forcing it open with his hand.  At all stages the victim made it clear that she did not want him to do any of this but she remained passive out of fear of antagonising him.  He put on a condom and raped her.  Even after the rape, he continued his threats and told her looking at his watch 'three o'clock you' motioning with his hand across his throat to give the victim the impression that he would kill her at that time.  After the rape, he calmed down and appeared remorseful, at times crying.  The victim was courageous and calm throughout.  This probably spared her more serious harm.  An impact statement indicated that following the offences, she exhibited signs of post-traumatic stress disorder.  Aggravating features were, the pre-planning, the threats to kill her, the use of a knife, the perpetration of acts of indignity upon her, and the fact that the rape took place in her own home.

Details of Mitigation:

Despite initially offering no comment during questioning, he did come to admit the offences and to enter a timely plea.  He had no prior convictions being aged 23 years.  The reports showed an upbringing of deprivation and abuse in Madeira.  He had limited educational liability.  He had come to the Island to work some 3 years previously.  He lived in poor accommodation, was lowly paid and lived a fairly solitary existence.  This led him to abuse with both alcohol and drugs.

Previous Convictions:

No previous convictions.

Conclusions:

Sentence and Observations of Court:

Conclusions granted.

Deportation recommended.

A.D. Robinson, Esq., Crown Advocate.

Advocate M.J. Haines for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This was a truly appalling crime and but for the courageous and calm reaction of the victim there might well have been a much more serious outcome.  In brief De Graca entered the victim's house, wearing a balaclava mask and carrying a knife.  He directed her to the bedroom, where he undressed her and tied her to the bed with cord.  He placed a tape over her mouth.  He pressed the point of his knife against her vagina.  He caused cuts to her arm and throat with the knife and repeatedly threatened that he would kill her.  He put his tongue in her mouth, he licked her breast, and performed oral sex on her, and he put on a condom and then raped her. 

2.        After the sexual act was completed he again threatened her by drawing his hand across his throat and indicating that he would kill her at a particular time. 

3.        De Graca then dressed himself and removed his mask so that the victim recognised him as one of the farm workers at the premises where the attack took place.  He appeared ashamed and apologetic and broke down in tears.  After his arrest De Graca was co-operative and admitted what had taken place.  He pleaded guilty to all the offences with which he was charged.

4.        This was clearly a terrifying ordeal for the victim which lasted for over an hour.  She was aged 42 at the time.  We have taken account of the victim impact assessment which not surprisingly indicates that she is now suffering from post traumatic stress disorder and that the crimes have cast a dark shadow over her life affecting the way in which she lives. 

5.        The leading authority in this jurisdiction continues to be a judgment of the English Court of Appeal in R -v- Billam and Others [1986] 1 WLR 349, but we have also had regard to a subsequent decision in R -v- Millberry and Others [2003] 1 WLR 546.  In Billam the Lord Chief Justice referred to a passage from a report of the Criminal Law Revision Committee published in 1984 but that passage remains as relevant now as it was then.  The Committee stated:

"Rape is generally regarded as the most grave of all the sexual offences.  In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences the reasons for this are set out as follows  - 'Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim.  Its physical consequences equally are severe: The actual physical harm occasioned by the act of intercourse, associated violence or force and in some cases degradation; after the event, quite apart from the woman's continuing insecurity, the fear of venereal disease or pregnancy.  We do not believe this latter fear should be underestimated because abortion would usually be available.  This is not a choice open to all women and it is not a welcome consequence for any.  Rape is also particularly unpleasant because it involves such intimate proximity between the offender and victim.  We also attach importance to the point that the crime of rape involves abuse of an act which can be a fundamental means of expressing love for another; and to which as a society we attach considerable value.'"

6.        We endorse all those sentiments.  Rape is a very serious crime.  There are a number of aggravating features in this case.  First there was some planning and premeditation in that De Graca armed himself with a knife and wore a balaclava mask.  He had brought the tape with him to place over the victim's mouth.  Secondly, he threatened on several occasions to kill the victim, and in context those threats were likely to have caused terror.  Thirdly, he used the knife with which he threatened the victim and cut her on the arm and throat.  Fourthly, he committed further acts of indignity or degradation upon the victim.  Fifthly, he raped her in her own bedroom into which he had gone uninvited. 

7.        The defendant did plead guilty.  He is a man of limited educational ability whose childhood was blighted by violence and neglect.  He is still a young man, being aged 23.  We think that all those factors have been adequately taken into consideration by the conclusions for which the Crown Advocate has moved.

8.        On Count 1, you are sentenced to 3 years' imprisonment.  Count 2, to 4 years' imprisonment.  On Count 3 to 8 years' imprisonment, all those sentences to be concurrent making a total of 8 years' imprisonment; and at the conclusion of your sentence we will recommend to the Lieutenant Governor that you should be deported from the Island.

Authorities

R -v- Billam and Others [1986] 1 WLR 349.

R -v- Millberry and Others [2003] 1 WLR 546.