Jersey Unreported Judgments

[2006]JRC009

ROYAL COURT

(Samedi Division)

24^th January 2006

The Attorney General

-v-

Marcio Ruben Figueira Rodrigues

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

Age:  18.

Plea: Guilty.

Details of Offence:

Accused entered staff accommodation at his former place of work through an open window and stole a lap top and silver necklace (count 1).  About a week later accused returning home during early hours came across grossly intoxicated young woman.  Offered to help and walked with her to staff accommodation at town hotel.  She asked him to let go.  He did and she fell to floor.  Accused sat astride her and with his knees on top of her hands and placed his open hand over her mouth and nose in an attempt to stop her screaming.  Struggle ensued.  Accused put his hand into her trouser pocket and removed her mobile.  He ran from scene.  Incident lasted some 25 minutes (not possible to say with certainty exactly what occurred during this lengthy period).  Victim initially alleged rape.  Sexual element to offence ruled out.  Victim sustained superficial scratches to face, bruising to chest, back, arms and feet, grazing to right arm and foot and abrasions to arms and left foot (Count 2).  During interview accused initially gave false stories as to his whereabouts at relevant time.  Later he admitted stealing the lap top and silver necklace and frankly admitted his part in the robbery.

Details of Mitigation:

Youth.  Guilty plea.  Expression of remorse.

Previous Convictions:

One previous before Jersey's Youth Court for possessing a controlled drug.  (MDMA).

Conclusions:

Total:  21 months' youth detention (no recommendation for deportation).

Sentence and Observations of Court:

Robbery involved exploitation of a drunken, vulnerable woman.  Victim thought she would suffocate.  After struggle lasting 25 minutes accused removed her mobile and ran away.  Following arrest accused first lied but eventually admitted his part in offence.  He apologised for lying and pleaded guilty.  Accused 18 and expressed regret - subject to Criminal Justice (Young Offenders) (Jersey) Law, 1994.  Notwithstanding his age offence of robbery so serious non-custodial sentence could not be justified.  This type of offending would not be tolerated.

In light of court's conclusion on question of deportation Crown's conclusions would be reduced slightly - Count 1 - 3 months' youth detention.  Count 2 - 12 months' youth detention, consecutive (total 15 months' youth detention).

Crown decided not to recommend deportation but Court asked for submissions.  Cases of Mendes and Nazari required in determining whether to recommend deportation Court had to consider whether (1) continued presence of accused detrimental to Island, and (2) effect of recommendation on innocent persons

As to (1) robbery serious.  Island had enough criminals of its own without tolerating those from other jurisdictions.  Accused arrived in Jersey 2½ years ago aged 16.  Had since appeared twice before Island's Courts - possession of MDMA and instant offences.  Admitted misusing drugs including heroin.  From May, 2005, to August, 2005, unemployed.  No explanation for attack.  Probation officer could not rule out sexualised element.  More significantly, accused appeared to have so little insight into his offending that more offending could not be ruled out.  Alcohol and Drugs report stated accused fitted profile of person likely to re-offend whether or not drugs were involved.  Author of report recorded accused showed no remorse and absolved himself from personal responsibility.  Court concluded continued presence of accused in Jersey detrimental to Island.

As to (2) accused's mother, uncle, aunt and cousins here.  Younger brother had returned after 4 months in Madeira.  In Madeira accused had grandmother and older sister.  He had been born and raised in that Island.  His counsel said he had close relationship with mother.  Mother now had new non-Madeiran partner and would find it difficult to return to Madeira.  Balance difficult Court had sympathy for accused's mother who had worked hard and achieved the best for her family.  Court nevertheless noted family had short connection with Jersey.  In all the circumstances it would not be disproportionate and in breach of human rights to recommend deportation.

Recommendation for deportation.

A. J. Belhomme, Esq., Crown Advocate.

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This defendant is to be sentenced for one offence of illegal entry and larceny and one offence of robbery.  The robbery involved the exploitation of a drunken and vulnerable young woman, who was held on the ground by the defendant with a hand over her mouth to prevent her from screaming.

2.        The victim thought that she was going to suffocate.  During the struggle which apparently lasted some 25 minutes the defendant removed a mobile telephone from the victim's pocket, following which he ran away.

3.        On arrest by the police the defendant at first lied to the officers, but eventually gave a story admitting the offences.  He apologised for lying and later pleaded guilty to the charges laid against him.

4.        In mitigation he is aged 18 and has expressed regret for his actions.  Rodrigues is subject to the protection of the Criminal Justice (Young Offenders) (Jersey) Law 1994 and cannot be sentenced to youth detention unless the Court is satisfied that no other method of dealing with him is appropriate.  We have reached the conclusion, notwithstanding his age, that that this offence of robbery is so serious that a non-custodial sentence cannot be justified.  It was an offence where, as we have said, a vulnerable young woman placed her trust in him.  He exploited her and robbed her with violence.  We wish to make it clear that violence of this kind will not be tolerated by the Courts.

5.        We think, however, that having regard to our decision on the question of deportation, the conclusions of the Crown Advocate which would otherwise have been appropriate can be reduced.

6.        On Count 1 you will be sentenced to 3 months' youth detention, and on Count 2 to 12 months' youth detention, consecutive making a total of 15 months' youth detention.

7.        We turn now to the question of deportation.  The Crown has decided not to recommend deportation, but we adjourned the case on 15^th December so that the appropriate notices could be served and so that we could hear submissions, on this issue from defence counsel.  In AG -v- Mendes [2002] JLR 25 the court decided, following the English case of R -v- Nazari [1980] 3 All ER 880, that in determining whether or not to recommend to the Lieutenant Governor that an offender be deported the Court should consider two things:

(i)        whether his continued presence in Jersey was detrimental to the Island's interests, and

(ii)       the effect that a deportation order would have upon innocent persons not before the Court.

8.        So far as the first question is concerned robbery is a serious offence.  As the Court has said on many occasions before this Island has enough criminals of its own without tolerating the presence of criminals of other nationalities.

9.        Rodrigues came to Jersey 2½ years ago at the age of 16 and has twice appeared before the Islands courts, the first time for possession of ecstasy, a Class A drug, and the second time for the offences for which he is to be sentenced today. 

10.      He has admitted misusing drugs including heroin.  He was unemployed between May 2005 and August 2005 when he was arrested for these offences.  The defendant has been unable to give any explanation for attacking this young woman, and the Probation Officer accordingly cannot rule out the possibility of a sexualised element to his behaviour. 

11.      More significantly, the defendant has so little insight into his behaviour that the Probation Officer cannot rule out further offending particularly in regard to other women.  The Report of the Director of the Alcohol and Drugs Service states that from his experience the defendant fits the profile of an offender who is likely to offend in spite of whether or not he uses drugs.  Mr Gafoor concludes that the defendant has shown no remorse and absolves personal responsibility for the offences.

12.      We have concluded that the continued presence of Rodrigues in Jersey is to the Island's detriment.  Turning to the second question, the defendant's mother is living in Jersey as are an uncle, aunt and some cousins.  His younger brother has returned to the Island in January 2006 having been in Madeira for some four months.  On the other hand the defendant's grandmother and an older sister with all of whom he relates well live in Madeira.  The defendant was born and raised in Madeira. 

13.      Defence counsel told us that the defendant had a close relationship with his mother, who has now found a partner who is not of Madeiran origin and would accordingly find it difficult to return to Madeira.  We have found this a difficult balance to strike, because we have considerable sympathy for the defendant's mother who has obviously worked hard to do her best for her family.  Nonetheless we think the deportation of the defendant, whose presence here is not in the interests of the Island, having regard to the relatively short connection of the family with Jersey and all the other circumstances of the case would not be disproportionate having regard to the human rights of others.  We therefore recommend to the Lieutenant Governor that at the conclusion of his sentence Rodrigues is deported from Jersey.

Authorities

Criminal Justice (Young Offenders) (Jersey) Law 1994.

AG -v- Mendes [2002] JLR 25.

R -v- Nazari and Ors [1980] 71 Cr. App. R.87.