Jersey Unreported Judgments

[2006]JCA038

COURT OF APPEAL

15^th March 2006

José Bruno Dos Santos Da Graça

v

The Attorney General

Appeal against the sentence imposed by the Superior Number on 16 November, 2005 after guilty pleas to:

1 count: Illegal entry.

1 count: Grave and criminal assault.

1 count: Rape.

Crown Advocate A. D. Robinson.

Advocate M. J. Haines for the Appellant.

Leave to appeal granted by the Deputy Bailiff sitting as a Single Judge of the Court of Appeal on 14^th February, 2006.

jUDGMENT

SUMPTION JA:

1.        This is the judgment of the Court.  On 16 November 2005, the Appellant, José Bruno Santos Da Graça, pleaded guilty to an indictment containing three counts: (1) illegal entry, (2) grave and criminal assault and (3) rape.  He was sentenced by the Superior Number of the Royal Court to three years' imprisonment on count 1, four years on count 2 and eight years on count 3.  Da Graça has appealed to this Court against his sentence.  In our judgment, this is a very clear case, in which the sentence was right, for the reasons which the Bailiff gave in delivering it.  Our reasons can therefore be stated quite shortly.

2.        The Appellant, who was 23 years old at the time of the offence, was employed as a handyman on a farm and had accommodation within the farm complex.  The victim, who was then 42 years old, lived in another part of the farm complex.  At about 1.30 a.m. on 29 May 2005, she was alone at home working on her computer, with the outside doors closed but unlocked.  What happened next is not disputed, and can be summarised in the words of the Bailiff:

"Da Graça 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 arms 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.  After the sexual act was completed, he again threatened her by drawing his hand across his throat, indicating that he would kill her at a particular time.  Da Graça 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, Da Graça was co-operative and admitted what had taken place."

3.        The sentencing policy of the Royal Court in cases of rape is based on that adopted by the Court of Appeal in England which is currently set out in the decisions in R v Billam [1986] 1 WLR 349 and R v Millberry [2003] 1 WLR 546. The effect of these decisions is that in a contested case with no mitigating or aggravating factors, the starting point will be a sentence of five years' imprisonment. The presence of any one of a number of specific aggravating factors will increase that starting point in such a case to eight years, fifteen years or life. The relevant starting point must then be reviewed against the whole range of relevant mitigating factors and other aggravating factors, and increased or reduced accordingly to produce the final sentence. This two-stage process can seem unduly mechanical. However, it needs to be borne in mind, as all the cases have emphasised, that these are only guidelines. Cases of rape are infinitely varied. Each one is unique. The sentencer is called upon to make a judgment about the cumulative effect of all the circumstances of the offence. Where there are major aggravating factors present, it may make little difference whether they are treated as increasing the starting point or the amount which is added to the starting point.

4.        In the present case, none of the specific aggravating factors are present which were held in Billam and Millberry to require the court to proceed from a starting point exceeding five years. There are, however, a number of other aggravating factors which entitled the Bailiff to increase the ultimate sentence very substantially. In Millberry the Court of Appeal, acting on the advice of the Sentencing Advisory Panel, identified the following aggravating factors which will normally justify increasing a sentence above the starting point:

"(i) the use of violence over and above the force necessary to commit the rape;

(ii) use of a weapon to frighten or injure the victim;

(iii) the offence was planned;

(iv) an exceptionally serious physical or mental effect on the victim;

(v) further degradation of the victim, e.g. by forced oral sex or urination on the victim ...;

(vi) the offender has broken into or otherwise gained access to the place where the victim is living ...;

(vii) the presence of children when the offence is committed ...;

(viii) the covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence;

(ix) a history of sexual assaults or violence by the offender against the victim."

5.        The first six of these factors were all features of Da Graça's offence. As against that, the only substantial mitigation which could be advanced in his favour is his plea of guilty. In our judgment, there was no realistic alternative open to him. But he is nevertheless entitled to some credit for his plea. A contest, however unreasonable, would have inflicted serious distress on the victim, which Da Graça's plea has avoided.

6.        In his sentencing remarks, the Bailiff identified Billam and Millberry as the cases by which he proposed to be guided. He pointed out that this was a terrifying ordeal for the victim, which lasted more than an hour. He drew attention to the victim impact assessment, which showed the victim to have suffered serious trauma and continuing stress, casting a shadow over her life since the event. He pointed to five specific aggravating factors: the fact that Da Graça had planned his attack to the extent of arming himself with a knife and a piece of tape; the fact that he had repeatedly threatened to kill the victim; the use of the knife to threaten the victim and cut her; the further sexual indignity and degradation that he inflicted on her; and the fact that he raped her in her own bedroom, which he had entered uninvited. The Bailiff was generous in accepting as mitigating factors not only the plea of guilty but the offender's youth, poor education and difficult childhood. He concluded that a sentence of eight years was appropriate.

7.        It has been suggested to us that the Bailiff could not have reached this conclusion consistently with Billam and Millberry. It was suggested that he must have taken eight years as his starting point (as the Crown's conclusions suggested), and not five. It was said that with a starting point of five years and mitigation for a plea of guilty, it was impossible to reach a final sentence of eight years even when the aggravating factors are taken into account. We reject these submissions. A starting point of eight years would have led to a substantially higher sentence than the one which he received. The aggravating factors were numerous and grave. They were certainly enough to justify the sentence imposed in this case, even on the lowest available starting point. Rape is always a serious offence. Looking at all the circumstances together, as the Bailiff clearly did, this was a particularly serious offence even by the standards of rape cases.

8.        The appeal will therefore be dismissed.

Authorities

R v. Billam [1986] 1 WLR 349.

R. v. Millberry [2003] 1 WLR 546.