Jersey Unreported Judgments

[2006]JRC066

ROYAL COURT

(Samedi Division)

28^th April, 2006

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle and Allo.

The Attorney General

-v-

Jose Luis de Silva Mendonça

And

Michael Dos Santos Moreira

Sentencing by the Inferior Number of the Royal Court, on charges of:

Jose Luis de Silva Mendonça

2 counts of:	Obstructing a Police Officer (Counts 1 and 3 - Count 3 fallen away).
1 count of:	Being disorderly on licensed premises contrary to Article 82 of the Licensing (Jersey) Law 1974 (Count 2).
1 count of:	Violently resisting Police Officers in the execution of their duty (Count 4).
1 count of:	Grave and Criminal assault (Count 5),

Age:  24

Plea: Guilty.

Details of Offence:

On 27^th August, 2005, Mendonça was involved in a fracas with two other males.  Mendonça was told by a police officer to leave the area three times which he refused to do.  Mendonça was arrested for obstructing a police officer in refusing to obey his lawful order (Count 1).

During the early hours of 25^th September, 2005, Mendonça was seen to punch the ceiling in St James wine bar causing a hole (Count 2).  Mendonça was escorted out of the wine bar and asked by a police officer to leave the area, which he refused to do.  Mendonça was removed from the area by one of his friends and warned by the police officer not to return to the area or he would be arrested.  Mendonça returned to the area about fifteen minutes later and was arrested after having again been asked to leave and refusing.  Mendonça was handcuffed and walked towards the police vehicle when he began to struggle and become extremely violent, kicking out at and injuring several of the police officers.  As a result of Mendonça's violent behaviour CS spray had to be used.  (Count 4).

On 5^th December, 2005, Mendonça and some friends went to a nightclub.  Moreira and his two sisters were also there.  During the evening Mendonça became embroiled in an argument with his ex girlfriend and was ejected from the club.  Mendonça walked towards the Pomme D'or Hotel.  Moreira and his sisters left the club and met Mendonça's distressed ex girlfriend and they too made their way to the Pomme D'or.  Mendonça was at this time waiting in the rear of a car when Moreira approached the car and became verbally abuse to the occupants.  (Count 1).  A fight broke out between Mendonça and Moreira.  It is not clear who started the fight, but punches were thrown by both parties.  During the fighting Moreira was the victim of a grave and criminal assault by Mendonça (Count 5).

Moreira's offending on 5^th December, put him in breach of a 2 year probation order made by the Royal Court on 2^nd December, 2005, in which it was also ordered that he complete 240 hours community service.

Details of Mitigation:

Guilty plea, apology to the Court for his actions.  Significant provocation in relation to the grave and criminal assault on Moreira.  Mendonça handed himself into the police after the grave and criminal assault.  Good employment record.

Previous Convictions:

One previous conviction comprising two offences, refusing to obey and resisting police arrest.

Conclusions:

Count 1:	1 week's imprisonment.
Count 2:	2 weeks' imprisonment.
Count 3:	Fallen away.
Count 4:	4 months' imprisonment.
Count 5:	18 months' imprisonment, all consecutive.

Total:  22 months and 3 weeks' imprisonment.

Recommendation for Deportation.

Sentence and Observations of Court:

Conclusions granted.

Recommendation for deportation made by the Court.  Court found Mendonça's presence was detrimental to the Island.  Mendonça had no dependants, although his brother lived in Jersey, his other siblings and mother live in Madeira.

Michael dos Santos Moreira

Count 1:

Causing breach of the peace by fighting.

Breach of Probation

1 count of:	Illegal entry and larceny.  (Count 1)
1 count of:	Breaking and entry with intent to commit a crime.  (Count 2).
1 count of:	Illegal entry and larceny (Count 3).
1 count of:	Illegal entry and larceny (Count 4).

Age:  28.

Plea: Guilty.

Details of Offence:

See Mendonça above.

Details of Mitigation:

Guilty plea.

Previous Convictions:

Nine previous convictions comprising thirty-seven offences.

Conclusions:

Count 1:

3 months' imprisonment.

Breach of Probation

Count 1:	18 months' imprisonment.
Count 2:	12 months' imprisonment.
Count 3:	12 months' imprisonment.
Count 4	18 months' imprisonment, all concurrent but consecutive to above indictment.

Total:  21 months.

Sentence and Observations of Court:

Count 1:

3 months' imprisonment.

Breach of Probation

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment.
Count 3:	12 months' imprisonment.
Count 4:	12 months' imprisonment.  All to run concurrently, but consecutive to the above indictment.

Total:  15 months' imprisonment.

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

Advocate M. L. A. Pallot for Mendonça.

Advocate J. M. Grace for Moreira.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mendonça you clearly have great difficulty in controlling your temper and behaving responsibly when you have had something to drink.  In August 2005, you refused to obey a police officer.  On 25^th September, you were disorderly on licensed premises and then you resisted arrest in an extremely violent manner such that three police officers sustained minor injuries.

2.        Finally, despite by then being on bail you assaulted Moreira by punching him and then kicking him forcefully once to the head when he was lying on the ground.  We accept that on that occasion there was provocation and that Moreira may well have thrown the first punch, but it was simply good fortune that he did not suffer more serious injuries as a result of your kick.

3.        The Court has repeatedly made it clear that those who kick to the head when a person is on the ground can expect a substantial prison sentence.  Advocate Pallot has spoken at length on your behalf and said everything that could conceivably be said.  We take into account the matters he has urged upon us and in particular your guilty plea and your remorse.  We accept that you are remorseful for what has happened.

4.        Nevertheless, we have come to the conclusion that for an offence of this nature the Crown's conclusions are correct.  Furthermore, we think that the resisting arrest has to be at the level of 4 months' imprisonment to reflect what was done on this occasion and must be consecutive.  So taking account of the totality principle, the sentence on Count 1, is 1 week's imprisonment.  On Count 2, 2 weeks' imprisonment.  On Count 4, 4 months' imprisonment and Count 5, 18 months' imprisonment.  That makes a total of 22 months and 3 weeks' imprisonment as requested.

5.        We also have to consider the question of deportation, and we have applied the well known test.  First of all, is your continued presence in the Island detrimental; and secondly, if it is, are there other factors concerning your family and your private life which would make it unreasonable for you to be deported?  We have no difficulty in finding that your continued presence is detrimental.  You have committed a number of offences including offences on bail, and this serious offence.  You clearly are prone to violence when under the influence of alcohol.

6.        As to the second part of the test, you came here in 2002; you have no dependants here although you do have a brother and his family who live here.  Your mother and siblings are in Madeira.  Although you have been employed here it has been intermittent employment and in all the circumstances we do not feel that it would be disproportionate for you to be deported.  We therefore make a recommendation.

7.        Moreira, you have a very poor record, but on 2^nd December you were given a chance by this Court.  Instead of sending you to prison for 18 months the Court placed you on probation and ordered Community Service, and yet four days later you committed this offence and therefore you broke the trust which the Court had placed in you.  Your counsel has very realistically accepted that in those circumstances there is no alternative to prison, given the warning that was given to you at the time.

8.        We have taken account of the matters urged by Mrs Grace but we think that three months' imprisonment for the breach of the peace in this case is correct.  The fact remains that had it not been for the fact that you shouted at Mendonça when he was in the car this incident probably would never have occurred.

9.        As to the offences for which you were placed on probation the Royal Court at the time said that 18 months' imprisonment was the right sentence and we accept that.  We do, however, take note of the point your counsel has made about the time you spent on remand before that appearance in December, and we think therefore that the sentence of 18 months' should be reduced to one of 12 months' imprisonment.  It follows therefore that the sentence for the four offences for which you were placed on probation is 12 months' imprisonment, concurrent on each count with 3 months' imprisonment, consecutive for the offence for which you are now before us making 15 months' imprisonment in all.

No Authorities