Jersey Unreported Judgments

[2006]JRC129

ROYAL COURT

(Samedi Division)

15^th September 2006

The Attorney General

-v-

Jose Avelino Abreu Rodrigues

Sentencing by the Inferior Number of the Royal Court:

Age:  31       

Plea:  Guilty

Details of Offence:

The victim is a woman with whom the Defendant's bisexual boyfriend had had a recent sexual relationship.  During a night out, the Defendant saw her a couple of times but denies having any contact with her.  However as he was on his way to drop his sister home, he changed direction and headed towards the victim's home whom he saw again.  He parked his car nearby and as she appeared he got out of his vehicle and pushed her violently across the road into a parked van where she slumped onto the ground.  He then grabbed her before launching a powerful kick at her head, the force of which caused her to be thrown back into the side of the van again.  The Defendant then started to walk away, got back to his car but he turned almost immediately and returned to kick her in the face again as she sat on the ground by the van.  He then punched her before stamping on her.  Again he calmly walked back across the road and got into his vehicle.  However, as he pulled forward to drive away, the victim struggled to her feet so that the Defendant once more stopped the car, got out, made a forcible kick to her body before pulling her by her hair to the ground again.  He then stamped on her again before leaving her slumped motionless at the side of the van.  He then finally drove away from the area.  The victim's injuries consisted of severe bruising, swelling and grazing to the face, elbows, upper arms, a grazed left knuckle and a cut to the back of her head.  The cut bled heavily and she also had a large swelling beneath the cut.  No permanent damage.

Aggravating factors: victim was female, attack to the head with shod feet.

Details of Mitigation:

Guilty plea, Reports show the extent of the Defendant's troubled background, great remorse, a number of excellent references, and no criminal record.

Previous Convictions:

None.

Conclusions:

Sentence and Observations of Court:

The Court noted that the case was very unusual.  The offence was a very serious assault on a woman, as described above but the Court was greatly influenced by the extensive mitigation especially the Defendant's horrific background as outlined in the Social Enquiry and Psychological Reports, the emotional nature of the offence, the numerous and excellent references and the fact that the Defendant refused his counsel's application for the bail leading him to spend over five months in prison.  Although the Jurats did not reach a unanimous decision, the Court, stressing that any failure to comply would lead to the Crown's conclusions being adopted, sentenced the Defendant to 240 hours of Community Service and recommended he continued to attend counselling.

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

Advocate R. C. L. Morley-Kirk for the accused.

JUDGMENT

THE Commissioner:

1.        This is in every sense an unusual case.  Rodrigues is charged and has pleaded guilty to one count of grave and criminal assault.  It is a very serious assault.  We do not have the benefit of the CCTV recording which apparently shows the whole incident, but that is a decision which the Royal Court made previously, and we do not comment upon it.  We have, however, the statement of the Crown agreed by Defence Counsel.  Rodrigues launched an attack at the complainant, pushing her to the ground and kicking her in the head and stamping on her.  He walked away.  He then returned and again kicked the complainant in the face.  He got into his car to drive away, stopped, got out, kicked the complainant, pushed her to the ground and stamped on her again as she lay on the ground.  He drove away leaving her slumped on the ground.

2.        Whilst we do not have a medical report the Crown Advocate has outlined the results of the examination.  The complainant was detained in hospital for two nights.  She had severe bruising, swelling and grazing to the face, elbows, upper arms, a grazed left knuckle and a cut to the back of her head.  That cut bled heavily and she had a large swelling beneath the cut.

3.        Mr Viveiros and Rodrigues' sister and brother-in-law were in the car and saw the whole assault.  They did absolutely nothing to prevent it.

4.        We have on the Crown's bundle a very detailed Psychological and Social Enquiry Report and it is those that have led us to the conclusion that this is undoubtedly an unusual case.  In the leading case of Harrison-v-AG in the Court of Appeal, that Court gave guidelines which were not, of course, exhaustive and it may be helpful to analyse them now.

5.        Firstly, the nature of the deliberation when the assault was carried out.  There is some dispute amongst the learned Jurats as to why Rodrigues went to the property.  One feels that he went in order to test Viveiros' reaction to passing the house or going near to the house, but the other feels that he went in order to confront the complainant knowing that she would be going home at about that time and that he would meet up with her.

6.        Secondly, whether the blow was aimed or random.  This was certainly not a random assault.

7.        Thirdly, whether the incident arose as a result of a loss of temper or was committed in cold blood.  This was undoubtedly, what I believe, the French call a 'crime passionelles'.  Obviously it does not apply in this Court but there was a very great loss of temper in this case.

8.        Fourthly, what was the degree of force with which the blow must have been struck?  These blows were struck with exceptional force in our view.

9.        Fifthly, the nature, extent and gravity and permanence of the injury occasioned.  We have had the injuries explained to us in some detail by the learned Crown Advocate.

10.      Sixthly, if a weapon was used the nature of such a weapon.  We will say again, a shod foot, in this case brogues, were in our view an effective weapon.

11.      Seventhly, how many were concerned in the assault and the circumstances that gave rise to their involvement.  This was an assault by one person in the circumstances we have explained.  It is quite extraordinary to us that three people watched the assault and did absolutely nothing.  What was the nature and extent of the provocation offered by the victim?  Apparently, from what we have heard the complainant swore at Rodrigues at some stage.

12.      Finally, of course, the fact that Rodrigues has no criminal record and apparently has a very low risk of re-offending.

13.      The reports, we say again, are illuminating.  The Psychological Report, the Social Enquiry Report give something of the horrific background to the life of this man who is now 31.  He was horribly abused by his father and his step father in Madeira.  He received no benefit from his education and he came to Jersey in order to attempt to change his life.  He has lived here for 14 years.  He has no criminal record whatsoever and he has spent, as Advocate Juste has reminded us, the equivalent of 5 months and 16 days in prison.

14.      Apparently he refused to allow his counsel to apply for bail, we do not know whether or not that would have been successful, and his employer and his landlord have visited him in prison.  His job and his accommodation remain open to him and of course he pleaded guilty at the earliest opportunity.  He has shown great remorse and there are a large number of references on the defence bundle.  He has worked in the prison and he has voluntarily taken counselling which is what the Consultant Clinical Psychologist has recommended.  She says in her report:

"He did seem receptive of the idea of psychological intervention and I think if he is brave enough to trust someone then it could have a lot of benefit."

The Probation Officer recommends at the end of his very detailed report a Community Service Order.

15.      In this unusual case the Jurats are, after long deliberation, divided.  One feels that a repeated assault of this nature on a woman is so serious that only a prison sentence can be justified.  The other feels that after the time he's already spent in prison, and in order to hopefully better himself, a Community Service Order should be put in place.

16.      In fairness to the Crown, it must be said that in asking for 18 months' imprisonment they have already taken into account the many reports and references that were received.  If this case had not been so unusual there is no doubt that this Court would have followed the conclusions of the Crown.  I must go with the learned Jurat who favours the lesser sentence.  I have to say this, that if there is the slightest failure to comply then the Crown's recommendation of 18 months' imprisonment will no doubt be implemented.

17.      You are going to serve 240 hours of Community Service and we would recommend that you continue with the counselling that you are receiving.

18.      We considered deportation but on reflection we agree with the Crown and we will not recommend that course of action.

Authorities

Harrison-v-AG [2004] JCA 046