Jersey Unreported Judgments

[2007]JRC041

ROYAL COURT

(Samedi Division)

16^th February 2007

The Attorney General

-v-

Adelino Duarte Jesus Da Costa

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

Counts 1 and 2 not to proceed.

Age:  26.

Plea: Guilty to Counts 3 - 5.

Details of Offence:

On 31^st March, 2006 the Defendant was convicted of grave and criminal assault and ordered to undertake 240 hours' Community Service.  Crown had moved for conclusions of 18 months' imprisonment and had considered deportation.  Defendant failed to complete Community Service despite several warnings.  On 13^th December Defendant warned to appear in Royal Court for breach proceedings.  On that date he had failed to obtain legal representation and the case was adjourned to 5^th January, 2007.  By 5^th January, 2007, Defendant had re-offended on 24^th December 2006.  He was therefore remanded to 16^th February, 2007 for the new offences to be committed to the Royal Court.  Other offences were outstanding and committed to the Royal Court.  These related to parking offences, (Counts 1 and 2) to which he pleaded not guilty and no evidence was offered by the prosecution.  Counts 3, 4 and 5 - Defendant was observed driving erratically and he eventually collided with a traffic bollard.  He did not stop when requested to do so and made off from the scene.  However, he was apprehended and failed a roadside breath test (63 in the breath).

Details of Mitigation:

Guilty pleas; remorse; had remained in full time employment; 90 hours completed; chose to work for employer rather than complete Community Service.  Difficult upbringing.  Did not fully understand ramifications of not completing Community Service.

Previous Convictions:

One previous conviction - 31.03.06 - grave and criminal assault.

Conclusions:

Total: £1,000 fine, or 1 month's imprisonment in default.

Disqualified from driving for 18 months

Breach of Community Service - 18 months' imprisonment, concurrent.

Total 18 months' imprisonment.

Sentence and Observations of Court:

Breach of Community Service - 11 months' imprisonment, consecutive.

Total: £1,000 fine or 1 month's imprisonment in default.

11 months' imprisonment for breach of Community Service, consecutive.

12 months' disqualification from driving.

S. Sharpe, Crown Advocate.

Advocate R. MacRae for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Court has to remind itself of the circumstances which led to the imposition of the sentence of 240 hours Community Service in March 2006.  There was an altercation in the street, and the victim of the grave and criminal assault and the defendant both fell to the ground.  The defendant got up first and as the other man attempted to get up Da Costa aimed a forceful kick, with his right foot, to the head of the victim causing the victim to move backwards and hit his head on the pavement.  Da Costa then walked away from the scene leaving the victim unconscious on the ground.  Those are the circumstances in which the Court exercised a measure of mercy for a first offender and imposed a sentence of 240 hours Community Service with 18 months' imprisonment specified as a default.

2.        The defendant has failed to comply with the Community Service Order, although he has performed 90 hours before being suspended.  The Court has taken very careful note of the powerful submissions made by defence counsel, but at the end of the day the Court has to make it clear that an order which it makes for community service to be performed is an order which must be obeyed.  It is not an optional matter and if a defendant fails to comply with it the Court must in general impose a custodial sentence.

3.        The Court very much regrets in this case that the defendant, who is otherwise a hard working man of good character, should have failed to comply with the Court's Order in this way for whatever reason it might have been.  The Court is unfortunately left with no option but to impose a custodial sentence.  The Community Service Order is accordingly revoked and having taken account of the submissions of counsel that we are entitled as a matter of discretion to give credit for the hours that have been worked, Da Costa you are sentenced to 11 months' imprisonment on the offence for which you were ordered to perform Community Service.

4.        On this current indictment you are fined £500 on Count 3, or 1 month's imprisonment.  On Count 4, £100 fine or 1 week's imprisonment and on Count 5, £400 or 1 month's imprisonment, making a total of £1,000 and all those alternatives to run concurrently making imprisonment of 1 month, but consecutive to the sentence for the grave and criminal assault so that if the fines are not paid the total sentence is 12 months' imprisonment.  We disqualify you from holding a driving licence for a period of 12 months.

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