Jersey Unreported Judgments

[2007]JRC219

ROYAL COURT

(Samedi Division)

23^rd November 2007

Before     :

Sir Philip Bailhache, Bailiff, and Jurats Bullen and Liddiard.

The Attorney General

-v-

Mauricio De Jesus Dos Santos.

David Duarte Teles Rodrigues.

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

Mauricio de Jesus Dos Santos

1 count of:	Affray. (Count 1)
1 count of:	Having in a public place an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law 2000. (Count 2).
1 count of:	Malicious damage. (Count 3)

Age:  22.

Plea: Guilty.

Details of Offence:

Affray and offensive weapon.

Grievances existed between the two men and arrangements were made for them to meet in Rouge Bouillon.  Dos Santos took with him a hunting knife with a 10 inch blade.  Rodrigues took a lock knife with a 2½ inch blade which he had been carrying with him for several days.  The two men argued and pushed and shoved each other.  The incident developed to a point where Dos Santos held his knife to Rodrigues' throat and Rodrigues held his knife to Dos Santos' stomach.

Motorists, ambulance staff who intervened in the incident, pedestrians and people in neighbouring properties were all put in fear.

Malicious damage.

In unrelated incidents Dos Santos smashed a window by throwing a bottle after an argument.  Rodrigues used the same knife he used in the affray to slash his employer's tyres over a dispute about money.

Details of Mitigation:

The affray only involved two people and no injuries were caused.  Both had pleaded guilty and Rodrigues had youth on his side and was dealt with in accordance with the Criminal Justice Young Offenders (Jersey) Law 1994.

The SER indicated that Dos Santos was at high risk of re-offending, had a poor work record, showed little remorse and continued to make threats against Rodrigues.  The affray was committed only 4 months after release from a custodial sentence and Dos Santos believed the altercation related to his drug debts.

Rodrigues was assessed as being at medium risk of re-offending, to lack remorse, fail to see the seriousness of carrying a knife and to lack victim empathy.

Aggravating features.

The affray was premeditated and both took weapons.  Dos Santos' knife was particularly fearsome.  The incident occurred on a busy road in a residential area at 9 pm on a summer's evening.  Rodrigues had been carrying a knife for several days.

Previous Convictions:

20 previous convictions including grave and criminal assault x 2, possession of an offensive weapon, possession and supply of heroin, malicious damage and various public order offences.

Conclusions:

Count 1:	2½ years' imprisonment.
Count 2:	9 months' imprisonment, concurrent.
Count 3:	2 weeks' imprisonment, concurrent.
Total:	2½ years' imprisonment

Recommendation for deportation sought.

Forfeiture and destruction of knives sought.

Sentence and Observations of Court:

The Court stated that Jersey does not yet have a knife culture and that the Court is determined to prevent any such culture developing.  If knives are carried offenders must expect custodial sentences.

Conclusions were granted with regard to Dos Santos. 

Compensation of £110.90 to be paid within one month, 1 week's imprisonment in default.

David Duarte Teles Rodrigues

1 count of:	Affray (Count 1)
1 count of:	Having in a public place an offensive weapon, contrary to Article 43 of the Firearms (Jersey) Law 2000.  (Count 4).
1 count of:	Malicious damage.  (Count 5)

Age:  19.

Plea: Guilty.

Details of Offence:

See Dos Santos above.

Details of Mitigation:

See Dos Santos above.

Previous Convictions:

5 previous convictions for malicious damage x 2 and possession of cannabis.

Conclusions:

Count 1:	15 months' youth detention.
Count 4:	6 months' youth detention, concurrent.
Count 5:	3 months' youth detention, consecutive.
Total:	18 months' youth detention.

Forfeiture and destruction of knives sought.

Sentence and Observations of Court:

See Dos Santos above.

The Court held that Rodrigues' offences were so serious that a non custodial sentence could not be avoided but reduced the conclusions to a total of 12 months' youth detention.

Count 1:	12 months' youth detention.
Count 4:	6 months' youth detention, concurrent.
Count 5:	3 months' youth detention, concurrent
Total:	12 months' youth detention.

Compensation of £310.90 to be paid within one month or 2 weeks' youth detention in default, not to take effect until evidence of the £310 has been furnished to the Crown and Defence.

Forfeiture and destruction of the knives ordered.

S. E. Fitz, Crown Advocate.

Advocate D. S. Steenson for Dos Santos.

Advocate S. A. Pearmain for Rodrigues.

JUDGMENT

THE BAILIFF:

1.        These two defendants armed themselves with knives and set out to resolve a dispute by fighting in a public place.  Dos Santos had a ten inch knife stuck in his belt and Rodrigues had a lock knife with a two and half inch blade in his pocket.  When both used these weapons to threaten each other they created a frightening, if not terrifying, spectacle for members of the public who witnessed it.

2.        Dos Santos was the principal aggressor holding his knife to Rodrigues' throat, but Rodrigues also brought out his knife and held it to the other man's body.  We do not yet have a knife culture in Jersey and this Court is determined to prevent, so far as it can, any such culture from developing.  If knives are carried in public places in contravention of the law, offenders must expect to receive prison sentences.

3.        Dos Santos has a bad record of previous convictions including offences of violence and for possession of an offensive weapon.  We think that the Crown's conclusions in his case are absolutely correct.

4.        On Count 1 you will be sentenced to 2½ years' imprisonment; on Count 2 to 9 months' imprisonment, concurrent; on Count 3 to 2 weeks' imprisonment concurrent and we order a total of 2½ years' imprisonment.

5.        We order you to pay compensation of £110.90 to Marcia Encarnacao and if that is not paid within one month you will serve a further period of imprisonment of 1 week. 

6.        As to deportation we have to apply a two part test.  We have had no hesitation in concluding that the continued presence of Dos Santos in Jersey is detrimental to the public interest.  He is addicted to heroin.  He has supported his habit by trafficking in heroin and shows no remorse for his offences.  He has a bad work record.  He has been unable to comply with non-custodial sentences and it is likely that he will re-offend if released from custody into the community.

7.        So far as the second limb of the test is concerned we have considered very carefully the Convention rights of both the defendant and of the members of his family.  It is true that he has lived in Jersey for a number of years from the age of 9 and that he is said not to be fluent in Portuguese.  He does, however, speak the language.  He has no dependants in Jersey and balancing his Convention rights and those of his family with the interests of this community we think that the balance tips in favour of deportation.  We therefore will recommend to the Lieutenant Governor that at the conclusion of his sentence Dos Santos be deported from Jersey.

8.        We turn to Rodrigues, he too has a criminal record, although not so bad as that of his co-accused.  He is also three years younger.  He has had a poor educational experience, but on the other hand has generally been in employment and has been trying to improve his educational achievements by seeking to do courses at Highlands College.

9.        We have been asked by his counsel to consider the imposition of a non-custodial sentence.  We feel unable to impose such a sentence because we wish to send out a strong message that the use of knives in public places will not be tolerated by this Court.  We have given some effect to the points made in mitigation by his counsel by moderating slightly the conclusions of which the Crown Advocate has moved. 

10.      We have considered carefully the matters to which we are required to have consideration under the Criminal Justice (Young Offenders)(Jersey) Law 1994 and we consider that this offence of affray is so serious that a non-custodial sentence cannot be justified.  On Count 1 you will be sentenced to 12 months' youth detention; on Count 4 to 6 months' youth detention, concurrent; and on Count 5 to 3 months' youth detention, concurrent, making a total of 12 months' youth detention, and we have to tell you that you will be liable to supervision when that sentence has been served. 

11.      We order that you pay compensation of £310 to Jose Magalhaes that payment to be made within one month of your release from custody and in default of payment you will serve a further two weeks youth detention.  We direct, nonetheless, that the compensation order shall not take effect until evidence of the payment of £310 by Mr Magalhaes has been furnished to the Crown Advocate and to counsel for the defendant. 

12.      We order that the knives be forfeited and destroyed.

Authorities

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