Jersey Unreported Judgments

[2010]JRC168

ROYAL COURT

(Samedi Division)

17^th September 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Marett-Crosby.

The Attorney General

-v-

Indalecio Dos Santos Abreu

Cristiano Jose Vieira

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

Indalecio Dos Santos Abreu

1 count of:

Attempted robbery.  (Count 1).

Age:  25.

Plea: Guilty.

Details of Offence:

The victim, a 69 year old man was walking home at night.  The defendants followed him from King Street to Garden Lane at Vieira's instigation.  When they were out of sight of the cameras, Vieira kicked him in the leg and pushed him over.  He then kicked the victim three times whilst he was on the ground.  Abreu searched the victim and although he thought he felt a wallet he did not take it.  Abreu did not engage in any violence.  He was sentenced on the basis that he had a lesser role.

Injuries - bruising over various parts of his body.  The victim produced a Victim Impact Statement. 

Details of Mitigation:

Abreu came to Jersey for work. It did not materialise therefore he had no money, no accommodation, no food.  Drug user.  Has a partner and 3 children in Portugal and Madeira.  Both parents ill - his mother terminally ill.  Made most of his time in prison.  Remorse - made immediate admissions and gave a witness statement implicating himself and his co-defendant.  Guilty plea entered on the first occasion.

Previous Convictions:

None.

Conclusions:

Count 1:

9 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

Cristiano Jose Vieira

1 count of:

Attempted robbery.  (Count 1).

Age:  18.

Plea: Guilty.

Details of Offence:

See Abreu above.

Grave and criminal assault - During an argument with his parents, Vieira got a knife with a 2 inch blade from the kitchen and confronted his father with it.  Various verbal threats including a threat to kill his father and a threat to beat his mother.  He had not done any community service and missed 3 out of 6 probation appointments.  His performance was poor at those he had attended.

Details of Mitigation:

Youth (18).  Dysfunctional background, educational difficulties.  Drug user.  Had reconciled with his parents.  Made the most of his time in prison.  Had only been on the Probation Order for a month before reoffending, so it had not had a chance to impact on his behaviour.  Wanted to remain in Jersey and work for his father.

Previous Convictions:

Only the grave and criminal assault that he was being re-sentenced for.

Conclusions:

Count 1:

2 years' youth detention.

Breach of Probation and Community Service Order: 6 months' youth detention, consecutive to Count 1 on the current Indictment.

Total: 2 years' 6 months' youth detention.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:

2 years' youth detention.

Breach of Probation and Community Service Order: 6 months' youth detention, consecutive to Count 1 on the current Indictment.

Total: 2 years' 6 months' youth detention.

No recommendation for deportation made.

R. C. L. Morley-Kirk, Crown Advocate.

Advocate J. C. Gollop for Abreu.

Advocate J. W. R. Bell for Vieira.

JUDGMENT

THE COMMISSIONER:

1.        The defendants have pleaded guilty to attempting to rob an innocent 69 year old man who was returning home on his usual route from the pub.  They had seen the victim walking in King Street and followed him until he was out of sight of the CCTV cameras.  In the view of the Crown, Abreu played a lesser role in the offence, not engaging in violence and it seems deciding not to steal any items from the victim.  The victim did, however, suffer extensive bruising having been thrown and held on the ground by Vieira with Vieira's hand over his mouth.  We have considered the victim's impact statement and he was, understandably, frightened and traumatised by this attempted robbery.

2.        Abreu admitted his involvement immediately and entered a guilty plea at the first opportunity.  Furthermore, he made a statement against Vieira which provided real assistance to the prosecution.  Vieira, on the other hand, was not co-operative and only pleaded guilty on Indictment, which, as Mr Bell, of course, pointed out, is still of value.

3.        Abreu has no previous convictions, but Vieira was convicted on 27^th April this year for a grave and criminal assault on his father, for which he was sentenced to 120 hours' community service and 12 months' probation.  He has not completed any of those hours of community service and was in the process of being returned to the Court for non compliance.  His response to supervision has been poor and he has acknowledged that he did not take either order seriously.  The provisions of the Criminal Justice (Young Offenders) (Jersey) Law 1994 apply to him.

4.        The Crown move for a sentence of 2 years' youth detention for Vieira for the attempted robbery, the revocation of the community service and probation orders and the imposition of a sentence of 6 months' youth detention for the grave and criminal assault to be served consecutively.

5.        As for Abreu, the Crown move for a sentence of 9 months' imprisonment for the attempted robbery, taking into account his lesser role and allowing a discount for his co-operation.

6.        The Crown, rightly point out, that the Courts have always taken a serious view of robbery, conduct which no community can tolerate.

7.        In terms of mitigation we have considered carefully the very full submissions made by both counsel and the reports before us. 

8.        Much of the mitigation available to Abreu has already been referred to, and taken into account, by the Crown.  He has no substantial connection with Jersey, coming here in May for a job and accommodation which, on arrival, had fallen through.  He wishes to return to Madeira where he has three young children.  The probation department are satisfied that the remorse he has displayed is genuine and that is confirmed by the letter he has written to us.  Both his parents, sadly, have cancer and whilst his father's prognosis is good that of his mother is not.  He has put his time in custody to good use and has detoxified from heroin for which we commend him. 

9.        Vieira has the benefit of his youth and a guilty plea.  He was brought up in the main by his grandparents in Madeira with only short spells with his parents in Jersey, with whom he has had a dysfunctional relationship.  He does not speak English and has very limited basic skills.  He cannot read or write.  At the time of the offence of attempted robbery, he was homeless, unemployed and had no money, as indeed was the case with Abreu.

10.      In our view, however, having taken into account everything that has been put to us by the defence, the conclusions of the Crown are both fair and correct.  Robbery is a serious offence which must be marked by a sentence of imprisonment and, in relation to Vieira and the provisions of the Young Offenders Law, we agree that such an offence is too serious to permit of a non custodial outcome.

11.      We agree with the way the Crown has reached the different sentences for the two defendants, reflecting, in the case of Abreu, his lesser role in the attempted robbery and his co-operation which went beyond a simple plea and which, we agree, should be rewarded.  We take the view that the sentence for the grave and criminal assault in relation to Vieira is appropriate and should be served consecutively.  The total sentence of 2½ years is not, in our view, excessive for these two entirely separate and serious offences.

12.      Finally, in relation to Abreu we acknowledge and sympathise with his family situation and the illness of his parents, but we do not think that this is a case where we should exercise our prerogative of mercy.

13.      Mr Abreu you are sentenced to 9 months' imprisonment.

14.      Mr Vieira for the attempted robbery you are sentenced to 2 years' youth detention.  We revoke the community service and probation orders and we sentence you to 6 months' youth detention for the grave and criminal assault to be served consecutively giving a total of 2½ years' youth detention.  We must warn you that on your release you may be subject to supervision.

15.      We now turn to the issue of deportation.  For each defendant we have to consider, firstly, whether his continued presence in the Island would be detrimental to the public good and, if so, secondly, whether his deportation would be disproportionate, having regard to his rights and those of others under the ECHR, in particular the Article 8 right of the defendant and his family to respect for their family life.

16.      Taking Abreu first, we conclude that his continued presence in the Island would be detrimental to the public good in the light of the seriousness of the offence and his assessment as being at a medium risk of reoffending.  There is no place for people who come to this Island and commit serious offences on our streets.  His counsel has confirmed that in his view both tests are met and a recommendation for deportation is not opposed.  It is clear that it would not impact on him or his family as he has no ties to the Island, his close family all being in either Portugal or Madeira, where he wishes to return.  We, therefore, recommend his deportation.

17.      Turning to Vieira, we again conclude that his continued presence would be detrimental to the public good in the light of the seriousness of the offence of attempted robbery, his assessment at being at a high risk of reoffending and his previous conviction for another serious offence, namely grave and criminal assault.  As to the second part of the test the position is, in his case, more difficult.

18.      In our view, taking into account his background and his youth and after some very anxious debate, we have concluded that it would be disproportionate to recommend his deportation.  His parents have lived here for some fifteen years and are clearly settled in the Island where they intend to remain for the long term.  They have forgiven him for the grave and criminal assault.  The family is reconciled and they have undertaken to support him and to assist him in finding both accommodation and work.  Indeed, the father is looking to employ him in his own business.  To remove that support for someone so young would, in our view, be harmful and disproportionate.  However, he must understand that if he offends again then any future Court may well feel that it has no option but to recommend deportation.  He, therefore, has this chance, which he must embrace, knowing the consequences if he doesn't.

Authorities

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