Jersey Unreported Judgments

[2010]JRC189

ROYAL COURT

(Samedi Division)

15^th October 2010

Before     :

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

The Attorney General

-v-

John Luis Gouveia

Almas Uddin

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

John Luis Gouveia

First Indictment

1 count of:

Affray (Count 1).

Second Indictment

2 counts of:

Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Counts 1 and 2).

Age:  28.

Plea: Guilty.

Details of Offence:

Indictment 1

On 26^th December, 2009, Uddin attended the flat occupied by Gouveia and his pregnant girlfriend on Mont Millais, St Helier.  Uddin claimed Gouveia owed him £80 (denied by Gouveia).  Gouveia's girlfriend was frightened by Uddin's kicking the flat door and telephoned the police.  Police attended and found no-one in the vicinity.  Later that evening Uddin returned to the flat, he claimed having received a racist text from Gouveia but this was denied by Gouveia.  Both had been drinking.  A brawl broke out between Uddin and Gouveia that spilled out onto Mont Millais.  Racist abuse, an aggravating feature, was exchanged in public by each defendant.  During the fight Gouveia produced a knife sharpening steel, he claimed later to police in order to warn off Uddin and make him leave the scene with his acquaintances who he feared would become involved.  Uddin maintained that he attended the scene alone.  Members of the public and residents witnessed the brawl and were frightened. 

It was agreed by the Crown that Uddin was less aggressive than Gouveia and he was not armed.  Each defendant suffered minor cuts and abrasions and sought to explain his side to police interview. 

Indictment 2

Previously, in November 2009, a Misuse of Drugs Law search warrant was executed at Gouveia's flat and 10.3 grams of cannabis resin and 66 mg of Diamorphine (heroin) was found and seized, both for Gouveia's personal use. 

Indictment 3

Whilst on bail awaiting sentence for the matters the subject of Indictment 1, during the evening of 15^th June, 2010, an intoxicated Uddin visited his former partner and their daughter at their home.  The victim Stearn was also present.  An argument broke out.  Uddin was told by his daughter to leave.  A fight then broke out between Uddin and Stearn, with the kitchen fridge being knocked over and finally Uddin on the floor on top of Stearn, biting Stearn's ear.  Uddin was eventually pulled off Stearn.  Uddin had bitten off a significant chunk (c.3cm x 2cm) of the helix (top rim) of Stearn's right ear.  Uddin left the scene and an ambulance was called.  The ear part could not be found.  Stearn received eight stitches to his right ear and was left with permanent disfigurement.  Uddin was arrested the next day at his home address.  In police interview he made no comment responses before breaking down in tears and the interview was terminated.  In custody since then. 

Stearn's victim impact statement described how the right ear remains obviously and permanently disfigured and painful, with the pain affecting his sleep and with its appearance causing him to be called names and with his self-confidence significantly affected. 

Details of Mitigation:

Guilty pleas at earliest opportunities.  Gouveia has two children with his partner.  Difficult domestic situation.  Character testimonials before the Court.  Probation reported moderate risk of re-offending if continues to use drugs.  Evidence from the GP that drug-free for many months and methadone dosage is being reduced successfully.  Actively taken steps to deal with alcohol addiction.  Personal, compelling letter from Gouveia to the Court.

Previous Convictions:

No previous convictions for offences of violence but many for drug-related offending, resulting in a lengthy term of imprisonment and numerous probation orders. 

Conclusions:

First Indictment

Count 1:

120 hours' Community Service Order plus a 12 month Probation Order together with a 12 month Treatment Order.

Second Indictment

Count 1:	40 hours' Community Service Order, (equivalent to 7 days' imprisonment), consecutive to Count 1 of the First Indictment.
Count 2:	40 hours' Community Service Order, (equivalent to 7 days' imprisonment), concurrent to Count 1 of the Second Indictment.

Total:  160 hours' Community Service Order, plus as 12 month Probation Order together with a 12 month Treatment Order. 

Forfeiture and destruction of drugs sought. 

Sentence and Observations of Court:

Making determined efforts to turn his life around.  The affray was serious.  Public brawling with a weapon is to be deterred.  Court accepts endeavouring to deal with drug and alcohol problems. 

First Indictment

Count 1:

100 hours' Community Service Order (equivalent to 4 months' imprisonment) plus a 12 month Probation Order together with a 12 month Treatment Order.

Second Indictment

Count 1:	40 hours' Community Service Order (equivalent to 7 days' imprisonment), consecutive to the First Indictment.
Count 2:	40 hours' Community Service Order (equivalent to 7 days' imprisonment), concurrent to Count 1 of the Second Indictment, but consecutive to the First Indictment.

Total:  140 hours' Community Service Order plus a 12 month Probation Order and a 12 month Treatment Order. 

Forfeiture and destruction of drugs ordered. 

Almas Uddin

Amended First Indictment

1 count of:

Conduct likely to cause a breach of the peace (Count 5).

Third Indictment

1 count of:

Grave and criminal assault (Count 2).

Age:  37.

Plea: Guilty.

Details of Offence:

See Gouveia above.

Details of Mitigation:

Guilty pleas; hard working; dealing with his alcohol problem.  Numerous character testimonials. 

Mistakenly believed minor daughter pregnant.  Father died in 2009. 

Previous Convictions:

Numerour for public order-type offences.  In December 2009 a binding over order only just expired. 

Conclusions:

Amended First Indictment

Count 5:

28 days' imprisonment.

Third Indictment

Count 2:

2 years' imprisonment, consecutive to the First Indictment.

Total:  2 years' and 28 days' imprisonment. 

No compensation order sought. 

Sentence and Observations of Court:

Grave and criminal assault was not in a public place unlike AG's Ref No 60 of 1996 (see below) but was in front of Uddin's minor daughter.  Given the biting and victim's permanent disfigurement an immediate custodial term is inevitable. 

Conclusions granted. 

Deportation hearing adjourned until 15^th November, 2010. 

B. H. Lacey, Crown Advocate.

Advocate C. L. Nicolle for Gouveia.

Advocate R. J. C. Wakeham for Uddin.

JUDGMENT

THE commissioner:

1.        The defendants were involved in a public altercation over a debt, causing fear to the members of the public who witnessed it.  Gouveia has pleaded guilty to affray and Uddin to a breach of the peace arising out of that altercation.  The pleas have been accepted by the Crown on the basis that Uddin was unarmed and less aggressive.  Gouveia has also pleaded guilty to possession for personal use of heroin and cannabis. 

2.        The most serious of the offences which the Court has to deal with is the grave and criminal assault committed by Uddin on the boyfriend of his daughter in which part of the boyfriend's ear was bitten off, leaving him permanently disfigured.  This attack took place in Uddin's ex-partner's home and in the presence of his daughter.  It was fuelled by alcohol and apparently arose out of his mistaken belief that his daughter was pregnant by the victim. 

3.        Turning to Gouveia; he is 28 years old with a history of heroin dependence from the age of 19.  He has no previous convictions for public order offences but numerous convictions for drug related offences.  He is currently in receipt of long-term sickness benefit as he is on the supervised methadone programme and we note how well he is progressing on that programme.  He has pleaded guilty at the earliest opportunity and we have considered all of the points put forward by his counsel and set out in the background report.  We have also considered his letter, which we thought was a good letter, well written, in which he has expressed his remorse, and his references. 

4.        The Crown have referred us to the guidance given by the Court in AG-v-Buesnel [1996] JLR 265 in relation to possession of Class A drugs and AG-v-Burrell, Brown, Mackinnon, Murray and Pankhurst [2003] JLR N 53 in relation to affray and this has been taken into account.  We are going to grant the conclusions of the Crown save in one respect; we are concerned at the apparent disparity in the sentences moved by the Crown for the affray and the breach of the peace which did arise out of this same incident.  For that reason we are going to accept the defence admission that the Community Service Order for Gouveia should be reduced to 100 hours. 

5.        Turning to Uddin, he is 36 and has a record of public order offences going back to 1995.  The offences for which he is being sentenced today were fuelled by alcohol as were his previous offences.  He has pleaded guilty at the earliest opportunity and has presented the Court with a large number of testimonials which we have considered.  We have taken into account the personal circumstances outlined by those testimonials and by his counsel. 

6.        The Crown has referred us to the case of Attorney General's Reference No 60 of 1996 [1997] 2 Cr. App. R (S) 198 where the English Court of Appeal found that 3 years' imprisonment was the minimum sentence that could be imposed for an assault in which the victim's ear was bitten.  We note, however, that the case involved two assaults in public and it would seem that what the Court of Appeal described as the growing menace of serious and wholly unjustified violence in public places was a major consideration.  The offence before us was not committed in a public place.  However, we agree with the Crown that such a vicious attack in which a large part of the victim's ear was severed has to be met with a substantial prison sentence and we are therefore going to grant the conclusions of the Crown. 

7.        Mr Gouveia, in relation to the First Indictment, on Count 1; you will serve 100 hours' community service, which is the equivalent of 4 months' imprisonment, you will be placed on 12 months' probation with a condition of attendance at the Alcohol and Drugs Service for a period of 12 months.  Turning to the Second Indictment, on Count 1; you will serve a Community Service Order of 40 hours' which is the equivalent of 7 days' imprisonment and on Count 2; you will serve community service of 40 hours', which is the equivalent of 7 days' imprisonment; all to be concurrent with each other but consecutive to the First Indictment.  That comes to a total of 140 hours' Community Service Order and 12 months' probation with an alcohol and drug centre attendance condition. 

8.        Mr Uddin, on the First Indictment, Count 5; you are sentenced to 28 days' imprisonment, on the Second Indictment, Count 2; you are sentenced to 2 years' imprisonment, consecutive to the First Indictment, and we are going to adjourn to the 15^th November, 2010, for the Crown to review whether it wishes to move for a recommendation for deportation. 

9.        We order the forfeiture and destruction of the drugs. 

Authorities

AG-v-Buesnel [1996] JLR 265.

AG-v-Burrell, Brown, Mackinnon, Murray and Pankhurst [2003] JLR N 53.

Attorney General's Reference No 60 of 1996 [1997] 2 Cr. App. R (S) 198.

AG-v-Sampson [2003] JRC 146.