Jersey Unreported Judgments

[2010]JRC237

ROYAL COURT

(Samedi Division)

22^nd December 2010

The Attorney General

-v-

Virgilio Ferdinando Pita Mendes

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

Age:  36.

Plea: Guilty.

Details of Offence:

The defendant had been working as a security guard at the Havre des Pas Sea Food fayre and finished work at approximately 19:00 hours.  He then stayed on drinking.  At approximately 23:35 hours he was standing talking to door staff outside the Havana Nightclub in Bath Street.  The CCTV then showed him following and approaching a female who is then lured back into camera shot and sat down on a concrete planter.  The defendant then indecently assaults her by trying to put his hand up her skirt and by placing her hand on his groin area.  He attempted to put his hand between the victim's legs on at least three occasions.  The incident lasted approximately 6 minutes after which the defendant simply walked away.  The victim who was drunk was subsequently identified from the CCTV footage and when approached by police made a complaint.  She did not know the defendant (Count 1). 

The second victim was a 21 year old who had also consumed a considerable amount of alcohol and was approached by the defendant and led into a garden area off La Motte Street.  The incident was, once again, caught on CCTV.  The defendant attempted to kiss the victim but she forces her neck back and is resisting the attentions of the defendant.  She was then picked up off her feet and carried for several yards.  She then escapes from the defendant but has to return as she had left her handbag in the garden.  She was once again led out of sight of the camera by the defendant and the victim said at some point her breasts were touched through her outer clothing and that at one point she was placed on her back on the ground with the defendant astride her and he was trying to pull her leggings down but she was able to prevent him from doing so.  The incident was brought to an end by the intervention of a passer-by who had seen the defendant with his hands round the wrists of the victim and pulling her out of sight.  The witness described the victim as being petrified, as being hysterical.  The witness left the victim in the care of some passing friends but he attended at Police Headquarters to ensure the matter had been reported and was able to provide a clear description of the defendant which led to his identification. 

The defendant was arrested and interviewed and admitted that he was the man seen on the CCTV footage on the two instances.  He was unable to provide an explanation for his behaviour other than he was drunk.  He offered his apologies. 

The Crown categorises the behaviour of the defendant as that of a sexual predator against two drunk and, therefore, vulnerable females. 

Details of Mitigation:

The Crown

Guilty pleas when before the Magistrate's Court.  Remorse and letters of apology to the victims.  A mature man of previous good character. 

The Defence

Accepted that his behaviour was wholly unacceptable.  Accepts the fear and distress caused to the victims and apologises to them.  No use of weapon, threats or violence used on wither victim.  Was not in a position of trust to either of them.  Indecent assaults involved inappropriate touching over clothing.  He was unable to explain why he had behaved in this way.  He was otherwise an exemplary character.  Offences arose out of a momentary loss of self control.  Emphasis on early guilty plea and co-operation.  A mature man of 35 who had a variety of different employments for the benefit of his partner and her two children who treated him as a father figure.  Previously been a constable's officer for a number of months.  Family unit would struggle without his financial contributions.  Suggested community service as direct alternative to custody. 

Previous Convictions:

None. 

Conclusions:

The defendant had been served with a Section 6(2) Notice of the Immigration Act 1971 and whilst the Crown felt that the first limb of the test was met on balance it did not think that the second limb of the test was met and, therefore, did not seek a recommendation for deportation. 

Total:  2½ years' imprisonment. 

Sentence and Observations of Court:

The defendant had been charged with two counts of indecent assault on females aged 33 and 21.  Assaults were committed late at night in St Helier and in each the victims were vulnerable having both consumed alcohol.  The defendant also had consumed alcohol and clearly played its part in the commission of the offences.  The Court noted that there were many good things to say on behalf of the defendant, that he was of good character, in full time employment and supportive family.  Offending was clearly out of character.  Showed remorse for what he had done.  The nature of offending was different in the two counts.  The first count he had attempted to put his hand on the inside of the woman's leg and her hand on his groin area.  The second count was much more serious.  The assault had taken place in a more secluded place and there was an element of attraction by taking her into the garden area and out of public view.  This victim was petrified by the assault.  Only prevented from committing a more serious offence by the actions of Mr Le Marrec who the Court commended for his actions both in his initial intervention and also by attending at Police Headquarters and providing information that identified the defendant.  Sentence to be imposed had to be appropriate for punishment but also to send out a signal that Court would not tolerate violent assaults on females who were going about their lawful business.  The Court concluded that the Crown's conclusions were too high but the offending warranted a custodial sentence. 

Total:  18 months' imprisonment. 

Deportation

The Court took the view that the continuing presence of those who committed indecent assaults on females would be detrimental to the community but having regard to the defendant's personal circumstances the Court was more than satisfied that it would be disproportionate on this occasion to recommend his deportation.  No such recommendation was, therefore, made. 

J. C. Gollop, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Mendes, you are before this Court charged with two counts of indecent assault, one on a female person aged 33 and the other on a female person aged 21.  These assaults took place late at night in the Parish of St Helier.  In each case the victims were vulnerable women who were alone and there is no doubt that you too had been out drinking and that alcohol played a part in the offending which took place. 

2.        You have many things to be said in your favour.  You are of good character; you have established a good business; you have been supportive to your partner and her family over the last 10 years.  The Court has no doubt that you are remorseful and notes in particular that you have apologised to the victims and these are all important things which we have taken into account, because at the end of the day the Court does consider this offending to be out of character.  Nonetheless the offences have been committed and you must be sentenced for what you have done. 

3.        The nature of that offending is different in the two counts.  In relation to the first count the offending amounted to attempts to stroke the inside of the leg of the victim and to have her stroke the inside of your leg in a public place.  The second count is much more serious because on that occasion the assault took place in a more secluded area and there was an element of abduction in the sense that you took her into that area, away from the public gaze and indeed out of sight of the CCTV cameras.  The Prosecution report states, and there has been no contesting of this, that the victim was petrified by your assault.  It was only because of the conduct of Mr Ian Le Marrec, whom the Court commends for his assistance, that matters did not go any further; and he is commended not just for taking the trouble to ascertain what was happening to go to her help, but also for attending at Police Headquarters the following day. 

4.        The Crown says in its conclusions that an appropriate sentence should be imposed not only to punish you but to act as a deterrent to other males who may think that drunken females are easy targets to satisfy their sexual needs, and the Court accepts that there is the need, both to impose a sentence which is appropriate as punishment for what you have done, but also as a signal that the Court will not tolerate indecent assaults of females who are alone and vulnerable. 

5.        In those circumstances the Court has looked closely at the Crown's conclusions which are balancing the mitigation that you have available with what you have actually done, and the Court thinks that the conclusions are too high, but that it is inevitable that a custodial sentence must be imposed.

6.        We sentence you on Count 1 to 9 months' imprisonment and on Count 2 to 18 months' imprisonment, concurrent, making a total of 18 months' imprisonment. 

7.        The Court has also considered the question of a recommendation for deportation as the Crown has requested.  We take the view that the nature of the offending is such that your continued presence in the Island, if there were not other matters to be taken into account, would indeed be detrimental to the community based on that offending but, having regard to all the matters which personally affect you and your partner, it would not be proportionate to make a recommendation for deportation on this occasion and the Court therefore does not do so. 

Authorities

Whelan on Aspects of sentencing in the Superior Court of Jersey.

Camacho-v-AG [20078] JLR 462.

AG-v-Sousa 2001/219

AG-v-Ferreira 2002/172.

AG-v-Nicholson 2001/140.