Jersey Unreported Judgments

[2011]JRC105A

ROYAL COURT

(Samedi Division)

27^th May 2011

The Attorney General

-v-

Ruben Jose Martins Fernandes

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

Age:  22.

Plea: Guilty.

Details of Offence:

The events were captured on CCTV to the extent that at about 01:45 the defendant and victim appear to be talking to one another.  The defendant is suddenly seen to throw the victim to the floor and then make a stamping motion on his upper body or head.  Witnesses describe him using his right foot to stamp on the victim's head. 

By his own admission the victim was drunk at the time, having been in various premises during the evening and arriving at Platinum at around midnight.  He remembers dancing on a crowded dance floor but them nothing until he was in Accident and Emergency. 

The defendant was out with friends and was also intoxicated, having consumed most of a 70cl bottle of vodka before going out, and continuing to drink vodka, alcopops, and other cocktails during the course of the evening.  In interview he claimed to have no recollection of what happened, but in the Social Enquiry Report said he did not wish the police to know of his prior involvement with the victim nor the provocative comments made before the assault. 

After the incident the defendant went outside where he was overheard to say "I just punched this fella inside and I stamped on his head".  He was arrested at the scene and made no reply following caution. 

Details of Mitigation:

Guilty plea; expressed remorse and offered to apologise to the victim.  Being 21 at the time of the offence he has the benefit of residual youth.  He has the support of an extended family and a girlfriend.  There have already been serious consequences for him in terms of losing employment and being unlikely to obtain a job in the finance sector again.  Offence was out of character. 

Previous Convictions:

No convictions for violence. 

Conclusions:

Exclusion Order for a period of 6 months following release from prison in relation to 1^st, 4^th and 7^th category licensed premises sought. 

Sentence and Observations of Court:

Exclusion Order made for a period of 6 months from date of sentencing (27^th May, 2011) relating to 1^st, 4^th and 7^th category licensed premises. 

R. C. P. Pedley, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced for a single count of grave and criminal assault.  You were seen to throw the victim to the floor and make a stamping motion on his upper body or head, and the result was that you broke his nose and we are not at the moment clear as to how permanent that injury will be. 

2.        We have read the victim's personal statement which shows that he was, understandably, very much affected by this assault.  The assault was to some extent provoked by comments which he made but those comments inflamed you as a result of the alcohol which you had consumed.  The Court has said many times that taking alcohol does not make the offence which is subsequently committed any better.  It makes it worse; it is an aggravating factor.  The Court has also said many times that assaults taking place late at night, fuelled by alcohol, almost inevitably will lead to a custodial sentence being imposed. 

3.        However in this case your counsel has very fluently put before the Court the mitigating factors which you can rely upon and the Court thinks that we can avoid, rightly, a custodial sentence here.  We take into account in particular that you are said to have acted out of character, which we accept.  Nonetheless it was a serious and nasty assault and you have to be punished for what you have done.  Sometimes it is thought that the imposition of a sentence of community service is some form of let-off or a soft sentence.  This Court knows that it is not.  A sentence of community service deprives offenders of their liberty in their leisure time but it enables them to work constructively during the working week so that they are not a burden on the public purse.  In particular the Court thinks it is important in your case that you re-establish yourself with employment as quickly as possible.  We are impressed by the fact that you have refused to rely upon benefits and accept the statement made by your counsel that it shows that you are a principled young man. 

4.        You must learn to control your drinking and the sentence which the Court is going to impose therefore mixes an element of punishment with the element of training which the Probation Service will be able to give you.  Accordingly we sentence you to 180 hours' community service, the alternative to that sentence would have been 12 months' imprisonment, and if there is any difficulty over the performance of the community service then you are at risk of being brought back to this Court and will be sentenced again and you might be sent to prison on that occasion.  We also put you on probation for a period of 18 months and you therefore must follow the instructions of the Probation Service during that time. 

5.        We impose an Exclusion Order of 6 months in respect of 1^st, 4^th and 7^th Category premises which you are therefore not to attend during that period.  The combination of these sanctions will be a serious punishment for you and should provide you with the basis for the future, to learn to avoid this sort of circumstance. 

Authorities

Harrison-v-AG [2004] JCA 046.

AG-v-Cowling [2010] JRC 015.

AG-v-Q, R and Baptista [2010] JRC 227.

AG-v-Gallery [2009] JRC 190.

AG-v-Willoughby [2009] JRC 183.