Jersey Unreported Judgments

[2011]JRC109A

Royal Court

(Samedi)

6 June 2011

The Attorney General

-v-

Isidrio de Costa Rodrigues

Appeal against the Magistrate's sentence.

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

Advocate R. Tremoceiro for the Appellant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an appeal against sentence by Mr Isidro de Costa Rodrigues, who on 10^th May, 2011, was sentenced to 3 months' imprisonment and ordered to pay compensation of £500 or two weeks' imprisonment in default, having been convicted of having committed a common assault on the victim.  He appeals only against the sentence of imprisonment. 

2.        The circumstances presented to the Magistrate were that at approximately 5:10pm on 1^st March this year, the appellant, who was drunk, attended at an address where the victim was.  He remonstrated with two females at the premises in respect of a payment which was claimed to be outstanding.  They refused him entry by holding the door closed, but he forced the door open.  They asked him to come back later when he was sober.  Instead he forced his way into the premises, took hold of the victim by the side of her neck and pulled her outside the premises as a result of which she fell to the pavement.  He ended up on top of her, straddling her and while in that position raised a clenched fist into the air as if he was going to strike her.  A witness at that stage pulled him off the victim, and the appellant walked away making threats saying "you are going to pay either in a good or a bad way".  The victim was seen by the force medical examiner later that day who observed generalised scratchings and linear abrasions to the front of her neck consistent with being repeatedly grabbed.  There was a slight area of pale redness on the right hip which could have been down to earlier bruising, or could have been caused by leaning against an object, but also could have been caused by falling on the right side. 

3.        In sentencing the Magistrate said:-

"This was a very serious unprovoked assault.  You pleaded guilty to common assault but the facts have to be considered carefully when sentencing.  It is not in doubt that you were drunk when you went to Belmont Road.  You went there, perhaps in a drunken confusion, but you went to a particular house because you believed that someone in that house owed you some money so you were conscious enough to direct yourself to that house.  You forced your way into someone's privacy.  You forced a door against your victim who was pushing on the other side.  That is a very serious thing to do.  It was dark, it was evening and you broke into someone's home against their will.  Having done so in the face of protest, you grabbed somebody you hardly know.  A woman you hardly know, by the neck with sufficient force that you leave scars on the neck and scratches, abrasions which were later seen and remarked by a medical examiner.  You pulled your victim out into the street where she fell on the ground and it is said that you fell upon her.  The fact is and it was not an issue that you were kneeling astride her body.  A very convenient position to further carry out assault and the witnesses say that you raised your fist as though to strike her.  You did not strike her because at that moment you were pulled off your victim by a bystander and a witness.  You left the scene threatening and your threats were clearly intended to intimidate and to cause fear...". 

4.        The Magistrate later said that in his opinion the offence required a deterrent sentence. 

5.        The first point taken on appeal is that the Magistrate gave no warning to counsel of his proposal to depart from the recommendation in the social enquiry report, which was for a Community Service Order combined with an appropriate fine or compensation.  The basis of this submission lies in the case of DB-v-AG [2008] JRC 120.  In that case, the Youth Appeal Court dismissed an appeal against the imposition of a Community Service Order because it found that it had no jurisdiction to deal with the appeal.  In what was clearly an obiter comment, the Court then added that:-

"Secondly it is clear that Advocate Tremoceiro mitigated in the Court below solely on the basis of the recommendation in the probation report that a binding over order should be imposed and he did so in the expectation that it was likely that this recommendation would be followed.  It clearly came as a shock to him and to the appellant and his mother when the sentence of community service was imposed.  Now it is, of course, counsel's duty to prepare for all eventualities but in the Youth Court and in the Magistrate's Court, where no conclusions are moved for by the prosecution, we think it is only fair for the Court to indicate if it is considering a more serious sentence than is recommended by the probation report, particularly if counsel appears to be proceeding on the assumption that the recommendation is almost certainly going to be followed.  Such an indication at least gives counsel the opportunity of addressing the matter and putting forward any additional reasons which he or she may wish to put forward against the more serious sentence being contemplated by the Court". 

6.        In our judgment, the failure of the Magistrate to give such notice is not of itself a good ground of appeal.  Where the Youth Court or the Magistrate's Court is considering a different kind of sentence than is recommended in the social inquiry report, we agree that it is good practice to say so to ensure that counsel knows what point or points should be addressed.  But it is only rarely that this would be an appeal point.  Counsel should not make assumptions, and should mitigate appropriately in every case. 

7.        In this case, it was clear that counsel was aware that a custodial sentence was a possibility.  Indeed the closing remarks in mitigation indicated that counsel respectfully agreed with the Probation Service that the direct alternative to custody was the most appropriate disposal to the case, and a custodial order would jeopardise the appellant's business and cause hardship to his family.  No fair trial issue therefore arises on this appeal in this respect.  The absence of a warning from the Court does not fall into the same category as DB-v-AG. 

8.        The second point taken is that in some respects the Magistrate took into account matters which were inconsistent with the witness statements.  In some respects, that objection has at least some basis behind it.  The Magistrate referred to the assault having taken place when it was dark, and that was not correct.  The appellant complains that the sentence was imposed on the basis that the appellant did not strike the victim only because he was pulled off by a bystander.  The Magistrate was entitled to reach that view on the evidence.  The appellant left the scene threatening the victim.  Witness A said this in his witness statement: 

"[The victim] landed on her back and Isidro quickly sat on top of her with his legs on both sides of her.  He then raised his right hand in a clenched fist and was about to hit her.  [The victim] is then and Isidro is fat and big so I felt if he hit it would cause serious injuries."

Witness B said this:-

"I saw him grabbing [the victim] by her throat and turning and throwing her onto the pavement in Belmont Road.  [The victim] grabbed hold of Rodrigues's clothes and they both landed on the floor.  He then tried to get up and sat on her legs and I thought he is going to punch her, so I called the police". 

9.        It is also said the Magistrate exaggerated the injuries of the victim, referring to scars on the neck, where in fact they were only scratches and abrasions. 

10.      In relation to the reference to scars and it being dark, the Court's view is that the language of the Magistrate may have been rather more loose than would have been desirable but that he was perfectly entitled to take the view that this was indeed a very serious unprovoked common assault, involving as it did the appellant deliberately forcing his way into a property in the early evening and in a drunken state, grabbing the victim by the neck, pulling her out onto the pavement outside and, straddling her body, raising his fist as if to strike her.  She must have been very frightened.  The fact that he was pulled off her, and left making further threats against her, will have added to that fear of injury. 

11.      We do not take the view that the Magistrate sentenced the appellant for an offence he had not committed.  The Magistrate was entirely entitled to take into account the background circumstances when considering this particular assault.  In Self-v-AG [2010] JCA 061, at paragraph 42, the Court of Appeal sets down the jurisdiction of the Court to interfere with the sentence pronounced below.  We adopt that as the right approach to take in relation to sentencing appeals from the Magistrate's Court to this Court.  No question arises that the sentence was not justified by law in this case.  It is not suggested that the sentence was manifestly excessive.  It appears to us that the allegations in this case go nowhere near meeting the criteria set out in Self-v-AG, as to whether the sentence has been passed on the wrong factual basis or the Magistrate took into account matters he ought not to have taken into account. 

12.      Reference has been made to the comments of the Magistrate in relation to the references passed up as to the appellant's character.  The Magistrate said these were not relevant to the offence which he had committed.  That seems to us to have been a legitimate comment to make.  The references do go to personal mitigation, and the weight which the Court gave to that mitigation was a matter for the Magistrate.  In the balance, the Magistrate was entitled to take into account, as no doubt he did, that the appellant did not have a good record, though he has not committed offences for 12 years, and had committed assaults on both men and women in the past when under the influence of alcohol.  He was entitled to take into account, as he clearly did, that the offence was aggravated by the appellant's drunkenness.  We think the Magistrate was entitled to conclude that a custodial sentence was necessary to reflect the serious unprovoked assault on a woman. 

13.      For all these reasons the appeal is refused. 

Authorities

DB-v-AG [2008] JRC 120.

Self-v-AG [2010] JCA 061.