Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2012]JRC129

Royal Court

(Samedi)

29 June 2012

The Attorney General

-v-

David Duarte Ferreira Vieira

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

Age:  41.

Plea: Guilty.

Details of Offence:

On Sunday 27^th November, 2011, the defendant was in Parade Gardens; he was drinking with other persons including the victim; both parties were drunk.  Witnesses saw the defendant commit an unprovoked assault on the victim, punching him in the head several times before pulling him to the floor and kicking him several times about the head and shoulders. As a result of the assault the victim was left lying in a pool of blood.  He was taken to hospital where he was found to have sustained serious though not permanent injuries.  The defendant was identified and arrested at the scene.  When interviewed the defendant claimed not to fully remember the details of the incident due to alcohol but stated that the incident occurred due to comments the victim had made about his family. 

At the time of the offending the defendant had been subject to a Community Service Order imposed by the Magistrate's Court for offences of common assault and malicious damage.  On 16^th June, 2011, the defendant had gone to his partners flat at De Quetteville Court.  He was annoyed because he suspected her of being unfaithful.  He kicked a fire door in the communal stairwell, breaking the glass and then assaulted her by pulling her hair and grabbing her arms causing bruising.  The defendant was subsequently sentenced to a 12 month period of probation, concurrent on each count.  On 18^th November, 2011, the defendant was brought back before the Court for breaching his probation by failing to attend appointments as directed.  The Probation Orders were discharged and he was re-sentenced to 50 hours' Community Service Order for the common assault with no separate penalty for the malicious damage. 

Details of Mitigation:

Guilty plea.  The defendant was identified and arrested at the scene.  The Crown viewed the plea as inevitable and it therefore did not merit a fill one third discount. 

Aggravating features: Sustained assault involving kicks to the head with a shod foot whilst the victim was on the ground.  The defendant was drunk.  The offence was committed whilst the defendant was subject to a Community Service Order imposed for a crime of violence. 

Previous Convictions:

26 previous convictions for offences of inter alia malicious damage, theft, drugs, public order, motoring and breaching court orders. 

Conclusions:

The Crown had regard to the circumstances of the offending, the aggravating and mitigating factors and the content of the probation report and moved:-

No separate penalty for the breach of Community Service Order imposed by the Magistrate's Court dated 18^th November, 2011.

Exclusion Order for a period of 12 months sought excluding the defendant from all licensed premises 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category with the exception of shops that sell food, excluding The Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the Ferry Terminal at Elizabeth Harbour and the Opera House from the date of release from prison or in the event of a non-custodial sentence, immediately.

Recommendation for deportation sought.

Sentence and Observations of Court:

The defendant had assaulted the victim by punching him several times in the head; he had then kicked him when he was on the ground.  He had been drunk and aggressive and there was no excuse for this behaviour even if he had been provoked.  He had a poor record but the Court noted that there had been a considerable gap in his offending.  In relation to the breach offences the Court noted that he had assaulted his partner and breached his probation.  The Community Service Order had been imposed only 9 days before he had re-offended.  The Court took a serious view of violence of this nature and there was no alternative to imprisonment. 

The Court had then considered the matter of a Deportation Order.  The defendant had a history of drug abuse; he had a poor work record and had committed two crimes of violence within the last year.  The defendant was on incapacity benefit due to pain in his knee however the Court noted that this had not stopped him committing the assault.  It was clear to the Court that his continued presence was detrimental to the Island.  The Court then considered the Article 8 rights of the defendant and his family.  The Court noted that the defendant's mother and sister were in the Island.  The Court further noted that the defendant's partner was expecting his child.  The defendant did not live with his partner who had issues of her own, there were genuine concerns regarding the stability of the relationship.  The Court had weighed the facts carefully but felt that the public interest outweighed the rights of the defendant and accordingly sentenced:-

No separate penalty for the breach of Community Service Order.

No Exclusion Order made.

Recommendation for deportation made.

Mrs S. J. O 'Donnell., Crown Advocate.

Advocate R. O. B. Gardner for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Mr Vieira, even if as you say the victim provoked you, there was absolutely no excuse for what you did which involved punching him several times to the head, then kicking him about the head and shoulders several times whilst he was on the ground.  You caused cuts and bruises, so much so that he was bleeding heavily from the face after the assault when he was taken to hospital.  It is clear you were drunk and aggressive that night. 

2.        Your Advocate has put forward mitigation; he has referred to your guilty plea which does earn you credit; he has referred to the gap in your offending, you have a poor record but it is true that there was a gap of several years in your offending; but the fact is that you were before the Court in August last year for an assault on your partner.  You were placed on probation, you breached the Probation Order by not complying with the requirements and you were then given a Community Service Order only nine days before you committed this assault.  Clearly you were not deterred from committing this offence by the sentence which had just been passed on you.  Furthermore you have a poor work record; you are assessed as being at high risk of reoffending.  You have said to the Probation Service and to the Alcohol and Drugs Service that you now are determined to try and overcome your drug problem but that is a rather different attitude to that which you had as recently as last year when you were on probation when, despite the encouragement of the Probation Service, you did not wish to attend the Alcohol and Drugs Service.  All in all we are satisfied that there is no alternative to prison for this assault.  The Court has repeatedly said that it takes a serious view of violent assaults and this was certainly such an assault. 

3.        We think the Crown's conclusions are correct and therefore the sentence is one of 2 years' imprisonment.  There is no separate penalty for the breach offences because you have served the full Community Service Order. 

4.        We turn next to the question of deportation.  The first question we must ask ourselves is whether your continued presence in the Island is detrimental.  The Court has no doubt that it is.  You have a number of previous convictions, and although there has been a gap in your offending, you have committed two offences of violence within the last year. You have a poor work record and you are assessed as being at high risk of reoffending.  In those circumstances we have no doubt that your continued presence in the Island is detrimental. 

5.        What has caused us more concern is the Article 8 Human Rights of you and of members of your family.  You have been here for twenty years; you have a mother here with whom you live; you have a sister and nephew here; you have your partner and you have a forthcoming child that your partner is expecting.  We have directed our main concern towards your partner and forthcoming child as we do not have anything from your mother or sister and the concerns in relation to the partner and expected child are more immediate and greater. 

6.        It is clear from the reports that the relationship with your partner has been a rocky one.  Police have been called on occasions, you assaulted her in July and she herself, as appears from the reports, has a long-standing drink and drug problem.  She has two children but according to the Crown Advocate, one was taken into care, although now an adult, and the other is in the custody of the father.  You do not live with your partner and all in all, on the basis of the material before us, there must be considerable doubts about the stability of any relationship. 

7.        Furthermore, as we have said earlier, you have a very poor work record; you have only worked on a patchy basis (as it is described in the reports) during the twenty years you have been here.  You are in receipt of incapacity benefit because of reoccurring pain in your knee although that was not sufficient to stop you committing this assault.  You say you would like to find a job as a delivery driver, but despite asserting that you are motivated to find employment, you are currently suspended from income support because you failed to comply with their requirements to sign on as a job seeker.  When asked by the probation why this was you replied "I can't be bothered as you have to get to social security before 10:30am three times a week". So it would seem that the thought of getting to Social Security three times a week before 10:30 is sufficient to deter you from signing on for the job seeker allowance.  We have to balance the detriment to the public from your continued presence with the rights of yourself and members of your family. 

8.        Having considered the matter carefully, notwithstanding the length of your residence here, we have concluded the balance comes down in favour of the public interest.  We are therefore going to recommend deportation. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey 3^rd Edition.

Harrison-v-AG [2004] JLR 111.

AG-v-Le Mains 1996/178.

AG-v-Porteous 2001/138.

Camacho-v-AG [2007] JCA 145.