Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - assault.

[2013]JRC065

Royal Court

(Samedi)

5 April 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Liston.

The Attorney General

-v-

Alcindo Nascimento De Freitas

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

1 count of:	Grave and criminal assault (Count 1).
1 count of:	Assault (Count 2).

Age:  38.

Plea: Guilty.

Details of Offence:

Domestic violence offences committed in the matrimonial home.  Two days before the offences the defendant had seen a text message on his wife's mobile telephone reading "Hi darling, don't stress out X".  He asked who it was from and was told it was a girlfriend.  The following day they went out with their 7 year-old daughter, during which he probed further about the text, as he did when they got home.  By the end of dinner the defendant had drunk a bottle of wine and the wife an alcopop.  At some stage the wife admitted the text was from a male friend, saying it was innocent; this created an atmosphere.  When the wife and daughter fell asleep the defendant went out for a few drinks.  About 4 hours later the defendant returned drunk, entered their bedroom and repeatedly asked about the text whilst gesturing towards her with an 8 inch kitchen knife in a stabbing motion (Count 1).  The defendant put the knife in a linen basket, got into bed but continued to rant and make threats.  The daughter woke up so the wife took her to her own bedroom to sleep; the defendant followed them, slapped her twice to the face and once on the arm (Count 2), before he returned to bed.  After he fell asleep the wife left the flat with the daughter and attended the Police Station.  The police attended the flat and arrested the defendant.  In interview the defendant stated he was too drunk to remember.  No suggestion the daughter had witnessed the knife incident but had witnessed the slaps. 

Details of Mitigation:

Guilty pleas (had originally entered not guilty pleas but promptly withdrawn once granted representation with whom he could speak in his native tongue; Crown accepted he should be treated as though original pleas guilty).  Accepted wife's version of events.  Grave and criminal assault based on putting wife in fear with knife; did not knife to her or cause any injury.  Assault injuries "barely defined".  Many supportive letters.  Employer held him high regard and job still available. 

Previous Convictions:

Two offences in a two month period of 2005 - grave and criminal assault and assault on Police - attracted fines. 

Conclusions:

The Crown moved for concurrent sentences, taking the view that although separate incidents, they were parts of a single course of events.

Count 1:	18 months' imprisonment.
Count 2:	2 months' imprisonment, concurrent.

Total: 18 months' imprisonment. 

Exclusion Order sought for a period of 12 months from the date of release from prison, from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Jersey Arts Centre, the Jersey Airport, Elizabeth Harbour Ferry Terminal and the Opera House.

Forfeiture and destruction of the knife sought.

The Crown invited the Court to consider the question of a deportation recommendation but did not recommend deportation.

Sentence and Observations of Court:

The Court had given anxious thought to sentencing - able to avoid imposing a custodial sentence only because of time spent on remand, which was equivalent to a sentence of 9 months and 1 week.

Count 1:	120 hours' Community Service Order, equivalent to 6 months' imprisonment, together with a 12 month Probation Order.
Count 2:	40 hours' Community Service Order, concurrent, equivalent to 1 month's imprisonment, together with a 12 month Probation Order.

Total: 120 hours' Community Service Order, equivalent to 6 months' imprisonment, together with a 12 month Probation Order.

Exclusion Order made for a period of 12 months from the date of release from prison from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Jersey Arts Centre, the Jersey Airport, Elizabeth Harbour Ferry Terminal and the Opera House.

Forfeiture and destruction of the knife made.

No deportation recommendation but reminded of responsibility to behave as a respectable citizen. 

Ms E. L. Hollywood., Crown Advocate.

Advocate R. S. Tremoceiro for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment containing two counts of assault, one of them a grave and criminal assault.  You returned to the matrimonial home at about ten past one in the morning.  You were drunk and you went back to the argument you had had with your wife earlier in the evening.  Your wife was in bed and your 7 year old daughter asleep by her side.  You threatened your wife with a raised voice and brandished a large kitchen knife, gesturing towards her in a hostile manner.  When your daughter stirred and woke up you hid the knife behind your back and put it out of sight, and that is Count 1 on the Indictment, the grave and criminal assault.  You continued to berate your wife and when she took your daughter back to her bedroom, you followed the pair of them and slapped your wife three times, twice to her face and once to the inside of her right elbow.  As a result, at about four o'clock in the morning, your wife and daughter quietly left the flat and went to the police station, where your wife made a formal complaint. 

2.        In the case of AG-v-Da Silva [2011] JRC 113 the Court said this:-

"It has been said many times that domestic assaults are every bit as serious as assaults on strangers.  In many cases they are even worse because the victim not only suffers the violence of the assault, but also the violence within a relationship which was important to her."

3.        In the case of AG-v-Barwise [2009] JRC 182, where the victim also asked the court not to impose a custodial sentence, the court nonetheless imposed a custodial sentence and said this:-

"There is a public interest which requires the Court to demonstrate that domestic assaults of this kind are just as serious, if not more serious, than assaults in a public place.  A woman's home should be a place of safety and security for her."

4.        In the case of AG-v-Horn [2010] JRC 104 the court imposed a custodial sentence in circumstances not dissimilar from the present case, and said this:-

"First of all the message is that knife crime will be dealt with severely even though no injury is caused, and secondly, domestic violence is similarly a crime which will be treated severely.  A person's home, however big or small it is, is their refuge and if the person with whom the home is shared uses violence the victim suffers a double violation; a violation by a person they have trusted and a violation in their own home."

5.        In this case your counsel has urged us to impose a non-custodial sentence in accordance with the recommendations of the probation officer.  We have been giving this anxious thought and we are going to agree with that submission.  But I want you to know that the only reason that we have been prepared to contemplate this is the significant time that you have spent in custody on remand.  We have certainly looked at all the references which you have put before us, and we accept that you are remorseful, and we are pleased to note that you acknowledge that your abuse of alcohol is at the root of the problem. 

6.        The sentence which we are going to impose takes account of the 6 months spent in prison but it is not a soft option.  If you wish to rebuild the position in your marriage you will have to work hard at it and it will not be easy for you because we are going to impose community service which is the equivalent of 6 months, so that is 120 hours' community service.  You would have had 6 months' imprisonment if we had not been imposing that.  We are also going to put you on probation for 12 months and you must attend the courses which the probation officer requires.  If you do not attend these courses or if you do not perform the community service, then you are liable to be brought back before this Court and sentenced again for the offences which you have committed.  The sentence we impose is 120 hours' community service on Count 1 and 40 hours' community service on Count 2, concurrent, so that is 120 hours in total. 

7.        We also make an Exclusion Order for 12 months as requested. 

8.        We are not going to make any deportation order but you must be aware as a Portuguese national in our community that you have a responsibility to behave as a respectable member of our community just as everyone else does. 

9.        We also make an order for forfeiture and destruction of the knife. 

Authorities

Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998.

Immigration (Jersey) Order 1993.

AG-v-Da Silva [2011] JRC 113.

AG-v-Barwise [2009] JRC 182.

AG-v-Horn [2010] JRC 104.

Harrison-v-AG [2004] JLR 111.

Camacho-v-AG [2007] JLR 462.