Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - larceny - drunk and disorderly - conduct likely to cause breach of the peace.

[2013]JRC079

Royal Court

(Samedi)

19 April 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Nicolle.

The Attorney General

-v-

Nuno Vieira De Barros

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

1 count of:	Drunk and disorderly (Count 1).
1 count of:	Conduct likely to cause a breach of the peace (Count 2).
2 counts of:	Larceny (Counts 3 and 5).
2 counts of:	Grave and criminal assault (Counts 4 and 6).

Age:  22.

Plea: Guilty.

Details of Offence:

Count 1

In the early hours of 9^th November, 2012, the defendant, who was drunk, urinated on the cow sculptures in West Centre.  He was seen by police officers, who spoke to him.  He became verbally abusive and was arrested.  He continued to shout and swear in both English and Portuguese.  He was fined at a Parish Hall Enquiry, but failed to pay. 

Count 2

In the early hours of the morning of 4^th November, 2012, the defendant was caught on CCTV repeatedly goading a second man to fight with him.  He was shadow boxing, punching his chest and making "come-on" gestures.  He made two attempts to punch the second man, but the blows were deflected.  The second man was clearly uninterested.  When police arrived he was heard to invite the other man to fight with him.  He was warned for a Parish Hall Enquiry, but reoffended before it took place. 

Counts 3-6

In the early hours of 24^th November, 2012, whilst at a house party, the defendant stole a mobile phone worth more than £300 from a 15-year old girl (Count 3).  He claimed the girl or her 16-year old friend had stolen £20 from him.  He then left the party. 

Whilst walking home, the defendant encountered James Caulfield, whom he asked for a cigarette.  Mr Caulfield did not have one.  The defendant proceeded to punch Mr Caulfield twice in the face and kick him twice in the face when he was on the ground (Count 4).  He then stole Mr Caulfield's mobile phone (Count 5).

The only account came from the defendant as Mr Caulfield could not remember the assault due to his injuries.  His wife, who was on the telephone to him at the time, heard him repeatedly ask the defendant to leave him alone.  She found him bleeding and shaken.  Mr Caulfield required five stitches to his left eyebrow, several abrasions and amnesia.  From later symptoms it appears he was also concussed. 

About an hour after the assault on Mr Caulfield, the defendant was found by the victim of the larceny in Count 3 and her friend.  He told the girls that he would give the phone back if they returned the money he alleged they stole.  He then offered them two phones, neither of which belonged to the victim.  Mr Bouhsine walked past, and asked the girls, both of whom he knew, what was happening.  Shortly afterwards the defendant pushed Mr Bouhsine against a building, before punching him forcefully seven times in rapid succession to the right side of his face.  Mr Bouhsine crouched down, and the defendant kicked him twice to the face and then punched him once more.  Mr Bouhsine got to his feet and walked away, but the defendant followed.  He kicked Mr Bouhsine once more to the leg and then followed him out of the view of CCTV cameras (Count 6). 

He was arrested shortly afterwards.  He was abusive throughout the journey to Police Headquarters.  He was partly cooperative with police in interview.  He admitted the assault on Mr Bouhsine and the larceny of the girl's phone, but maintained that she or her friend had stolen from him.  He said that he had assaulted Mr Bouhsine because he had "joked him".

The defendant had lied about where he had got Mr Caulfield's phone, and eventually admitted to having assaulted him.  He said it was in retaliation for Mr Caulfield having sworn at him, which was disputed by the Crown as Mrs Caulfield had heard no such thing. 

Details of Mitigation:

The Crown

Guilty plea.  Partially cooperative with police.  Residual youth and no previous convictions.  Assessed as being at low risk of reoffending, but expressed no remorse at all, blaming the victims for the assaults.  The Crown regarded this as an aggravating feature. 

The Defence

Had addressed his alcohol abuse.  Was supported by his employers, who write a reference and would continue to employ him if given a Community Service Order. 

Previous Convictions:

None.

Conclusions:

The Crown submitted that consecutive sentences on the grave and criminal assault would be justified, but for totality instead increased the conclusions on the second count and moved for concurrent sentences. 

Count 1:	1 week's imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	1 month's imprisonment, consecutive to Counts 1 and 2.
Count 4:	18 months' imprisonment, consecutive to Counts 1 and 2.
Count 5:	2 months' imprisonment, concurrent  to Count 3.
Count 6:	2 years' imprisonment, concurrent to Count 4.

Total: 2 years and 3 months' imprisonment. 

Recommendation for deportation sought.

If deportation is not recommended then an Exclusion Order is sought excluding the defendant 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, the Ferry Terminal at Elizabeth Harbour, the Opera House and his place of employment, for a period of 12 months taking effect from the day on which the defendant is released from prison.

Should the Court impose a non-custodial sentence then the Crown requests that the Exclusion Order runs for a period of 18 months from today's date in the same terms. 

Sentence and Observations of Court:

There were no exceptional circumstances to justify departing from the Court's policy regarding street violence.  The custodial threshold was very firmly crossed but the Crown's conclusions would be varied to make all but one sentence run concurrently. 

Count 1:	1 week's imprisonment.
Count 2:	1 month's imprisonment, consecutive.
Count 3:	1 month's imprisonment, concurrent.
Count 4:	18 months' imprisonment, concurrent.
Count 5:	2 months' imprisonment, concurrent.
Count 6:	2 years' imprisonment, concurrent.

Total: 2 years and 1 month's imprisonment. 

Recommendation for deportation made.

No Exclusion Order made.

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced on an Indictment which contains six counts - drunk and disorderly; conduct likely to cause a breach of the peace; larceny; grave and criminal assault; larceny and a second charge of grave and criminal assault.  The two most serious charges there are the two charges of grave and criminal assault.  They took place in the early hours of the morning on the streets of St Helier and they involved kicks and punches, the kicks being delivered to two different men and were delivered to the face when the victim was crouched close to or on the ground.  One victim suffered nasty injuries, although they do not appear to have been permanent, the other victim fortunately suffered no serious injury.  You told the police at the time that you were drunk.  The Court has seen CCTV footage of the second assault which took place about an hour after the first one and, like the first assault, it was completely unprovoked and, the Court thinks, vicious.  We add that both you and the victim are lucky that the injuries were not more serious. 

2.        The Court has said on many occasions that it expects to impose sentences of imprisonment where the charge involves drunken violence on the streets of St Helier at night, unless there are exceptional circumstances.  In this case we have noted carefully the mitigation which has been very fluently advanced by your counsel; you have pleaded guilty an early stage; you have cooperated with the police; you are of previous good character; you have a good work record and a reference which we have read carefully when we retired.  You have relative youth on your side because you are aged only 22 and, of course, we have looked carefully at the background report which has been prepared.  In our view none of this amounts to exceptional circumstances and we think that the custody threshold is very firmly crossed. 

3.        The offences which form the different counts are all capable of giving rise to consecutive sentences but on grounds of totality we are not going to treat them in that way.  We think the Crown's conclusions are broadly right in terms of the quantum.

4.        You are sentenced on Count 1; 1 week's imprisonment, on Count 2; 1 month's imprisonment, on Count 3; 1 month's imprisonment, on Count 4; 18 months' imprisonment, on Count 5; 2 months' imprisonment and on Count 6; 2 years' imprisonment.  However, they will all run concurrently except Count 2, which is to run consecutively.  Accordingly, you are sentenced to a total of 2 years and 1 month's imprisonment. 

5.        We are not going to impose a Compensation order despite being invited to do so by your counsel, because you are being sent into custody and it does not appear that you have the means with which to pay it. 

6.        We have gone on to consider the question of deportation as invited by the Crown.  The law here is that following the case of the Court of Appeal decision of Camacho-v-AG [2007] JLR 462, and indeed the practice that has been adopted by this Court for many years, we have regard to two tests.  Is the continued presence of the offender in the Island to the detriment of the Island, and, secondly, what effect would the order recommending deportation have upon others not before the Court and who were innocent persons.  The second test is not material in this case because, as your counsel conceded, there are no family members whose interests need to be considered, who live in Jersey. 

7.        As to the first part of the test, it was said in Camacho that the first limb has seldom given rise to difficulty.  The continued presence of the offender being "to the detriment" and other formulations such as not in the public interest or not conducive to the public good, have been applied in England broadly, in line with the dictum of LJ Judge, as he then was, in N (Kenya)-v-The Home Secretary [2004] INLR 612 where he said this:-

"The "public good" and the "public interest" are wide-ranging but undefined concepts.  In my judgment ... broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged.  They include an element of deterrence ... so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation."

The Court of Appeal went on in Camacho to say:-

"In the Bailiwicks, similar principles are applied.  In Jersey, the courts have sometimes expressed it in terms of abuse of privilege."

8.        There is no rule that there must be more than one offence for the first part of the Camacho test to be satisfied.  The Court has to have regard to the public good and the public interest, as mentioned by LJ Judge in the quote which I have cited, and that is a test which has been frequently applied here.  The Court has absolutely no hesitation in making a recommendation for deportation.  People who come to our community should live by our rules and we have no time for conduct of this kind; it was a vicious assault and, in our view, deportation is entirely appropriate and we make that recommendation accordingly. 

9.        Accordingly you are sentenced to 2 years and 1 month's imprisonment and there will be a recommendation for deportation. 

Authorities

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

Camacho-v-AG [2007] JLR 462.

N (Kenya)-v-The Home Secretary [2004] INLR 612.

Harrison-v-AG [2004] JLR 111.

AG-v-Miller [2013] JRC 011.

AG-v-Richomme [2006] JRC 068.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey.