Jersey Unreported Judgments

Superior Number Sentencing - attempted murder.

[2013]JRC165

Royal Court

(Samedi)

22 August 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Le Cornu, Morgan, Fisher, Kerley, Maret-Crosby, Crill, Milner, Olsen and Blampied.

The Attorney General

-v-

Antonio Cidade Barbosa

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 10^th May, 2013, following a guilty plea to the following charge:

1 count of:

Attempted murder (Count 2).

Age:  54.

Plea: Guilty.

Details of Offence:

Barbosa and his wife (the victim) had been married for 33 years.  Their relationship had deteriorated in the last 5 years as Barbosa had started to drink heavily.  The victim had had a brief affair with a mutual friend.  Two weeks before the attempted murder, Barbosa damaged the victim's car and struck her a glancing blow with a branch.  He also made repeated threats to kill her and tried to get her sacked from her job. 

On 26^th March, 2013, the victim received multiple calls from Barbosa, as did her former lover.  She came home from work that evening and found Barbosa in the bedroom.  He launched an assault on her that included the infliction of four stab wounds.  Their landlord and his daughter, who lived above the flat, heard the victim's screams and came to her aid.  They called the police and administered first aid.  The defendant left the flat after the landlord was instructed by emergency services not to attempt to stop him.  He was arrested soon afterwards. 

The victim was tended to by paramedics and given morphine and 300 ml of intravenous fluids.  She was transferred to the High Dependency Unit at the General Hospital, and her wounds were surgically explored and closed under general anaesthetic.  She suffered stab wounds to the chest (which caused a small pneumothorax) and to the shoulder.  A stab wound to the right loin penetrated close to her liver and kidneys.  She suffered on-going pain, but an updated medical report was not available as she had withdrawn her complaint and wished to reconcile with Barbosa. 

A blood sample was taken from Barboas and back calculations show that he was almost five times over the drink-driving limit at the time of the attack.  During the custody procedure he said "I'll tell you now, I'll kill her".  In interview he answered questions about his relationship with the victim, but made no comment answers to questions regarding the attack. 

The Crown submitted that this was a pre-meditated attack. 

Reports prepared for sentencing indicated that he blamed the victim for the attack and did not take responsibility for his actions.  He was at high risk of reoffending, especially in relation to domestic violence, and remained fixated on the victim's affair.  He also consistently minimised the level of his alcohol consumption. 

Details of Mitigation:

The Crown

Early indication of guilty plea.  No previous convictions for violent offences, though the Crown noted that all of his offending was alcohol-related.  Limited mitigation found in the victim's forgiveness. 

The Defence

The attack was not pre-meditated; the threats were words in anger.  This was a spontaneous loss of control.  Intellectually impaired. 

Previous Convictions:

7 previous convictions, all motoring related.  Has been banned from driving in Jersey for life. 

Conclusions:

Count 2:

10 years and 8 months' imprisonment.

Recommendation for deportation sought.

Forfeiture and destruction of the knife sought.

Sentence and Observations of Court:

Barbosa had a lurking intention to kill, but there was no icy cold pre-planning. 

The Court commended the emergency services for their swift action.  The landlord and his daughter showed great bravery in coming to the victim's aid and protecting her from further harm. 

Count 2:

9 years' imprisonment.

Recommendation for deportation made.

Forfeiture and destruction of the knife ordered.

Ms E. L. Hollywood, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant is here to be sentenced today on one count of the attempted murder, on 26^th March this year, of his wife at her home.  The immediate circumstances around that were that he had been drinking during the day while she was at work.  At about 6:30 in the evening she returned home.  She saw that he was sitting on the bed and was drunk; the defendant said words to the effect of "You're back, whore."  He got up and went to close the glass garden door.  As he did so she thought he was going to hit her.  She tried to run away and he took hold of her left arm.  He grabbed a knife from the kitchen worktop, his wife turned her head away so that he could not stab her in the face.  As she did so he stabbed her in her left side three times in a row, once in the back and twice in the left arm and, when his wife tried to escape, the defendant stabbed her in the right side, one of which was in her right arm.  His wife ran out of the flat into the hallway, as she did so she saw the knife fall to the floor.  The defendant remained silent and did not follow her but remained in the flat. 

2.        As a result of the attack she sustained some serious injuries.  There was a deep penetrating wound which penetrated the chest and was showing the clinical finding of surgical emphysema, which is caused by air tracking out of the lung and bubbling under the skin; there was a 3cm laceration over the left shoulder blade, a 3cm deep laceration on the tip of the shoulder but at the back of it; a potentially very serious deep laceration in the right loin, which had penetrated close to Mrs Barbosa's kidney and liver; and a superficial laceration to the right arm.  Thankfully none of the wounds penetrated the vital organs, although there does appear to have been some emphysema in the lung, and fortunately the wife is expected to make a full recovery.  But there was no doubt she was in a great deal of pain and she appears to have lost approximately half to three-quarters of a litre of blood in a short period of time, causing a dramatic drop in blood pressure.  She was in sufficient pain that she could not be examined in detail until the following morning. 

3.        Now there was some preliminary leading up to this particular incident.  Over the last few years, since 2006 or so, the defendant and his wife had had some marital difficulties, particularly arising out of the defendant's drunkenness, and their relationship had become rocky.  The defendant became concerned that his wife was having an affair and he regularly accused her of this.  Although this was not true for many years, it ultimately did prove to be so and, shortly before the day on which the attempted murder took place, she did in fact have a brief affair with a mutual friend of the two of them, and that affair had ended on the 3^rd of March.  There was some escalation in the aggression which the defendant showed to his wife.  On the 3^rd March he had attacked her and their mutual friend with the branch of a tree; he threatened to kill them both; these threats were repeated on the day of the attempted murder, both in the morning and in the afternoon.  The threat was repeated again to a police officer after the defendant's arrest.  In the 2 week interval, to which I have referred, the defendant also tried to make trouble for his wife at her place of work, telling her employers she had stolen jam and some cutlery and that she should be sacked.  This course of conduct may be thought to illustrate the defendant's state of mind at that time. 

4.        The Court has had a number of reports put before it.  The psychological report describes the defendant as a man who presents as intellectually impaired, assessed as presenting a high risk of future violence within an intimate relationship.  Dr Emsley, the psychologist, said he was not taking active responsibility for his offending.  He asserted to her that he had no recall of the physical attack on his wife and she thought that he seriously minimised his alcohol consumption and was likely to be alcohol-dependent.  The psychiatrist, Dr Harrison, in his report describes the defendant as not suffering from any mental illness.  He did not describe a chronic, prominent impairment of recent memory and the doctor thought that he was not suffering from an amnesic syndrome.  The drug and alcohol report showed that the defendant had a high tolerance for alcohol; in Dr Gafoor's opinion the defendant was likely to be physically dependent on alcohol and the defendant did not express to Dr Gafoor any contrition for the offences, which he appeared to justify by citing his wife's alleged infidelity.  The conclusions from the social enquiry report is that the report writer agreed with the expert reports which I have referred to and regarded the defendant as posing a high risk towards his wife. 

5.        The Court has been asked to consider whether this was a deliberate pre-meditated attack.  The Crown takes the view that it was and relies upon the threats to kill.  The defence challenges that issue of pre-meditation.  The submission that Advocate Gollop made was that the words "I'll kill you" were just words and that Mrs Barbosa knew that and indeed that was why she had taken the defendant back and had withdrawn her complaint.  It was put to us that if she did not take his threats seriously, there is no reason why the Court should take it that he meant the words that he used.  The Court's view on all we have before us is that there was some rage boiling away in the defendant's heart.  The Court is satisfied he had a lurking intention to kill in the days before the attack itself but equally is satisfied that there was no icy-cold pre-planning in the sense of pre-meditation that is described in some of the cases. 

6.        We have also been asked to consider the extent to which there was physical harm and the rationale for that is a reference to the sentencing guidelines as issued by the Sentencing Guidelines Council in the United Kingdom.  The Court's view is that there was physical harm here but fortunately there appears not to be long-term physical harm.  The offence would have been more serious, had there been long-term physical harm.  No doubt partly because the wife has indicated her wish for a reconciliation at some point with her husband, we do not know what psychological harm has been sustained because there have been no psychological reports prepared.  Applying common sense we think there might well have been some psychological harm, but whether it is long-term or not, one cannot say and the defendant has of course the benefit of any doubt in that respect. 

7.        We wish to add something about the use of the Sentencing Guidelines Council material.  The approach to sentencing in Jersey has always been to emphasise that we are a separate jurisdiction from that of England and Wales.  There is much authority both in the Royal Court and in the Court of Appeal to this effect.  As was said in the case of AG-v-U [2011] JRC 219:-

"In Campbell-v-AG [1995] JLR 136 the five judge Court of Appeal said:-

"The Island cannot be impervious to outside influences but there are nevertheless important differences between the sentencing process in Jersey and that which obtains in England...  As we have already stated, Jersey is a separate jurisdiction and entitled to fix its own sentencing levels."

14       The important differences in sentencing process to which reference was made in Campbell include the fact that the Attorney General, who occupies a crucial role at the heart of the Island's administration, moves conclusions as to the appropriate sentence; and particularly that the sentence is assessed by two or more Jurats who are rooted in our community, people whose status reflects the trust reposed in them by an electoral college of States members and practising lawyers. 

15       We also observe that there exists in England and Wales a much wider variety of sentence than is available in Jersey.  This variety arises from legislative policy that is undoubtedly influenced by a great many factors amongst which is generally counted budgetary pressures on the prison service.  The variety of sentencing options is bound to lead to differences in approach, quite apart from the additional factors that the Court of Appeal in Gunter rightly identified, namely the small and close knit size of our community and the possibility that deterrence may be seen to be of more importance here in particular areas."

But of course, we are not impervious to outside influences; nonetheless these considerations go also to a view as to how we should treat the sentencing guidelines as issued by the Sentencing Guidelines Council.  It is clear to us that the rationale which lies behind the guidelines which have been issued is a rationale to which we can pay the greatest attention.  We agree that there are specific aggravating factors and specific mitigating factors as set out in these guidelines.  We agree that there is a distinction between the sort of conduct which amounts to planned attempts to kill and other spontaneous attempts to kill.  But we also do not think that it is right to endorse formally the starting points or sentencing ranges which are adopted by the Sentencing Guidelines Council and we therefore have approached the matter in a way which is consistent with our own sentencing policy. 

8.        The offence of attempted murder is in, some respects, a difficult offence for which to find the right sentence.  Clearly sentences for attempted murder should bear some proper relationship to sentences for murder and for serious grave and criminal assaults.  In the case of murder the two distinctions with the offence of attempted murder, absolutely relevant for sentencing purposes, are, firstly, that there actually is a death and secondly, that the intent in cases of murder is not necessarily an intent to kill because an intent to commit a grave and criminal assault is sufficient if it results in the death. 

9.        We have looked at the previous cases before this Court for attempted murder and we have, in particular, had regard to the case of Caboz-v-AG [2004] JLR 80.  The facts of that case are in some respects quite similar to this one.  It involved the use of a knife; it involved the use of a knife on a wife in circumstances where, as the Court said in the case of AG-v-Horn [2010] JRC 104, there was a double element to the offence.  The Court said this:-

"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 that they have trusted and a violation in their own home.  People who commit these offences can expect the Court to focus on the victims and not on their hardships and on their difficulties."

There are some material differences between the present case however and Caboz.  The first and the most obvious one is that Caboz pleaded not guilty.  The second is that the offence in Caboz was committed in the presence of a young child.  We think that we have to reflect those differences in the sentence which is to be imposed today. 

10.      We have noted that Mrs Barbosa has forgiven her husband for this offence, and she has withdrawn her complaint.  In that context we endorse the remarks of the Court in the case of AG-v-Baker [2011] JRC 103 where the Court said this:-

"We have taken into account that the victim has forgiven you.  That the victim has forgiven you speaks very well for the victim .....  It does not seem to us to be a very substantial point of mitigation for you and you are very fortunate to have someone who has been so forgiving, but on the basis of that forgiveness we take it that the victim recognises good qualities in you and we do allow you some credit for that."

11.      We have taken into account the previous record and in particular noted that there is no violent offending and we have also noted the history of offending with regard to the use of drink.  And finally we have taken into account the letter of remorse which the defendant has sent to us, although we temper that letter with the comments of the experts. 

12.      Taking all these matters into account, we think the right sentence is one of 9 years' imprisonment and the defendant is sentenced to 9 years accordingly. 

13.      We have also been asked to make a recommendation for deportation and we note from what Advocate Gollop has said that that is not opposed.  We think that there is no doubt that the two parts of the test set out in the Court of Appeal in AG-v-Camacho [2007] JLR 462 are met and we do therefore make the recommendation for deportation.  If it is the case that the defendant's wife wishes to follow him when he is deported, if that is the view that the Lieutenant-Governor at the time takes, then that will be a matter for her and we do not think that her Convention rights in that respect should make any difference to the recommendation, not least because she has indicated her wish to be reconciled. 

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

15.      We would like to add two other things.  The first is to commend the Emergency Services for their very swift reaction to the call that was made to them and the second, in particular, is to commend Mr Camiot and his daughter who were neighbours of the defendant and who reacted with great bravery at the time.  It would have been easy merely to note what had taken place, lock their door and telephone the police.  But they went further than that, they gave practical help to the victim and gave her additional protection and the Court wishes to express its admiration for their conduct and behaviour. 

16.      You are sentenced to 9 years' imprisonment. 

Authorities

Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment)(Jersey) Law 2005.

AG-v-U [2011] JRC 219.

AG-v-Caboz [2004] JLR 80.

AG-v-Horn [2010] JRC 104.

AG-v-Baker [2011] JRC 103.

AG-v-Camacho [2007] JLR 462.

AG-v-Rzeszowski [2012] JRC 198.

Le Feuvre-v-AG 1996/79.

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

Sentencing Guidelines Council's Definitive Guideline for Attempted Murder.

R-v-Wood [2009] EWCA Crim 651.

R-v-Hardy [2012] EWCA Crim 2671.