Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC184

Royal Court

(Samedi)

20 September 2013

The Attorney General

-v-

Antonio De Sousa Capontes

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

Age:  42.

Plea: Guilty.

Details of Offence:

A group of four youths aged between 14-16, three male and one female, met in the car park of Waitrose Supermarket, La Rue des Pres, on the evening of Sunday 2^nd June, 2013.  Capontes, a Waitrose employee, drove past them, turned his car around and drove back to them briskly; once out of his car he challenged the youngsters with regard to two laptop computers which he claimed had been stolen from his car the previous day; they denied any knowledge of the laptops. 

Capontes got back into his car, rolled the passenger window down and pointed a handgun at the group, threatening to kill whomever had stolen the laptops.  He drove away, parked his car, walked back to the group and told them they had 10 minutes to leave the car park, after which he pulled his jacket back to reveal a holstered handgun, which he patted saying "I'm not afraid to use it".  The youths left the car park and called the police as soon as they were out of sight.  The call caused an armed response team to be recalled to duty.  Capontes was eventually contacted by telephone and subsequently arrested near his lodgings, under the influence of alcohol.  He took police to a tree where he had hidden the handgun.  The handgun was found to be a certified deactivated weapon, as were two other pistols and a Kalashnikov assault rifle found at his lodgings.  Assaults aggravated by second threat, abuse of alcohol (claimed to have been drunk at the time) and that he still saw himself as a victim, having had laptops stolen. 

Details of Mitigation:

Guilty plea.  No previous convictions for violence.  Had been in regular employment and provided a number of supportive letters from work colleagues who spoke well of him.  Living alone, wife and two children remaining in Guernsey. 

Previous Convictions:

Seven previous convictions but none for violence. 

Conclusions:

Total: 2 years' imprisonment. 

Recommendation of deportation sought.

Forfeiture and destruction of the handgun sought.

Sentence and Observations of Court:

The Court found the first limb of the deportation considerations satisfied however, notwithstanding the very serious nature of the offence, declined to make the recommendation as it was yet unclear as to whether the authorities in Guernsey, where Capontes' close family remain, have legislation which would allow them to display a deportation order made in this jurisdiction. 

Total: 2 years' imprisonment.

No recommendation for deportation made.

Forfeiture and destruction of the weapons ordered.

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

Advocate L. V. Marks for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You threatened three boys, two of them of 16 and one of 14, with a gun by pointing the gun at them from your car and, shortly afterwards, by revealing the gun in a holster, and indicating that you were not afraid to use it.  Now, in fact, the gun had been deactivated and could not be fired, but the youngsters were not to know that.  It must have been extremely frightening for them and we commend them for their presence of mind in calling the police immediately afterwards.  What lay behind this incident was that two laptops had been stolen from your car and you suspected these teenagers, but they had nothing to do with it, there was absolutely no excuse for what you did. 

2.        Now this Court has repeatedly made it clear that offences involving imitation firearms - and we treat the use of a real, but deactivated, firearm as being in the same category of offence as the use of an imitation firearm - will normally attract a prison sentence.  What the Court said in AG-v-Gasulla-Sole [2013] JRC 118 was this:-

"The gravity of this type of offence in relation to imitation fire arms is that they involve putting people in fear for their lives because they think they are being faced with someone holding a real gun, who might shoot them.  That is why sentences for offences of carrying imitation fire arms are severe."

The Court went on to say that in general a prison sentence was inevitable. 

3.        We have also been referred to the English case of R-v-Salnakov [2011] EWCA Crim 1803.  In that case a motorist reacted to another motorist cutting in front of him on a motorway by then driving alongside the other motorist and pointing an imitation gun at him.  In that case the defendant was a man of good character with no previous convictions.  On a guilty plea the judge at first instance imposed a sentence of 4 years' imprisonment.  The Court of Appeal said that was too much and held that the correct sentence was 2 years' imprisonment. 

4.        In mitigation we have taken into account, as your advocate has urged, your guilty plea and your cooperation; we accept you had no intention to hurt these teenagers, just to scare them; we accept you have no previous convictions for violence; we accept you have a good employment record and we have read the references and your letter of remorse.  But, despite all that, and despite what your advocate said, we cannot agree to imposing a non-custodial sentence for the use of a deactivated gun to frighten people.  Therefore I am afraid it has to be a prison sentence and we think that the Crown has made adequate allowance for the mitigation. 

5.        The sentence of the Court is 2 years' imprisonment, concurrent on each of the three counts. 

6.        We consider next the question of deportation.  We have no doubt that the first limb of the test is met.  Your continued presence in the Island is detrimental to the Island's welfare, given the seriousness of this offence, and also the fact that you are at moderate risk of reoffending.  We then have to consider the human rights aspect of making a deportation order.  We take into account that you went to Guernsey from Madeira when you were 13 and that you have spent the last six years in Jersey.  Your family, including your two sons, is in Guernsey; you have no family now in Madeira and, of course, you left there nearly thirty years ago.  Having considered all these matters we think it would be disproportionate to recommend deportation and therefore we are not going to do so in this case.  But you must realise you have been very fortunate.  This is a serious offence and deportation would very often follow from it.  So you must realise that if you stay in Jersey and if you commit any further offences, then you are likely to face a recommendation for deportation. 

7.        So that is our decision, 2 years' imprisonment and no recommendation for deportation.

Authorities

AG-v-Gasulla-Sole [2013] JRC 118.

R-v-Salnakov [2011] EWCA Crim 1803.

Harrison-v-AG [2004] JCA 046.

AG-v-Ferguson [2010] JRC 159.

R-v-Avis [1998] 1 Cr App R 420.

Camacho-v-AG [2007] JLR 462.