Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC190

Royal Court

(Samedi)

27 September 2013

The Attorney General

-v-

Vladimiro Miguel Gomes de Vasconcelos da Silva Afonso

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

Age:  33.

Plea: Guilty.

Details of Offence:

Afonso was in Havana Nightclub with friends on a Sunday night.  He became involved in an altercation with the victim who suffered the partial loss of the outer edge of an ear.  The victim was the only person willing to provide a statement to police.  A review of CCTV evidence from the nightclub showed a male being escorted from the area where Afonso was dancing with several girls, shortly afterwards three males approaching Afonso, then an altercation starting.  The last footage of Afonso shows him doubled over and held in a headlock being dragged off the dance floor and out of sight of the cameras.  The victim stated that his involvement was in trying to break up a fight; his greatest concern appeared to be whether or not he was barred from the premises.  On interview Afonso immediately admitted responsibility for the ear-biting, stating that he did this in panic as he was being choked by an assailant whom he believed to be the victim; he accepted his action had gone beyond that which might have been excusable as reasonable force, which he would have been entitled to use in self-defence.  Although the nightclub cooperated fully in the enquiry none of the other individuals involved in the altercation were identified or came forward.  Apparent racial element to the altercation - when interviewed Afonso, who is black, referred to a number of racist comments made against him before and during the altercation. 

Details of Mitigation:

Exemplary character.  Co-operative with police, fully admitted involvement from the outset, appeared genuinely distraught, apologetic and remorseful.  Guilty plea.  Assessed as low risk of reoffending, probation report recommended a community penalty.  Impeccable references, many from persons of high standing.  Had devoted much of his time to community youth projects.  Full-time employment in family business. 

Previous Convictions:

No convictions, cautions or reprimands. 

Conclusions:

Compensation order sought in the sum of £2,835.

Sentence and Observations of Court:

Compensation Order made in the sum of £2,835, to be paid within 1 year, or 3 months' imprisonment in default.

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Court has said on a number of occasions that biting is a serious form of assault and will almost invariably lead to a substantial, immediate prison, sentence.  In your case, your biting has caused the loss of part of the victim's ear, although it may be that some reconstructive surgery can be done. 

2.        Exceptionally in this case, the Crown has moved that the prison sentence should be suspended.  They have emphasised that we must sentence on your version of events, which we do.  They pointed out that you were being set upon by a number of people in the nightclub; that there had been some racial insults and that what appears to have happened is that during the course of this melee you, in panic, bit the ear of one of the people when you felt great pressure on your neck, and were having difficulty in breathing.  You were entitled to use reasonable self-defence but the Crown has said, and you have accepted, that what you did went beyond what was reasonable. 

3.        In coming to its conclusions the Crown has taken into account the fact that you admitted your part in this immediately; you cooperated completely with the police; it is apparent that you are remorseful; you are now 33 and this is your first conviction of any sort for any offence.  Furthermore it is clear from the references and the reports we have seen that you are not just somebody who has not previously been convicted, you in fact have an exemplary character.  We have had pointed out to us the charitable work that you do in seeking to help disadvantaged youngsters in Lisbon, and the other work that you do to help other people.  Now all this has stood you in good stead and you are assessed as being at low risk of reoffending and everyone seems to accept that this was completely out of character.  So it is for all those reasons that, exceptionally, in a case of this sort of assault, we are content to go along with the Crown's conclusions.  But we think a prison sentence should be imposed because, as the Court has said, biting has potentially serious consequences and the Court imposes serious sentences for such offences. 

4.        The sentence of the Court is 2 years' imprisonment but this will be suspended for 2 years.  What that means is that provided you do not commit any offence which could be punished by imprisonment within those 2 years, then you will never have to serve this sentence.  If, on the other hand, you do commit such an offence then not only will you have to serve any sentence for that offence, but you will then have to serve the 2 years for this offence. 

5.        The other matter raised is that of a Compensation Order.  We think you should pay compensation.  This assault on your part has led to very unfortunate consequences for the victim, even if he was playing some part in what led to it.  We think therefore that we should make an order in the sum suggested by the Crown, which your advocate has not opposed, so we make a Compensation Order in the total sum of £2,835.  You say that you can pay at £100 per week and that you can carry out extra work.  We think you should be given a bit more time so we are going to give you 1 year to pay that sum; so that is something like £60-65 per week.  But you must pay it within that time.  We see no reason why you should not and we impose a prison sentence of 3 months in default if you do not. 

6.        We are not going to order deportation. 

Authorities

Harrison-v-AG [2004] JLR 111.

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

Attorney General's Reference No. 60 of 1996 [(1997) 2 Cr. App. R. (S) 198.

AG-v-Sampson [2003] JRC 146.

AG-v-Gouveia and Uddin [2010] JRC 189.

Criminal Justice (Suspension of prison Sentences)(Jersey) Law 2003.

Criminal Justice (Compensation Orders)(Jersey) Law 1994.

English Criminal Injuries Compensation Scheme 2012 Tarif.