Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC222

Royal Court

(Samedi)

15 November 2013

The Attorney General

-v-

Virgilio Aseron Gabriel

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

Age:  36.

Plea: Guilty.

Details of Offence:

Gabriel invited the victim, his former partner, to his flat.  After hearing that the victim had failed to take their daughter to a piano lesson as she had been helping her new boyfriend to move, Gabriel punched the victim to the head, knocking her to the floor.  He then repeatedly punched or kicked her to the head and dragged her across the floor, before kicking or jumping on her head.  The victim thought she was going to lose consciousness and screamed for help.  Neighbours came to the scene, where they found the victim bleeding and terrified and the couple's 8-year-old daughter screaming "mummy".  The victim suffered a displaced fracture to her left ulna as well as considerable facial and bodily bruising.  She also lost an incisor tooth, requiring almost £2,500 worth of dental work. 

Details of Mitigation:

The Crown

Guilty plea, cooperative with the police (though he attempted to minimise the seriousness of the offending and pass some of the blame to the victim).  Low risk of general reoffending (but medium to high risk of further domestic violence). 

The Defence

Remorse, under stress, devoted father, good references, urged an individualised sentence of a community service order.  Letter from victim. 

Previous Convictions:

Three previous convictions, including on for grave and criminal assault in 2000. 

Conclusions:

The Crown regarded the presence of the couple's child as a seriously aggravating feature.

Compensation Order in the sum of £2,495 sought.

Sentence and Observations of Court:

Domestic violence of any gravity would be taken seriously.  Custody was necessary, but due to mitigation and the letter from the victim, the conclusions would be reduced.

Compensation Order in the sum of £2,495 made.  £1,000 to be paid within 7 days and balance to be paid within 2 years, or 3 months' imprisonment in default.

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You attacked your former partner in the context of discussing why your daughter, aged 8, had missed her piano lesson.  Your former partner said that she had been helping her new boyfriend to move home, and in that attack you kicked and punched her several times to the head, causing her to scream out.  The neighbours heard the disturbance and came to calm matters down.  The police were called and the 8 year old daughter of you both saw the attack and was extremely distressed.  The victim suffered a fracture of the left arm, a broken tooth and much bruising and swelling. 

2.        It is not the first time you have committed an assault, although there have been no previous convictions for assaults on her, but in 2000 you were sentenced to community service and probation for a grave and criminal assault when you threw a glass at a man in a pub. 

3.        Advocate Corbel has spoken very strongly on your behalf.  She has said that this is an exceptional case and she has referred of course to your guilty plea; to your remorse, which we accept; to the fact that you are excellent father, having been sharing residence of your daughter prior to this incident, and you still see her regularly; to your very good work record; to the background report which says how well thought of you are by your colleagues and friends and we have read the references; to the psychological report and the background report which say that you are motivated to make sure this does not happen again.  And we have also read the letter from your former partner in which she asks for leniency. 

4.        As you can tell by the time the Court has been in the robing room, we have considered this matter very carefully.  But the Court has repeatedly said that it will treat domestic violence of any gravity very seriously, and this was a serious assault.  It had serious consequences in terms of a fracture and it was aggravated by being in the presence of your daughter.  So, despite the powerful submissions of your advocate, we think that there must be a custodial sentence.  But because of the very strong mitigation and because of the eloquent letter which your former partner has written, together with her plea that you are an excellent father and that your daughter needs you, we are willing to reduce the conclusions. 

5.        The sentence of the Court is one of 18 months' imprisonment. 

6.        As to the application for a Compensation Order, we think there should be one.  Your former partner needs to have her tooth repaired so we are going to make a Compensation Order for £2,495.  We were informed that you have £1,000 immediately available, and we think that should be paid therefore within 7 days.  As to the balance, which is nearly £1,500, we will give you 2 years to pay.  The reason for that is that with an 18 month sentence you should come out after 12 months so we are in effect giving you 12 months from when you come out to pay that balance.  We think that should be achievable because it is clear that you have a good work record and we impose a prison sentence of 3 months in default of payment. 

Authorities

Harrison-v-AG [2004] JLR 111.

AG-v-Barwise [2009] JRC 182.

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