Jersey Unreported Judgments

Inferior Number Sentencing - drugs - possession - Class C - drunk and disorderly - affray - having in a public place an offensive weapon.

[2014]JRC213A

Royal Court

(Samedi)

7 November 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Clapham and Ramsden

The Attorney General

-v-

Philip Nuno Gouveia De Carvalho

Ian Stuart Richomme

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

Philip Nuno Gouveia De Caravalho

1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 1).
1 count of:	Drunk and disorderly (Count 2).
1 count of:	Having in a public place an offensive weapon, contrary to Article 43(1) of the Firearms (Jersey) Law 2000 (Count 3).
1 count of:	Affray (Count 4).

Age:  28.

Plea: Guilty.

Details of Offence:

De Carvalho seen acting suspiciously.  He was spoken to and searched by Police Officers who found him to be in possession of 85 Diazepam tablets with a street value of £85.  Accepted as being for personal use (Count 1). 

The following day De Carvalho attended at Police Headquarters in an intoxicated state.  He was argumentative and abusive.  He was arrested for being drunk and disorderly (Count 2). 

De Carvalho was detained for a short period to enable him to sober up.  When released he received calls/text messages from Richomme inviting him to meet at Convent Court.  It was alleged that De Carvalho had been threatening Richomme's younger brother and Richomme wanted to resolve matters with De Carvalho.  De Carvalho returned to his girlfriend's property and took with him two kitchen knives.  He then made his way to Convent Court.  When subsequently interviewed he denied taking the knives to the affray.  DNA analysis of the knives indicated DNA profiling matching that of De Carvalho's girlfriend and another male.  Richomme's DNA profile was not present (Count 3). 

Upon arrival at Convent Court Richomme confronted De Carvalho.  De Carvalho produced and threatened Richomme with the larger of the two knives.  Richomme ran away and was chased by De Carvalho.  He ran around the block.  Richomme stopped and challenged De Carvalho to drop the knife to "fight like a man".  De Carvalho dropped the knife and both men fought.  Punches were thrown.  Richomme inflicted a greater number of injuries upon De Carvalho than vice versa.  No serious or lasting injuries sustained by either Defendant.  The affray was witnessed by a number of witnesses from a nearby block of flats who were shocked/scared by what they saw. 

In interview De Carvalho denied any knowledge of the knives and claimed that the large black handled knife had been produced by Richomme.  Richomme gave an account consistent with the Prosecution's evidence and he subsequently provided a factual basis for his guilty plea accepted by the Crown.  De Carvalho initially offered a factual basis unacceptable to the Crown for his guilty plea but eventually agreed the Crown's factual basis for sentencing. 

Details of Mitigation:

The Crown

Guilty plea.  Not co-operative in interview.  Did not have the benefit of youth or good character.  Poor record for violence and other public order offences.  Previous convictions for possession of controlled drugs.  Had behavioural problems from a young age.  Underlying problems with alcohol and illegal drugs.  Remorse.  High risk of re-offending. 

The Defence

Girlfriend suffered second miscarriage on the day of the affray and De Carvalho had taken a large dose of valium and consumed alcohol.  Taken knives to the affray with the intention of scaring Richomme.  No intention to use.  Had not used knives in fact.  De Carvalho was acting in self-defence and sustained more serious injuries than co-accused.  Confirmed that diazepam purchased in Jersey for own use.  No previous for affray or possession of weapons.  Out of trouble for three years.  Used time on remand constructively.  Guilty plea.  Remorse.  Suggested non-custodial sentence being the appropriate sentence.  Sentences for Counts 3 and 4 should be concurrent and not consecutive as sought by Crown.  The Court should have regard to totality.  Custodial should not exceed 18 months. 

Previous Convictions:

11 convictions for 19 offences.  2 grave and criminal assaults, 3 common assaults, 2 possession of illegal drugs, malicious damage, obstruction, disorderly, DIC and other motoring offences. 

Conclusions:

Count 1:	1 month's imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	12 months' imprisonment, consecutive.
Count 4:	18 months' imprisonment, consecutive.

Total: 2 years and 7 months' imprisonment. 

Forfeiture and destruction of the drugs sought.

Forfeiture and destruction of the knives sought.

Sentence and Observations of Court:

Defendants to be sentenced for an affray which arose out of allegations that De Carvalho had threatened Richomme's younger brother.  Richomme therefore instigated the affray by texting/calling De Carvalho.  The Court had no doubt that both Defendants attended in the expectation of a fight.  De Carvalho had returned home and collected two kitchen knives.  This escalated the seriousness of the affray and the potential for serious injury. 

De Carvalho also to be sentenced for possession of diazepam, drunk and disorderly and possession of the two knives.  The Court summarised the facts relating to the affray.  Both defendants had bad records and both assessed at high risk of re-offending.  De Carvalho aged 28 and Richomme aged 20.  He had the benefit of youth but was in breach of previous Binding Over Order.  Affray was a serious offence.  Custodial sentence normally justified. 

In mitigation De Carvalho had guilty plea, co-operative to some extent although had alleged Richomme had produced the knife.  The Court had regard to the letters and all the other mitigation put before it.  Richomme had the benefit of guilty plea and co-operation and also benefit of youth.  It had considered the letters and all other material put before it in mitigation.  The Court reached three Conclusions:-

1.      Agree with Defence that it was De Carvalho bringing the knives to the incident that made it so serious.  Without the knives likely to have been charged with breach of the peace.  Richomme's culpability was therefore lower than that of De Carvalho. 

2.      Richomme fell within the terms of the 2014 Law and Court was not satisfied that no other alternative was available.  The Court satisfied that CSO was an available option. 

3.      De Carvalho had introduced the use of the knife but a consecutive sentence would be doubling his criminal culpability.  A concurrent sentence was therefore appropriate for De Carvalho on Counts 3 and 4. 

The Court restated its normal policy that those involved in an affray could expect prison. 

Count 1:	1 month's imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent to Count 4.
Count 4:	18 months' imprisonment, consecutive.

Total: 19 months' imprisonment. 

Forfeiture and destruction of drugs ordered.

Forfeiture and destruction of the knives ordered.

Ian Stuart Richomme

1 count of:

Affray (Count 4).

Age:  20.

Plea: Guilty.

Details of Offence:

See De Carvalho above.

Details of Mitigation:

The Crown

Guilty plea.  Co-operative.  Remorse.  Not of good character and a number of previous convictions for violence and public order offences.  Benefit of youth.  Aged 19 at the time of offence: age 20 at the time of sentencing.  Regard had to Article 4(2) of the 2014 Law but the Crown contended that no other method of dealing with Richomme other than a sentence of youth detention. 

The Defence

Guilty plea.  Co-operation.  Recognised serious offence.  Incident escalated by De Carvalho bringing knives.  If there had been no knives then likely charge would have been breach of the peace by fighting.  Lesser degree of culpability therefore on the part of Richomme.  Lower end of scale for offences of affray.  Richomme had greater mitigation e.g. youth etc.  Making efforts to change.  CSO appropriate sentence for this defendant. 

Previous Convictions:

11 convictions for 28 offences.  Grave and criminal assault, 2 for common assault, possession of offensive weapon, possession of controlled drugs, motoring, obstruction, resisting Police, DIC and other motoring offences. 

Conclusions:

Count 4:

18 months' youth detention.

Breach of Binding Over Order: 1 month's youth detention, consecutive to Count 4. 

Total: 19 months' youth detention. 

Sentence and Observations of Court:

See De Carvalho above.

Count 4:

180 hours' Community Service Order, equivalent to 12 months' youth detention.

Breach of Binding Over Order: 10 hours' Community Service Order, equivalent to 1 month's youth detention, consecutive to Count 4. 

Total: 190 hours' Community Service Order, equivalent to 13 months' youth detention. 

J. C. Gollop, Esq., Crown Advocate.

Advocate E. L. Burns for De Carvalho.

Advocate A. M. Harrison for Richomme.

JUDGMENT

THE commissioner:

1.        The defendants stand to be sentenced for an affray which took place on 6^th July, 2014, outside Convent Court.  The affray arose out of alleged threats made by De Carvalho to Richomme's younger brother.  Richomme instigated the affray by telephoning and texting De Carvalho to meet him to resolve matters and there is little doubt in our minds that both men attended in the expectation that there would be a fight.  De Carvalho went home first and collected two knives which he took with him, a conscious decision that had the inevitable conclusion of escalating the seriousness of the affray and the potential for serious injury.  He is be sentenced in addition for having an offensive weapon in a public place; he is also to be sentenced for an offence committed the day before of possession of a small personal quantity of diazepam, and for being drunk and disorderly earlier in the day of the affray. 

2.        Going back to the affray, when the two defendants met, De Carvalho approached Richomme and threatened him with the larger of the two knives.  Richomme started to run away and was pursued by De Carvalho.  The two men ran round the block with De Carvalho pursuing Richomme to the car park area where Richomme turned and challenged De Carvalho to drop the knife and "fight like a man".  De Carvalho did so and a fight ensued witnessed by a number of members of the public.  A friend of Richomme moved the knife out of the reach of the two men who continued to fight until the police arrived.  The incident was clearly frightening and indeed shocking to those who witnessed it. 

3.        Both men have bad records and both are assessed at a high risk if reoffending.  De Carvalho is 28 and therefore does not have the benefit of youth whereas Richomme, at 20, does so and the provisions of the Criminal Justice (Young offenders)(Jersey) Law 1994 apply to him.  In addition Richomme is to be sentenced for a breach of a Binding-Over Order imposed by the Magistrate on 26^th April, 2014. 

4.        Affray is a serious offence; this was a fight between men in public in a residential area involving a knife, the use of which was premeditated.  It did cause public fear and, depending upon the involvement of any defendant in such an offence, a custodial sentence would ordinarily be justified. 

5.        The Crown have moved for a sentence of 18 months' imprisonment for De Carvalho for the affray and 18 months' youth detention for Richomme.  The Crown seek a consecutive sentence of 12 months' imprisonment for De Carvalho for the possession of the two knives. 

6.        In terms of mitigation De Carvalho pleaded guilty.  He cooperated with the police to some extent but he did deny the use of the knives and, indeed, alleged Richomme was the one who had produced the larger of the two knives.  We have considered his letter and all of the information put before us by Advocate Burns on his behalf. 

7.        Richomme also pleaded guilty.  He was cooperative with the police and, as we have already said, he does have the benefit of youth.  We have considered his letter carefully and the letter from his mother and again taken into account all of the mitigation put forward on his behalf by Advocate Harrison. 

8.        We have reached three conclusions in relation to this case.  Firstly, we agree with Advocate Harrison that it was the knife that made this offence of affray so serious and that without its involvement the defendants would more likely have been charged with breach of the peace by fighting.  It was De Carvalho who brought the knife to the incident and threatened and chased Richomme with it.  Accordingly, in our view, Richomme's involvement in the affray was less than that of De Carvalho.  Secondly, Richomme does come under the Young Offenders Law and in our view his involvement in the affray was not so serious that a non-custodial sentence cannot be justified.  In our view his youth and the other mitigation put forward on his behalf does justify a Community Service sentence as a direct alternative to youth detention.  Thirdly, the sentence which we will impose upon De Carvalho for the affray includes his use of the knife.  In our view it would be double counting for him to receive a consecutive sentence for carrying those knives. 

9.        Before imposing the sentence we wish to reiterate the policy of the Court that anyone carrying or using a knife in public can expect to be imprisoned. 

10.      Turning to the sentence therefore, De Carvalho, on Count 1; possession of a controlled drug, you are sentenced to I month's imprisonment, Count 2; the drunk and disorderly, you are sentenced to 1 month's imprisonment, concurrent, Count 3; possession of the offensive weapons, you are sentenced to 12 months' imprisonment, concurrent to Counts 1 and 2 and to Count 4; the affray, you are sentenced to 18 months' imprisonment, consecutive.  That makes a total of 19 months' imprisonment. 

11.      Richomme, Count 4; the affray, you are sentenced to 180 hours' Community Service, which is the equivalent to 12 months' youth detention, and in respect of the Magistrate's Court's binding over order, we agree that a consecutive sentence should be imposed and for that you are sentenced to 10 hours' Community Service, consecutive, which is the equivalent to 1 month's youth detention, which gives rise to a total sentence of 190 hours' Community Service, which is the equivalent to 13 months' youth detention. 

12.      We also order the forfeiture and destruction of the drugs seized from De Carvalho and the two knives seized at the scene of the affray. 

13.      Mr Richomme, we want to make it very clear to you that in terms of the mitigation that has been put before us today, we have given you a chance to deal with this in the community, but you must understand that if you fail to carry out the community service and you are brought back before this Court, you will almost certainly be sentenced to youth detention so this is your chance, please take it. 

Authorities

Criminal Justice (Young offenders)(Jersey) Law 1994.

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