Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - common assault - malicious damage.

[2014]JRC223

Royal Court

(Samedi)

14 November 2014

The Attorney General

-v-

Marco Antonio Pestana Da Silva

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

Age:  27.

Plea: Guilty.

Details of Offence:

Pleas placed the defendant in breach of Magistrate's Court 12 month Probation Order and Community Service Order of 150 hours in respect of an offence of common assault against the same victim. 

The defendant was in a relationship with the victim for approximately 2 years.  There was a child of the relationship.  Following the break-up of a relationship in January 2014 the defendant assaulted the victim which was dealt with by a non-custodial sentence before Magistrate's Court. 

On 3^rd May, 2014, the defendant attended at the victim's home and an argument ensued.  The victim was holding their 5 month old child when she was assaulted by the defendant: grabbing the victim's face and hitting her in the face.  She sustained a scratch below her nose and on her chin.  She placed the child in her bed.  She told the defendant to leave but he refused.  The defendant grabbed at the victim's face with both hands throwing her head against a glass TV stand.  He pinned her on the bed and continued to hit her either with an open hand or a closed fist.  She had red marks and a bruise to her left cheek bone.  The child was present throughout the assault.  After the defendant left she took photographs on her mobile phone of her injuries. 

On 8^th July the defendant telephoned the victim to arrange a visit with the child.  The defendant was told it was inconvenient.  The defendant then attended the victim's flat and an argument ensued.  He accused her of seeing other men and he became angry.  The victim tried to push him out of the flat and they ended up on the floor in a struggle and he pulled her hair and then hit her in the face.  He left the flat.  The victim called the police who attended.  The defendant hid outside and when the police left he returned and made demands concerning contact with the child.  He made threats towards the victim and then deliberately smashed a window pane with his right elbow.  When interviewed he claimed that the victim had assaulted him.  He denied assaulting the victim.  He claimed to being pushed against the window.  He denied any assault occurring in May. 

The Crown had regard to the relevant factors in Harrison v AG in assessing the seriousness of the case.  Identified aggravating factors of assault taking place in the sanctuary of the victim's home and in the presence of a very young child. 

Details of Mitigation:

The Crown

Guilty plea.  Medium risk of re-conviction. 

The Defence

Acknowledged that these were serious offences and that only a custodial sentence was appropriate.  The defendant had struggled with the break-up and loss of daily contact with child.  Ashamed of his behaviour.  Letter of apology to Court and the victim and character references.  Seeking help from prison psychologist re anger management and emotional issues and was taking English lessons to improve himself so that he could find better employment to support child.  Alcohol and drugs not relevant to the case.  Guilty plea, disruptive upbringing.  Limited criminal record.  Offer of employment upon release. 

Previous Convictions:

2 convictions for 4 offences: common assault, possession of an offensive weapon, motoring offences. 

Conclusions:

Breach of Community Service Order:  3 months' imprisonment, consecutive to Counts 1 and 2. 

Total: 21 months' imprisonment.

Sentence and Observations of Court:

The defendant is to be sentenced for three counts on the Indictment.  There was also the matter of committing offences whilst on probation for assault.  Present counts committed on his ex-partner in her home in the presence of the young child.  The Court summarised the facts and had noted the content of the victim personal statement in which she stated that she was scared, had lost her confidence and was frightened of what might happen to her when the defendant was next in contact.  Not the first occasion he had assaulted her. 

The Court noted everything that had been fully said by defence counsel.  The defendant had realistically expected a custodial sentence.  The Court noted the contents of the letters in which he had said all the right things and the Court expressed the hope that he had meant them.  The Court treats offences of domestic violence very seriously.  Assaults on the ex-partner were in her own home where she should feel safe and secure.  The Crown's conclusions were right.  The Court expressed the hope that he would attend the ADAPT programme when released. 

The Court also agreed with the Crown on the issue of deportation that it would not be proportionate.  However, the defendant was warned that if he appeared before the Royal Court again on similar facts then the question of deportation would be re-visited. 

Conclusions granted.

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

Advocate L. McClure for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Da Silva, you are here to be sentenced on one count of grave and criminal assault, a common assault and one count of malicious damage and, by reason of your offending, you are back in Court for the offence of assault for which you were put on probation and given community service by the Magistrate so we come to look at that offence as well. 

2.        Dealing with the present Indictment, the assaults were committed on your former partner in her home, in the presence of your and her one year old child.  You had separated from her in January this year.  It is just worth looking at the nature of the grave and criminal assault.  Your former partner was actually holding the child at the time.  You grabbed her face; she reckoned that you about to assault her, she told you to leave but you refused; she cannot remember now whether you used an open hand or a closed fist, but she sustained a scratch below her nose and on her chin and she placed the child in her bed and again told you to leave.  You then grabbed her face with both hands, throwing the back of her head against a glass television stand, you pinned her down onto the bed and you continued to hit her with an open hand or a closed fist, and she tried to protect herself and, despite this, she was left with red marks and bruising and eventually you left. 

3.        You will have had the opportunity of reading the victim personal statement that has been made by your former partner and in that she says how she is now scared that you would be following her around, that she has lost her confidence and she is frightened for what happens if you get a custodial sentence for when you come out. 

4.        It is not the first occasion, that occasion in May that I have just described, that you have been before the Court for domestic violence because of the assault for which you were given probation in April this year, and the position is aggravated by the fact that in July this year you went to see her again and, again, assaulted her, hitting her on the face with either the back of the hand or the palm and injuring her then. 

5.        The Court has noted everything that has been said very fully by Advocate McClure on your behalf.  We note that you have pleaded guilty, we note that you have very realistically accepted that a custodial sentence is going to have to be imposed and we note all that has been said about how you appreciate how wrong you were and, indeed, the letters which you passed up, the letter to your former partner and to the Court say all the right things.  The important thing is you should mean them and, of course, we do not know that yet, but you need to mean them because you should realise by now that the Court treats offences of domestic violence with great seriousness.  Assaulting your former partner in her home is worse than just the assault because you assault the very structure which she builds around herself to make her feel secure, you undermine her confidence in the very place where she should feel confident and bring up her child confidently, and it is therefore a very serious offence. 

6.        We think the Crown has got the conclusions absolutely right and we have every expectation in the light of what your counsel has said that during your prison sentence you will give attention to improving your skills, that you will, we hope, make use of the ADAPT course when you come out because you have got to realise that, for your future relationships and for your relationship with your child, who obviously means a lot to you, that you have got to tackle these problems in your makeup. 

7.        In the circumstances you are therefore sentenced as follows.  On Count 1 of the Indictment you are sentenced to 12 months' imprisonment, on Count 2; 6 months' imprisonment, consecutive, on Count 3; 1 month's imprisonment, concurrent, and for the breach of the Community Service and Probation Orders, those sentences are cancelled and you are sentenced instead on that offence of assault in April to 3 months' imprisonment, which is to run consecutively to Counts 1 and 2, making a total of 21 months' imprisonment. 

8.        Now you are, theoretically, liable for deportation.  No suggestion is made by the Crown that there should be a recommendation for deportation, the Court agrees with that and we are not going to make any such recommendation but you have to realise that coming to a different country, which is what you have done, you have got to behave in accordance with our laws and if you were to commit a similar sort of offence in the future, then this matter is bound to be revisited so it is important that you tackle your behaviour. 

Authorities

Harrison v AG [2004] JLR 111.

Camacho v AG [2007] JLR 462.

AG v Thomas [2012] JRC 123.

AG v Jarman [2014] JRC 061.

AG v Holzmeier [2014] JRC 120A.