Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2015]JRC153

Royal Court

(Samedi)

6 July 2015

The Attorney General

-v-

Mauricio Jose De Jesus Silva

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

Age:  30.

Plea: Guilty.

Details of Offence:

Shortly after 02:30 on the morning of 8^th March, 2015, police officers on routine patrol in a marked police car noticed a group of three men arguing on the corner with Cattle Street and Beresford Street. 

The officers stopped in front of the group and saw the defendant punch the victim twice to the head, causing him to fall to the ground, where he kicked him to the back of the head.  The defendant was arrested and officers noted that the he was unable to hold himself up properly, had slurred speech and smelled of intoxicating liquor. 

The victim refused to give details of what had happened and declined to make a complaint.  He had no visible injuries. 

CCTV footage showed that in the ten minutes leading up to the assault there were several exchanges between the defendant and others gathered outside the Nikita nightclub.  During the course of these exchanges the defendant removed his jumper, leaving it on the other side of the street, and at one point removed his t-shirt and stood in the middle of the street making gestures which indicated he was inviting someone to fight with him. 

Just prior to the assault he walked out of shot into Beresford Street as the Police car pulled up.  He then comes back around the corner and delivered the punches which put the victim on the ground. 

In interview he told the officers that he had gone out at about midnight having consumed one or two vodkas at home.  He agreed that he was drunk and said that he didn't drink every day.  When asked whether the attack was unprovoked, he said that the victim must have said or done something, but he could not remember what that was.  He said that the felt bad when he saw the footage. 

Aggravating Features

The defendant has been caught fighting on the streets of St Helier before, and has a previous conviction in Madeira for possessing an offensive weapon.  The importation of 21 kgs of cannabis, even if your involvement is that of a mule is a serious matter. 

The defendant was highly intoxicated at the time of the offence. 

Details of Mitigation:

The defendant has entered a guilty plea, although considered all but inevitable, and was cooperative with police. 

He was supported by his employer who confirms that should he receive a non-custodial sentence then his job would remain available.

Previous Convictions:

He had been imprisoned in Madeira for a total of 2½ years for offences of larceny, possession of an offensive weapon and importation of 21 kg of cannabis. 

He also has a caution from the Parish Hall for causing a breach of the peace by fighting in 2011. 

Conclusions:

Exclusion Order sought excluding the defendant from 1^st, 4^th, 5^th and 7^th category licensed premises excluding the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the Ferry terminal at Elizabeth Harbour, the Opera House and Tamarind Restaurant (his place of employment) for a period of 2 years from date of sentencing.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

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

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE commissioner:

1.        You assaulted the victim in this case at 2:30 in the morning in St Helier by punching him twice to the head, causing him to fall to the ground, and you then kicked him once to the head, causing his head to come forward as we have heard.  Although you say he must have provoked you, there is no evidence to support that and you cannot recall.  It is true to say the victim has made no complaint; he left the scene and was not interviewed.  There is therefore no evidence of any injuries; nevertheless the incident was witnessed by the police and captured on CCTV. 

2.        Advocate Fogarty has urged us to consider not sending you to prison.  She has pointed out that you pleaded guilty at an early stage, which is to your credit; she has explained how your previous conviction in Madeira was a long time ago when you were very young; she has pointed also to your very good work record in Jersey, and that is supported by the many references we have received from your employers and by the fact that they have taken the trouble to come to Court to support you.  So it is clear that you are well regarded. 

3.        That makes it all the more sad that you have put all of that at risk by this unprovoked assault because the Court's policy is very clear.  Those who commit violent assaults on the streets of St Helier will be sent to prison unless there are exceptional circumstances.  We have listened very carefully to everything your advocate has said and to what your employers and friends have said in their references but we cannot find that there are exceptional circumstances in this case.  Furthermore, for an assault which involves kicking to the head, which can so easily cause life-threatening injuries, we think that the Crown's conclusions are correct. 

4.        As to deportation, we are quite satisfied that the first limb of the test is met and because of this assault, your continued presence in the Island would be detrimental to the public good.  We have considered against that your right under Article 8 of the Convention to your family life.  You were brought up in Madeira; you have spent three periods in Jersey, a few months in 1999, 2 years from 2009 to 2011 and then the period since January 2015 to now.  But your parents are in Madeira and your daughter is also in Madeira.  Your wife lives in Brazil and you have no family in Jersey.  In all the circumstances we see no reason not to recommend deportation. 

5.        The sentence of the Court is of 18 months' imprisonment.  We also make a recommendation for deportation at the end of your sentence. 

Authorities

Harrison-v-AG [2004] JLR 111.

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

AG-v-Anderson [2013] JRC 230.

AG-v-Huet [2014] JRC 130A.

AG-v-Mildren [2014] JRC 141.

Licensed Premises (Exclusion of Certain Persons)(Jersey) Law 1998.

AG v Passman and Passman [2007] JRC 230.

Camacho v AG [2007] JLR 462.