Jersey Unreported Judgments

Hearing (Criminal) - appeal against Magistrate's recommendation for deportation at end of sentence.

[2016]JRC163

Royal Court

(Samedi)

13 September 2016

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Crill and Ramsden

Miguel Perestrelo dos Santos

-v-

HM Attorney General

J. C. Gollop, Esq., Crown Advocate for the Attorney General.

The Appellant appeared on his own behalf.

Advocate M. P. Boothman appeared as Amicus curiae.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 16^th June, 2016, Miguel Perestrelo dos Santos ("the appellant") was convicted by the Magistrate's Court for breach of a Restraining Order and breach of a Community Service Order.  He was sentenced to 6 months' imprisonment for the former, and 6 weeks' imprisonment for the latter and in addition the Magistrate made a recommendation that he be deported at the end of his sentence.  It is against that recommendation for deportation that the appellant appeals to this Court. 

2.        The appellant was unrepresented before us but in order to ensure that all matters that could properly be raised were before the Court, the Court directed that an amicus curiae should be appointed.  Pursuant to that direction, Advocate Boothman has appeared before us as amicus curiae.  In addition to assisting the appellant with his own contentions, Advocate Boothman has filed a skeleton argument and has presented argument to us today.  We wish to express our gratitude to him for his efforts and the assistance he has given the Court in this matter. 

3.        This appeal is brought pursuant to Article 17 of the Magistrate's Court (Jersey) Law 1949 on the basis that the sentence of the Magistrate in recommending deportation was manifestly excessive and should be overturned. 

4.        A number of cases were put before us on the tests that this Court should apply on appeal from the Magistrate's Court but, for convenience, we take the test as articulated by the Court in Loureiro v AG [2015] JRC 154 in which at paragraph 9 the Court said:

"It is well established that the Court will not interfere with the sentence imposed by the Magistrate unless it was one which is not justified by law, or the sentence was passed on the wrong factual basis, or some matter has been improperly taken into account of left out of account, or there was some fresh matter which ought to have been taken into account or whether the sentence was wrong in principle and manifestly excessive.  In particular, it is not the function of the Royal Court to tinker with sentences which are within the range open to the sentencing court simply because it might itself have fixed a lower term of imprisonment."

5.        That test has been articulated in slightly different ways in other cases but in our view nothing of moment in this appeal turns on the different ways of expressing the test. 

6.        The test that a court must consider on making a recommendation for deportation is set out in the case of Camacho v AG [2007] JLR 462.  It is a two stage test in which, firstly, the sentencing court must ask itself whether the offender's continued presence in Jersey would be detrimental to the public good and, if satisfied that the answer to the first question is in the affirmative, the sentencing court must then consider whether deportation would be disproportionate having regard to the offender's rights and those of others under the European Convention of Human Rights 2000. 

7.        It seems to us that the second part of the test means that the Court will have regard to the rights not only of the defendant and his family but also of any victim.  The rights that will most often fall to be considered are those enshrined in Article 8 of the European Convention of Human Rights, namely the rights to a family life. 

8.        Given that this appeal will involve a consideration of the reasons advanced by the learned Magistrate for the recommendation for deportation it is at this stage helpful to note the case of De Carvalho v AG [2007] JLR Note 33, where in the note of that case it is said:-

"It is important that the Court should give reasons for making a recommendation that an offender be deported, but an absence of reasons is not fatal to a recommendation and an appeal court may supply its own reasons if it considers that a recommendation is appropriate...."

The circumstances of the offending

9.        The appellant in this case had been continuously harassing a victim since 2014.  The victim had not previously been in any kind of the relationship with the appellant and they were in effect strangers.  As a result of his behaviour he was served with a harassment notice on 15^th January, 2015, but it appears that he ignored that notice and further complaints of harassment followed from the victim.  He was charged with an offence of pursuing a course of conduct amounting to harassment contrary to Article 3 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 and was subject to a 10 year restraining order.  He subsequently breached that order on three occasions which itself placed him in breach of a probation order imposed by the Magistrate's Court. 

10.      The Court has had the benefit of reading the statements of the victim and it is clear that the appellant's conduct has had not only a profound effect on her, her sense of wellbeing and safety (on one occasion the appellant attended at the victim's boyfriend's mother's house where, previously, the victim had felt safe from him) but has also had an effect on the victim's boyfriend. 

11.      The social enquiry report before the Magistrate's Court on 16^th June, 2016, records that the appellant was assessed at being at a high risk of general re-conviction.  This behaviour was characterised as having "elements of obsessive thinking with consequent compulsive behaviour.  This is compounded by him failing to accept responsibility for his actions.  This has the effect of reducing his victim empathy and it is apparent that he does not appear to fully understand the vulnerability the victim must feel.  In my opinion, should the Defendant re-offend in the future, the most likely scenario would be in the realm of another harassment/sexual related offence".

12.      Furthermore the social enquiry report assesses the appellant's cooperation with probation and the community service orders as "best described as disguised compliance" although it noted that his attendance had been "exemplary".  Little progress appears to have been made in addressing the underlying factors which contributed to his offending behaviour. 

13.      Also before the Magistrate were letters from the appellant's mother and sister both of whom live in Jersey and who offered their support in his desire to remain in Jersey pointing out that if the appellant returned to Madeira he would in fact be alone as neither his mother or sister in Jersey would return with him.  Furthermore whereas the appellant has a sister in Madeira, it appears that they are estranged and in any event it would not be possible for him to live with her. 

14.      Also before the Magistrate was a neuro-psychological report prepared by Dr Catherine Boucher, a consultant clinical psychologist.  The report points out that the appellant has difficulties, particularly in the area of verbal comprehension of perceptual reasoning and had significant difficulties with depression.  The report notes, however, that "though Mr dos Santos did present as having difficulties with his mood in our clinical interview, it did not appear that during cognitive testing his mood impacted on his ability to engage and focus on the tests".  Later in the report, the author says "the clinical interview with Mr dos Santos also highlighted several areas of functional difficulties, including within employment and relationships.  His forensic history is varied, and appears to include impulsive and obsessive behaviours, and he displayed minimum victim empathy or comprehension regarding his offence behaviours".

15.      Crown Advocate Gollop draws to our attention the judgment in the leading case of R v Nazari [1980] Criminal Appeal 87, a decision of the Court of Appeal of England and Wales, in which it was stated:-

"Where there is mental instability connected with or resulting in the commission of a serious criminal offence, it seems to us, again as a matter of guidelines that in itself is a good reason why a recommendation for deportation should be made."

16.      This approach was considered and approved by the Jersey Court of Appeal in Simao v AG [2005] JCA 122 at paragraph 53 in finding in that case that the appellant's mental health was not a factor in his favour. 

17.      It is argued before us that Nazari goes no further than dealing with questions of mental health where they are connected with or result in the commission of a criminal offence and not, as here, where the appellant also potentially has mental health issues, specifically depression, apparently unconnected with his offending.  This is something, we are urged, that should be taken into account. 

18.      Advocate Boothman also draws to our attention the fact that the appellant has not lived in Madeira for some 23 years and has been in Jersey, continually, for the past 10 years.  These matters were placed before the Magistrate by defence counsel at the time when the Magistrate was considering deportation. 

19.      The Magistrate also of course had details of the appellant's criminal record which include common assault in 2002, indecent exposure in 2008 as well as the breach of the orders of the Magistrate's Court referred to above. 

The Magistrate's decision

20.      Reviewing the transcript of the hearing before the Magistrate it is clear that she had in mind and sought to apply the test in the Camacho v AG mentioned above.  She correctly articulates the test and, as to the first part of it says:-

"... I conclude that Mr dos Santos' continued presence in the island is not conducive to the public good.  He has had a history of worrying behaviour, in a sexual context, starting with events in 2008.  He has been before this court for a number of offences starting in, with his appearance in March last .... the type of offending is serious, there is a wide range of behaviours which can amount to harassment.  There is no need for physical violence or physical threat but... emotional harm and psychological harm can be significant, it can severely affect a victim....".

21.      The Magistrate then makes reference to the effect on the victim's wellbeing and also makes reference to the fact that the victim and the appellant were strangers.  Lastly she refers to the risk of offending set out in the probation report and concludes with the remarks "I have no confidence that this woman, her boyfriend, or his family or her friends and family can lead peaceful and secure lives whilst he [the Appellant] remains in the Island".

22.      The Magistrate then goes on to consider the second stage of the Camacho test and says that the detrimental effect of the defendant's continued presence in the Island "must be balanced against the defendant's right to a private and family life and that of his family".  The Magistrate refers to the fact that the defendant has no dependents, makes reference to his "low IQ... in some areas" but does not characterise him as someone who needs the support of his mother or sister to live independently. 

23.      The Magistrate makes reference to the position of the appellant's mother and sister but makes the observation that whilst she is sympathetic to their position, they are not dependent upon the appellant. 

24.      Lastly, the Magistrate makes reference to the rights of the victim and her family and concludes with words "I see no realistic prospect that he would keep to those conditions in the future.  In my view the balance comes down very firmly on the side of protecting the victim and ... her Article 8 rights and those of her boyfriend and family, rather than allowing Mr dos Santos to remain in Jersey.  I therefore recommend his deportation at the end of his sentence."

25.      Advocate Boothman suggests that the Court might be concerned that the Magistrate did not appear to bear in mind the mental health or indeed the practical difficulties that he would face on his return to Madeira should the Lieutenant Governor agree with the Magistrate's recommendation.  We remind ourselves, as stated above, that the Magistrate did not need to articulate all of her reasons.  It is clear to us that she had all of the material before her and indeed she confirms that she has received and read the letters from the appellant's mother and sister in Jersey which themselves set out details of the difficulties that the appellant would face on his return to Madeira.  She clearly had read the neuro-psychological report and indeed made reference to the challenges that the appellant has.  To the extent that his psychological profile contributed to his offending behaviour is not, of course, a matter that the Magistrate should have taken into account as weighing against a recommendation for deportation. 

26.      It is not suggested to us by Advocate Boothman that the Magistrate was wrong in her application of the first part of the Camacho test.  We agree.  Whilst the offences of which the appellant was found guilty were not of a very high order of seriousness, they were nonetheless serious offences with potentially profound effects on the life and wellbeing of the victim.  They were offences which disclosed a course of conduct which in our view added to the seriousness within which they occurred.  We agree and find that the Magistrate correctly applied the first part of the Camacho test. 

27.      With regard to the second part of the test we remind ourselves that we are not a sentencing court and it is for us to assess not what this Court might have done had it been confronted by the same set of circumstances but rather whether there is any proper basis to set aside the Magistrate's decision on the grounds that it was unreasonable or manifestly excessive. 

28.      We are satisfied from all that we have seen that the Magistrate had before her all the relevant material and even though she did not make express reference to, for example, the appellant's depression, she did make reference to the challenges he faced and it is clear that she had read the neuro-psychological report.  It is equally clear that she was aware of what had been said about the difficulties he might face on return to Madeira but, notwithstanding those factors, she viewed the balancing act that she needed to undertake as clearly falling in favour of the rights of the victim and the victim's family. 

29.      In addition to hearing from the Crown and Advocate Boothman, we did of course hear directly from Mr dos Santos through an interpreter.  Mr dos Santos asked that he be given a further chance, expressed remorse and apologies to the victim.  Nothing he told us, however, amounted either to new information that was not available to the Magistrate nor lead us to alter the view that we have herein expressed.  

30.      Whilst acknowledging the difficulty that the appellant may face both with regard to his personal challenges and with regard to the challenges he may face in establishing himself in Madeira we nonetheless are clearly of the view that the Magistrate's decision was both proportionate and reasonable. 

31.      Accordingly we dismiss this appeal. 

Authorities

Magistrate's Court (Jersey) Law 1949.

Loureiro v AG [2015] JRC 154.

Camacho v AG [2007] JLR 462.

European Convention of Human Rights 2000.

Carvalho v AG [2007] JLR Note 33.

Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008.

R v Nazari [1980] Criminal Appeal 87.

Simao v AG [2005] JCA 122.