Jersey Unreported Judgments

Superior Number Appeal - Grave and criminal assault - reasons for dismissing the appeal

[2020]JRC216

Royal Court

(Samedi)

16 October 2020

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Crill, Blampied and Dulake

Alexandre Paulo Ribeiro Coelho

-v-

The Attorney General

Advocate M. P. Boothman for the Appellant.

J. C. Gollop Esq., Crown Advocate.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 10^th September, 2020, we gave the Appellant leave to appeal the sentence imposed upon him by the Inferior Number of the Royal Court and, having heard counsel for the Appellant and Respondent respectively, dismissed that appeal.  This judgment gives the reasons for our decision. 

The sentence imposed by the Inferior Number

2.        The Appellant was convicted on a guilty plea on a count of grave and criminal assault committed against his partner of three months at her home on 20^th October 2019. 

3.        The Appellant was sentenced to two years' imprisonment, made subject to a restraining order pursuant to Article 5(2) of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 for a period of five years and his deportation was recommended (AG v Coelho [2020] JRC 140).  No appeal is made against the length or terms of the restraining order.  The sentence of imprisonment and deportation order were both subject to appeal. 

The Appellant's grounds for appeal

4.        The Appellant's arguments on appeal can be reduced to three submissions: 

(i)        That the Appellant was sentenced on the wrong basis;

(ii)       That the sentence imposed was manifestly excessive and that the Court should have given weight to previous similar decisions of the Inferior Number; and

(iii)      That the decision to deport the Appellant was wrong.   

5.        It is convenient to examine these points in turn. 

(i) Was the Appellant sentenced on the wrong basis?

6.        One of the principal aspects of the offence was the Appellant's grabbing of a black handled kitchen knife from the kitchen block next to the sink, him pointing to the Complainant's face whilst shouting and screaming at her.  The Appellant accepted that this was frightening and threatening for the Complainant but pleaded guilty on the basis that the Complainant came to believe that the Appellant was going to give the knife to her.  Although he never handed the knife to the Complainant, the defence say that at no point did he intend to stab the Complainant and the fact that both parties believe that he was going to hand the knife to her reinforces this mitigating feature.  It is said the Court overlooked this matter.  In fact, on analysis, there is nothing inconsistent with the basis of plea to be found in the Court's reasoned judgment and, in argument, counsel for the Appellant accepted that he could not say that the Court incorrectly recorded the basis upon which the Appellant was being sentenced.  The most that can be said is that the Court did not set out in full the basis of plea.  However, it was not obliged to do so.  The Court gave a brief and balanced summary of the evidence in the case, which omitted to record various aggravating features of the Appellant's conduct.  We make no criticism when we make this observation.  In the view of the members of this Court, the sentencing court is not obliged to repeat or rehearse the prosecution's summary of facts.  The advantage of providing a brief summary of the facts in the Court's judgment is for the public and the defendant to understand the key features of the offence for which a defendant is being sentenced.  However, such a summary may be very brief indeed, particularly bearing in mind that the Crown's summary of facts, which has been provided to the defence in advance and is frequently reported in detail to the public by the media, contains a detailed statement of the factual basis upon which the Defendant falls to be sentenced. 

7.        It is useful to now set out the prosecution's case, the relevant mitigation and thereafter examine the Court's sentencing remarks in order to illustrate these points and also to provide the background to the second ground of appeal, which we consider next.

8.        The transcript of the Crown's opening to the Inferior Number contained the following passages, which commenced with the events of the morning of 19^th October 2019:   

"The Complainant told the Defendant that their relationship was over, and she wanted to be friends; she stated that "he did not take it well".  He became angry and shouted insults calling her "bitch" "prostitute".  He left the flat.  During the afternoon of the 19^th October she received text messages from him saying he'd been drinking; the messages became progressively more aggressive.  She took her son to stay overnight at her sister's at a separate address and then went to her place of work.

During that evening, the Defendant sent messages to the Complainant saying that he was in her flat.  She asked him what he was doing there and said that she had not given him permission to be there.  The Complainant believed that the Defendant had been drinking.

On the morning of Sunday 20^th October, the Complainant left work, collected her son and headed home to the flat.  "When we came home I was expecting [the Defendant] to be in the flat".  She was scared about returning home because she knew the Defendant had been drinking the previous evening.  The Defendant was lying on the sofa bed in the lounge; an iPad originally belonging to the Defendant was on the sofa.  The Complainant asked the Defendant to leave immediately and took the iPad into her bedroom, stating that she would return it once she had removed personal photos.  The Defendant remonstrated with the Complainant about his belongings in the flat and the iPad; he became angry and started shouting and abusing her calling her "Bitch" and "Pig".

The Defendant followed the Complainant into the bedroom wrestled the iPad from her grip.  The Complainant tried to retrieve it and the Defendant pushed her away with such force that she fell over onto the bed onto the floor, hitting the left back side of her head.  The son was in the bedroom doorway and having witnessed the above, he tried to call 999 on his mother's mobile phone.  The Defendant tried to leave the flat with the Complainant's phone, but she managed to obstruct him and retrieve the phone from him.

The Defendant went into the kitchen; the Complainant followed.  The Defendant grabbed a black handled kitchen knife, with a 6-inch blade, which was in the knife block on the kitchen surface.  There's a photograph of the knife at divider 7 Sir, behind the two injury photographs.

As the Complainant entered the kitchen the Defendant pointed the knife to the face of the Complainant and threatened her.  The Complainant stated, "He had the knife close to my face", in her estimation "It was about a foot away".  The Defendant was screaming at the Complainant and continued with his verbal abuse of her.  As he pointed the knife towards the Complainant's face the Defendant said that he knew how to use karate, and he continued to call her names such as "Bitch" and "Pig".  The Complainant was fearful for her safety and for that of her son.

The son stood in the hallway and witnessed the shouting and his mother being threatened with a knife.  He was scared.  The Complainant told Edson - told the son to go to a friend's flat on the top floor and ask them to call the Police.  The Defendant snatched the iPad from the Complainant's arms; there was a struggle for the iPad which fell to the floor.  The Complainant fell; the Defendant lashed out at her, hitting her on the nose, causing it to bleed and feel tender.  The Defendant ran off.

The Complainant went back into the flat from the corridor.  Her son was screaming that she was bleeding.  The son had rung his auntie and asked for help.  The Complainant tried to telephone the Emergency Services however her mobile phone was out of credit.  Fortunately Sir, Police Officers had traced the address of the 999 call and attended.  The son walked out of the living room, approached the police officer and said words to the effect of: "Alex had a knife to my Mummy's face" and "They were fighting".  A Police Officer took two photographs of the Complainant, entitled "nose bleed" and "hand injury" respectively.  Those Sir are at divider 7.  The Complainant stated that the whole incident lasted about thirty minutes; the episode with the knife lasting about two or three minutes."

9.        The Crown went on to draw the Court's specific attention to the basis of plea and the cross-reference to the witness statements of the Complainant within the basis of plea which were both included in the Crown's bundle so that factual basis was understood by the Court in its proper context.  The defence in mitigation explored and explained the basis of plea to the Court in some detail as follows: 

"Mr Coelho submitted a basis of plea and that basis of plea has been accepted and therefore Sir he is to sentenced in accordance with it and if I may Sir kindly ask you to turn to divider 5 of my learned friend's bundle.  Sir, paragraph 5 of the basis of plea it says as follows "Regarding the knife incident, the Defendant accepts the Complainant's version of events as set out in paragraph 7 of Statement 1 and paragraph 10 of Statement 2 save that he does not believe that he was as close as a foot away from the Complainants face. He at no point intended to stab the Complainant with the knife however he accepts that by holding a knife (by the handle) towards the Complainant during a domestic incident she was likely to feel fearful and threatened by his actions. He accepts that he was trying to get the Complainant to take the knife as she states in paragraph 10 of Statement 2."  So paragraph 10 of statement 2 is the penultimate page of that divider and it's on the back of that page.  And this is the victim's account of what took place.  "After I took my phone Alex walked into the kitchen which is next to the front door. He came straight into the kitchen and straight to the knifes. He grabbed one of the kitchen knives from the block. It was a 6 inch kitchen knife from the block. As I came in he pointed the knife towards me as if he wanted me to take it. I told him to leave again. Alex was saying stuff about the knife and that he knew karate. He was calling me a bitch and a pig. He had the knife close to my face, it was about a foot away. He was holding the handle of the knife. He was in the kitchen with his back against the counter and I was in front of him. I think he was trying to get me to take the knife so that he could use that against me. Edson was in the hallway as he was scared, he was probably about2 meters away from us."  Sir, aside the distance that the knife was being held towards the face of the Complainant that you will have seen is agreed.  The fact is Sir that the Crown.., my learned friend stated in his Conclusion, it's referred to at paragraph 5 of those Conclusions, behind divider 1 that it is entirely - it states Sir half way down paragraph 5 "lt is entirely fortuitous that the Complainant was not seriously hurt."  The fact is Sir in his basis of plea and even in the victim's own account he was trying to pass the knife to her and he is to be sentenced in accordance with his basis of pleas which states at no point he intended to stab her. 

Sir, he accepts that holding a knife during the course of a domestic incident is entirely unacceptable and he accepts that through his guilty plea and it accepts that that clearly makes this offence a grave and criminal assault."

10.      The following paragraphs of the judgment of the Inferior Number summarised the key facts as follows: 

"1. On 20^th October, 2019, the defendant, who is 46 years old, committed a grave and criminal assault on his former partner at her home address.  During this assault the defendant wrestled with her to gain control of an iPad, threatened her with a kitchen knife and lashed out at her, causing her nose to bleed.  The grave and criminal assault was witnessed by the complainant's then six-year-old son.  It is quite clear that the little boy was terrified by what he had to witness and was screaming when he saw his mother bleeding.

2. This was a particularly unpleasant incident, and the Court views the brandishing of the knife in such a context very seriously.  It was, as the Crown has said, a terrifying ordeal for the complainant. 

...

7. ...So applying the Harrison v AG tests to this particular case the defendant deliberately picked up the knife and he continued verbally to abuse the complainant.  We accept, as per the basis of plea, that it was a reckless act, but he did point the knife at the complainant's face and this caused her to be in fear.  No blows were struck with the knife.  The defendant apparently had lost his temper with his former partner, but he deliberately went into the kitchen and picked up the knife rather than leaving the flat when he could so easily have done so.  The physical injuries sustained were mercifully not serious but they were significant.  The defendant used the complainant's kitchen knife with a 6 inch blade to threaten the complainant.  It was carried, he took hold of the knife on impulse, but he was not being physically threatened by the complainant nor was he being detained in the flat.  And, as we have said, he had the opportunity to put it down before she entered the kitchen.  Only he was involved.  The complainant had offered no provocation, she did not physically threaten the defendant, she had been injured by the defendant and she had suffered verbal abuse.  At all times the defendant was the aggressor. Finally in the Harrison v AG factors the defendant has a criminal record, as we have said, grave and criminal assault, and he has been abusive to females with whom he enters into a relationship."   

11.      Accordingly, the Court was unable to discern any merit in the first ground of appeal. 

(ii) Was the sentence manifestly excessive?

12.      The Appellant's principal submission was that there was a body of case law involving similar offences to which the Court should have paid closer attention.  It was said that the appropriate sentence, on the basis of these cases, was between 12 and 18 months.  The Inferior Number was criticised for not finding it a "useful exercise to consider these cases".  It also said that the Court should have taken into account such previous cases because they were "strikingly similar" to this case.  Reference was made to the need for there to be consistency in sentencing which this Court accepts is an important objective. 

13.      What connected those cases was that they each featured the use of a knife in a domestic context where little or no physical injury was caused to the complainant.  These cases were AG -v- Horn [2010] JRC 104, AG -v- De Freitas [2013] JRC 065, AG -v- R [2013] JRC 162, AG -v- Thomson [2015] JRC 251 and AG -v- Moiro [2020] JRC 048.   

14.      This Court is not going to set out the facts of any of these authorities as every case is different.  Each case involved an offender of different age with different antecedents carrying out different acts constituting the offence of grave and criminal assault, with different aggravating and mitigating features.  As the Court of Appeal said in Wood -v- AG [1994] JLR N-15, and as cited, in Harrison -v- AG [2004] JLR 111 at paragraph 62:

"It is necessary and important, however, to remember that reference to earlier cases is made in order to see the principles and guidelines which have been laid down there and to follow them. The purpose of referring to earlier cases is not to analyze the exact sentence which was then passed and the precise reasons why the court arrived at it. This would be an impossible undertaking since sentencing is a discretionary exercise in every case and the reports do not include every feature which influenced the court in exercising its discretion on earlier occasions."

15.      We entirely agree with the approach of the Inferior Number, which was to extract the relevant principles to be drawn from those cases, without considering the sentences imposed in any of them.  This is what the Inferior Number said: 

"4. This Court always takes a serious view of assaults with a knife.  In AG v Lawlor [2009] JRC 150 at paragraph 6 the Court had this to say:

"The gravity of injury when a knife is used is so often a matter of chance and there is always a risk of really serious injury if not worse.  The Court is determined to send out a message that those who resort to attacks with a knife will face severe sentences."

5. In addition this Court has repeatedly said that a person is entitled to feel safe in his or her home.  The Court said in AG v Horn [2010] JRC 104 at paragraph 5:

"First of all the message is that knife crime will be dealt with severely even though no injury is caused, and secondly, domestic violence is similarly a crime which will be treated severely.  A person's home, however big or small it is, is their refuge and if the person with whom the home is shared uses violence the victim suffers a double violation; a violation by a person that they have trusted and a violation in their own home.  People who commit these offences can expect the Court to focus on the victims and not on their hardships and on their difficulties."

6. Further in AG v Moiro [2020] JRC 048 it was said, "There is never an excuse to brandish a knife for any purpose in a domestic context".

7. Advocate Boothman has drawn our attention to that case and also to AG v Horn and called them authorities.  We disagree.  We think that these are cases which have some similarity with the present one in as much as they involved offences of violence.  But, the whole point of assault is it is an offence which is protean, and we feel it unhelpful to draw attention to cases that might have involved a lower sentence with a view to trying to reduce the sentence in any particular case.  We can only judge a case on all its merits and all its facts, most of which will be unique to that particular case.  And indeed, it is for that reason that the Court in Harrison v AG [2004] JLR 111 sought to categorise the elements of an assault so that the Court could consider it in the round, so to speak. ..."

16.      It is useful to look at previous cases in this area (sentencing for grave and criminal assault) in order to ascertain guiding principles to which the sentencing court should have regard, but in terms of the sentence imposed every case is different.  There are no leading or guideline cases.  Sentencing in these cases is a discretionary exercise.  Different principles apply in the context of cases involving the importation of and possession with intent to supply of certain controlled drugs and there is a body of case law, binding on the Inferior Number, which has developed necessitating the calculation of a starting point, usually by reference to weight or some other objective feature of the drug involved.  The court will then determine the sentence to be imposed by reference to mitigating factors personal to the defendant.  Such an approach is often also appropriate in the case of sex offences where, again, there is a developing body of guideline cases.  But, as the Court of Appeal observed in Harrison -v- AG at paragraph 119, "the multiplicity of circumstances which result in charges of grave and criminal assault afford a wide band of sentencing options for the Royal Court".  The court in that case went on at paragraph 120 to set out a list of matters which the Crown, when drafting the statement of facts, and the Jurats when addressing themselves at sentence, should consider.  These are now known as the "Harrison factors".  They are a common feature of the Crown's summary of facts. 

17.      However, we do not accept the suggestion made to us that it is necessary for the Inferior Number to specifically address the Harrison factors when imposing sentence.  The Court did carry out such a task in this case but was not obliged to do so. 

18.      Counsel for the Appellant also criticised the Royal Court for not setting a starting point for this offence.  Certainly there are often advantages in setting a starting point, as referred to by the Court of Appeal in Harrison.  However, bearing in mind the variety of circumstances in which the offence of grave and criminal assault can be committed, we do not think that it is necessary for the Crown generally to propose starting points for this type of offence.  Indeed such an approach might simply lead counsel to start comparing starting points selected by the Crown in relation to cases which are bound to be different from the case before the Court.  It is always important for it to be clear whether a discount has been given for a guilty plea, and the extent to any discount.  But, as observed by the Court of Appeal in Harrison at paragraph 57:

"If the Court has performed its functions properly, it should be apparent from the judgment whether any discount given for plea was full, partial, or non-existent." 

19.      This Court also wishes to make two general points for the guidance of the Inferior Number in other cases of domestic abuse. 

20.      First, in addition to the general undesirability of comparing the sentence imposed in other cases, it is noteworthy that many of the cases that were urged upon us as being relevant comparators were cases where the offence was committed some years ago.  The passage of time has led to a hardening of the approach of the courts to cases of domestic violence. 

21.      The second and connected point is that there is now a greater awareness in the community as a whole of the damaging effects, which may give rise to long term or permanent consequences, of domestic abuse/violence to the victims and the children of victims, a general abhorrence of such conduct and a need to deter offenders and others from similar offending.  This has led to penalties for domestic violence increasing. 

22.      Finally, although the Harrison factors are useful, are of general application and of particular assistance in cases such as street violence, they are not tailored to meet the context of domestic abuse.  Here, the essential aggravating features of the offence were the use of the knife, the fact that the Complainant was assaulted in her own home (including in her own bedroom) and the assault was witnessed by her terrified six year old son, who tried to call 999 on his mother's mobile phone.  It needs to be recognised that these sort of factors are at least as important as the "Harrison factors" in cases of domestic abuse and need to be given weight when assessing the gravity of the offence.   

23.      In K -v- AG [2016] JCA 219 the Court of Appeal considered the utility of the guidance provided in England and Wales by the Sentencing Guidelines Council.  As to the analysis of aggravating and mitigating factors the Court of Appeal said that the Royal Court's conclusions were that: 

"(ii) The analysis of aggravating and mitigating factors which is frequently set out in the Guidelines often, perhaps even usually, provides a convincing rationale for the assessment of the seriousness of the offending which can conveniently be adopted in Jersey."

24.      The Court of Appeal went on to say at paragraph 33: 

"... as has been said on other occasions the Guidelines helpfully set out factors which are properly regarded as distinguishing some offences from others in terms of seriousness."

25.     We note that the Sentencing Council has produced guidance in respect of domestic abuse dated 2018 which provides, in respect of assessing seriousness: 

"The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim's safety, and in the worst cases a threat to their life or the lives of others around them.

Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues, and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them.

Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case."

26.      The Sentencing Council also lists aggravating mitigating factors as follows:

"Aggravating and mitigating factors

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context, and should be considered alongside offence specific factors.

Aggravating factors

·         Abuse of trust and abuse of power

·         Victim is particularly vulnerable (all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)

·         Steps taken to prevent the victim reporting an incident

·         Steps taken to prevent the victim obtaining assistance

·         Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim's safety

·         Impact on children (children can be adversely impacted by both direct and indirect exposure to domestic abuse)

·         Using contact arrangements with a child to instigate an offence

·         A proven history of violence or threats by the offender in a domestic context

·         A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders)

Mitigating factors

·         Positive good character - as a general principle of sentencing, a court will take account of an offender's positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender's good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour

·         Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change."

27.      It is not suggested that it is necessary or appropriate for the Crown, as is the practice with the Harrison factors, to identify the presence or absence of each factor but the Crown, and the Court when passing sentence should be alive to the specific aggravating and mitigating factors relevant to domestic abuse cases which are adopted by this Court and listed above.     

28.      It can immediately be seen that several of the aggravating factors were present in this case.  One such aggravating feature, namely a proven history of violence in the domestic context, was a significant factor in this case.  On 27^th June 2017, the Appellant committed another grave and criminal assault against another woman in her own home.  The Crown said this about that offence: 

"The facts of the 2017 grave and criminal assault bear similarity to those for which the Defendant is to be sentenced today.  The Defendant had been in a relationship with the Complainant for some months and the couple were living together in a flat.  The Defendant was drunk when the Complainant returned home from an evening with female friends.  In the early hours of the morning the Complainant was awakened by the Defendant shouting abuse at her calling her "bitch" and "prostitute".  There then followed an assault involving the Complainant being pulled around the flat by her hair, kicked and slapped.  The Defendant was sentenced in the Magistrate's Court to a 12-month Probation Order, a Community Service Order for 160 hours and a 3-year Restraining Order.  Within 6 months of sentencing the Defendant had breached the Community Service Order by non-compliance, he had breached the Restraining Order and the Probation Order."

29.      For those breaches the Appellant was sentenced to five months' imprisonment. 

30.      In conclusion, the Inferior Number was entitled to find that this was an offence which warranted the imposition of a sentence of two years' imprisonment and a restraining order. 

Ought the Appellant to have been deported?

31.      A complaint is made about the application of the second limb in Camacho -v- AG [2007] JLR 462. 

32.      As is well understood that when considering making a recommendation for deportation the Inferior Number needs to consider: 

(i)        Whether the defendant's continued presence in Jersey would be detrimental to the community?  

(ii)       If so, would an order for deportation be disproportionate having regard to the rights given to the defendant and his family under the European Convention on Human Rights particularly pursuant to Article 8? 

33.      It is helpful to set out the terms of Article 8, which provide: 

"Right to Respect for Private and Family Life

Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

34.      In Camacho the Court of Appeal said: 

"In our view, it is the family rights of the offender as well as those of his family which must be considered even if, ex hypothesi, less weight is given in the balancing exercise to those of the former, i.e. the offender. As to whether this is justification for severing a family, the art. 8(2) factors must be considered, always informed by the doctrine of proportionality."

35.      It is not suggested that the Inferior Number was wrong in deciding the first question in the affirmative.  However, its assessment of the second limb of the test is challenged.  This is what the Royal Court said: 

"Turning to the second limb of the test in Camacho v AG [2007] JLR 462 the defendant first came to Jersey in August 2004, and to his credit he first offended in 2016; but his conduct over the last four years, particularly in respect to incidents of domestic abuse, has been reprehensible to a degree.  We have already noted that he has been subject to various orders and he has not obeyed those; he has breached or failed to comply with their terms.  The Crown has said, and the Court has often said, that living in Jersey is a privilege, and this defendant has abused that privilege.  Looking at the Human Rights aspects of the case we note that the defendant has a brother in this jurisdiction and his relationship is described as being close and supportive, but he has no dependants within the island, indeed his 20-year-old son is living in mainland Portugal; and we note further from paragraph 1 of the Social Enquiry Report that the defendant has a large and stable family there.  He is currently not in a relationship.  No innocent person will be detrimentally affected by the deportation of this man, so we have considered whether the defendant's deportation would be disproportionate having regard to his Article 8 rights pursuant to the European Convention.  We conclude that it would not be disproportionate.  Indeed his deportation would be conducive to the public good and in the interests of the wider community, so the Court is therefore recommending to the Minister for Home Affairs that the defendant be deported when he has served his sentence of imprisonment." 

36.      It is said that the Royal Court fell into error when saying that the Appellant had a "large and stable family" in Portugal.  The Inferior Number was presumably relying on paragraph 1 of the social enquiry report which said that the Appellant was in "regular contact with his siblings" - of whom there are seven living in Portugal.  On appeal it was said that he was estranged from all of those persons and the only sibling with whom he was in touch was his brother who lives in Jersey, and that his father, who lives in Portugal, is now 87 and in poor health and, since the hearing before the Royal Court, has moved into a nursing home.  The Appellant's 20 year old son still lives in Portugal, although he has considered moving to Jersey.  The mother of the Appellant's son continues to reside in Portugal, although it is said that the Appellant finds it easier to support his son's mother by earnings in Jersey when he is in employment.  A significant factor is undoubtedly the fact that the Appellant has lived in Jersey for most of the last 16 years, leaving Portugal when he was 30 years of age. 

37.      However, the Inferior Number was entitled to conclude, as is plainly the case, that the Appellant has no dependents in Jersey and has spent most of his life to date living in Portugal, notwithstanding the amount of time he has spent in Jersey.  Accordingly we agree that the Inferior Number was entitled to find in its discretion that the second limb of the test in Camacho was satisfied and that it directed itself on the appropriate principles correctly.  Even if the Royal Court erroneously recited that the Appellant has a "large and stable family" in Portugal, that error was not attributable to the Court, as there appears to have been no attempt to correct the contents of the social enquiry report.  If it had been alleged that this error in fact vitiated the decision of the Royal Court, then we would, on appeal, have reached the same decision as the Royal Court did, with full knowledge of the relevant facts.  Accordingly this appeal is dismissed. 

Authorities

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

AG v Coelho [2020] JRC 140. 

AG -v- Horn [2010] JRC 104. 

AG -v- De Freitas [2013] JRC 065. 

AG -v- R [2013] JRC 162. 

AG -v- Thomson [2015] JRC 251. 

AG -v- Moiro [2020] JRC 048. 

Wood -v- AG [1994] JLR Note15a. 

Harrison -v- AG [2004] JLR 111. 

K -v- AG [2016] JCA 219. 

Camacho -v- AG [2007] JLR 462.