Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - drunk and disorderly and malicious damage. 

[2021]JRC168

Royal Court

(Samedi)

11 June 2021

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Olsen and Jurat Sparrow

The Attorney General

-v-

Ruben Wilson Moreira Da Silva

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the charges on the First and Second Indictments and a breach of a Community Service Order which was imposed on 26^th November 2020 imposed by the Magistrate's Court.  

First Indictment

2 counts of:

Grave and criminal assault (Count 1 and Count 2).

Second Indictment

1 count of:	Being disorderly on licensed premises contrary to Article 82 of the Licensing (Jersey) Law (Count 1).
1 count of:	Malicious damage (Count 2).

Age:  23.

Plea:  Guilty. 

Details of Offence:

First Indictment

On 1^st April 2020 the defendant was walking along Hasting's Road and encountered the victim with whom the defendant had history.  The defendant headbutted the victim.  The headbutt caused the defendant's nose to bleed (Count 1).  

 

On 4^th July 2020, in early hours of the morning the defendant who had been drinking alcohol, with his girlfriend, brother and friends were walking along Bath Street.  The victim had been out with friends drinking and together they were all walking up Bath Street.  The groups passed each other outside the Soleil pub.  A member of the defendant's group made a remark about a female in the victim's group.  A male from the victim's group approached the defendant.  Words were exchanged, and the defendant was recorded on CCTV to throw a punch at the male.  The victim stepped in and got punched by the defendant.  The victim then attempted to punch the defendant, but the victim missed.  The defendant punched the victim in the face and knocked him backwards onto the ground.  Whilst on the ground the defendant punched the victim twice in the face.  He then elbowed the victim five times to the face.  The defendant was pulled off the victim by his brother and the defendant then started attacking another male.  The police arrived and numerous arrests were made.  The victim sustained bruising and swelling under both eyes and to the upper lip. 

 

Second Indictment

On 17^th April 2021, whilst on Royal Court bail, the defendant went to the Wagon Wheel cafe with friends.  The defendant attempted to order more alcoholic drinks at closing but was informed no further alcohol would be served.  He then went into the cafe and became argumentative with staff. He was shouting and swearing at staff.  The defendant's friend also came into the cafe and behaved in a disorderly manner.  At one point the defendant had to be held back as he continued to shout and swear at the owner.  He eventually left and punched the glass pane of the door at least seven times, causing it to smash and badly injuring his hand.  The Police arrived and the defendant ran away. 

 

The defendant had also breached a Community Service Order by way of re offending in April 2021.  He had been sentenced to 90 hours' Community Service for causing serious injury by careless driving. 

Details of Mitigation (including domestic circumstances):

Guilty pleas, remorse, and personal mitigation detailed in psychological report. 

 

Previous Convictions:

None except for a written caution for common assault when he was a youth.  

Conclusions:

First Indictment Count 1:	5 months' imprisonment;
Count 2:	18 months' imprisonment, concurrent.
Second Indictment Count 1:	1 months' imprisonment, concurrent;
Count 2:	3 months' imprisonment, concurrent.

Order sought for the breach of the Community Service Order to be revoked and to impose the equivalent custodial penalty for the hours remaining (4 weeks' imprisonment).

Total: 18 months' and 4 weeks' imprisonment. 

Compensation Order sought pursuant to Criminal Justice (Compensation Orders) (Jersey) Law 1994 in the sum of £383.33. 

Exclusion Order sought pursuant to the Licensed Premises (Exclusion of Certain Persons) (Jersey) Law 1998 excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding, the Multiplex Cinema, Jersey Airport, The Ferry Terminal at Elizabeth Harbour for a period of 24 months from the date of sentence. 

No Deportation Order sought. 

Sentence and Observations of Court:

First Indictment Count 1:	5 months' imprisonment;
Count 2:	15 months' imprisonment, concurrent.
Second Indictment Count 1:	1 months' imprisonment, concurrent;
Count 2:	2 months' imprisonment, concurrent.

Total: 15 months' imprisonment.

Community Service Order revoked and no separate penalty.

Compensation Order made in the sum of £383.33, to be paid within six months of the defendant's release from prison, one month imprisonment in default. 

Exclusion Order ordered pursuant to the Licensed Premises (Exclusion of Certain Persons) (Jersey) Law 1998 excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licensed premises excluding, the Multiplex Cinema, Jersey Airport, The Ferry Terminal at Elizabeth Harbour for a period of 24 months from the date of sentence. 

No recommendation for deportation ordered.

S. C. Brown, Crown Advocate.

Advocate S. C. Thomas for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are to be sentenced today in respect of two counts of grave and criminal assault, respectively committed in April and July of last year, and for being disorderly on licensed premises and punching the window of those premises until it smashed and that was committed in April of this year.  The offending places you in breach a Community Service Order imposed by the Magistrate's Court in November 2020. 

2.        We do not need to refer in detail to the facts of these cases as they have been set out at some length by the Crown in submissions before us. 

3.        With regard to the First Count of grave and criminal assault on the 1^st April 2020 you encountered your victim by chance, although there had been a history between you, in as much they had an incident with a motor vehicle and an incident at Robert's Garage.  When you met him by chance on the 1^st April 2020 there was an exchange during which you headbutted him in the face, causing his nose to bleed.

4.        With regard to the Second Count, the most serious, on the 1^st July 2020 you carried out a vicious and drunken assault on a different victim, following an exchange between the group that you were in and another group.  Although there had been a heated exchange of words, CCTV footage shows you losing your temper and striking out first at one man and then punching the victim in question, who had stepped in to intervene.  He stumbled back, although he came back to intervene again, and you then punched him in the face and knocked him backwards into the ground.  You punched him twice further whilst he was on the ground and then elbowed him in the face a further five times whilst he was lying on his back in the street. 

5.        We have noted and seen pictures of the injuries of your victim in that case. 

6.        The more recent offending took place as we have said on the 17^th April 2021 when at approximately at 11pm at the Wagon Wheel Café, you were refused further alcoholic drinks because the restaurant was closing at that time. 

7.        Footage recorded by a member of staff, shows you shouting and swearing at the café owner and female members of staff and acting in an aggressive and intimidating manner, when they tried to hold you back and asked you to leave.  Although you did leave the café, you punched the glass pane at least seven times causing the door to smash. 

8.        You were uncooperative with the police when arrested and it took officers approximately half an hour to move you from Parade Gardens to the Accident and Emergency Department for the injuries on your hand to be assessed. 

9.        As we have said, the most serious offending is the second grave and criminal assault.  We accept that neither of the assaults were pre-planned, but the headbutt to your first victim and the numerous punches and elbow strikes to your second victim were undoubtedly aimed.  Both of these incidents rose from an excess of temper and alcohol was certainly a major contributing factor in the second grave and criminal assault. 

10.      As the Crown has rightly observed, drunkenness can be no excuse and in fact is an aggravating feature which the Court takes into account.  It is fortunate that none of the injuries suffered by your victims were serious in the sense that they were not life changing or permanent, as indeed they could easily have been.  They were, however, unpleasant and painful.  In our view no material provocation arises in this case. 

11.      Although you have no previous convictions for violence, as a youth you did receive a Parish Hall warning for common assault, but you are treated for these purposes as of good character.

12.      It is clear that you have difficulties governing your temper and alcohol is a serious contributing factor to your offending.  The Court's policy has been often stated, that alcohol fuelled violence on the streets of St Helier is unacceptable and will not be tolerated by this Court and in the absence of exceptional circumstances will be met by a custodial sentence.  We have made this policy clear.

13.      We have considered all of the material put before us by the Crown in terms of previous cases and indeed we have noted the arguments put forward by your counsel on your behalf.  Your counsel has said all he possibly could have and said it most ably, and we have considered fully the background set out in the Social Enquiry Report, the Psychological Report, your letter and the references given on your behalf. 

14.      We note that you have pleaded guilty, which goes to your credit and we propose, as it is suggested, to allow full credit for that guilty plea, and we are also aware from the reports that we have read the background and the challenges that you have faced and we give those a due weight.  We note from the Social Enquiry Report that the risk of re-conviction that you present is high. 

15.      We have asked ourselves whether or not, we can in these circumstances find exceptional circumstances which enables us to depart from the policy of the Court and with some regret we find that we cannot find exceptional circumstances in this matter, and a custodial sentence cannot be avoided. 

16.      We agree with the Crown as to the manner in which the indictments should be considered, in other words we agree in this case they should not run consecutively as they could, but concurrently and we propose to impose the sentences that seem to us to achieve the correct total sentence which is the least possible sentence that we think we properly can impose.

17.      You are accordingly sentenced as follows:

First Indictment

(I)      Count 1, please stand up, grave and criminal assault, 5 months' imprisonment.

(ii)     Count 2, grave and criminal assault, 15 months' imprisonment.

Second Indictment

(i)        Count 1, Disorderly, 1 month imprisonment.

(ii)       Count 2, Malicious damage, 2 months' imprisonment, all to run concurrently.

18.      We revoke the Community Service Order and we impose no separate penalty with regard to the Community Service Order, and accordingly the sentence in total is 15 months' imprisonment.

19.      We note the application for compensation, and it appears to us that to be amply justified. 

20.      Accordingly, we make the Compensation Order in the sum of £383.33 with a default period of imprisonment of 1 month.  The payment is to be made within 6 months of your release.

21.      We are asked to consider exclusion from licensed premises under Article 2(1) of the Licenced Premises (Exclusion of Certain Persons) (Jersey) Law 1998.

22.      It is clear that the consumption of alcohol and in indeed your relationship with it was a significant factor in the worst of this offending and we think an exclusion order must in fact be justified.  

23.      You are, accordingly, excluded from 1^st, 2^nd, 4^th, 5^th and 7^th category licence premises excluding the Multiplex Cinema, Jersey Airport and the Ferry Terminal and Harbour for a period of 24 months from today's date. 

24.      We have considered the matter of deportation, applying the test Camacho -v- AG [2007] JLR 462.  We accept by reason of your offending that your continued presence would otherwise be detrimental to the Island, but we note your significant connection with the Island, your educational history, your current employment and the length of time you have spent here.  We agree with the Crown that on balance the second test in Camacho-v-AG is not satisfied and we make no recommendation for deportation. 

25.      We hope that notwithstanding the fact that you are receiving a custodial sentence you will avail yourself of all the help and support that is available to you in prison that includes the psychological help and substance abuse help that may be available. 

26.      That is the sentence.

Authorities

Licensing (Jersey) Law

Criminal Justice (Community Service Orders) (Jersey) Law 2001

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

Criminal Justice (Compensation Orders) (Jersey) Law 1994

Camacho v AG [2007] JLR 462

Harrison v AG [2004] JLR 111

AG v Nafkha 2000/86

AG v Passman [2007] JRC 230

AG v Rowe [2008] JRC 218

AG v Courval [2009] JRC 244

AG v Whitcombe [2014] JRC 173

AG v Carboulec [2015] JRC 196A

AG v Sharman [2016] JRC 067A

Whelan's Aspects of Sentencing (Third Edition)