Jersey Unreported Judgments

Inferior Number Sentencing - assault

[2021]JRC210

Royal Court

(Samedi)

13 August 2021

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Dulake and Austin-Vautier

The Attorney General

-v-

Marcio Patricio Figueira Dias

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

1 count of:

Assault (Count 2).

Age:  42. 

Plea: Guilty. 

Details of Offence:

The defendant entered a basis of plea to common assault which was accepted.  The not guilty plea to grave and criminal assault was accepted and was discharged.

 

The defendant and victim had been in relationship at the time of the offence.  The victim gave an account at the time but did not provide a statement to the police.

 

On 9^th January 2021 the defendant and victim had been drinking alcohol together at the victim's home address.  An argument broke out in the kitchen as the defendant accused the victim of 'cheating' on him.  He lost his temper and grabbed the victim by her hair.  He pulled her hair with enough force to pull a large clump from her head.  The argument continued and the defendant started throwing kitchen items on the floor including a frying pan and a saucepan.  The victim ran to the living room where she got her mobile telephone, locked herself in the downstairs bathroom and called 999.  Whilst the victim was on the phone to the Emergency Services the sounds of kicking and banging could be heard.  The Police arrived at the address and saw the defendant trying to get into the downstairs toilet.  The victim was found locked inside the bathroom.  The Police found a clump of the victim's hair on the kitchen floor and a further quantity of hair fell out into the victim's hand whilst she talked to the Police.  The kitchen had smashed plates and food items all over the floor including a fridge door and frying pans.

 

The victim's injuries consisted of abrasions on the wrists and head, swelling behind the ear and an area of baldness on the left side of the head above the left ear.

Details of Mitigation:

Guilty plea, remorse, employment.

Previous Convictions:

Local convictions for motoring offences, possession of cannabis and perverting the course of justice.

 

Previous convictions in Madeira for drug trafficking, theft, aggravated theft, and larceny.

Conclusions:

Count 2:

12 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 2:

9 month's imprisonment.

Recommended for deportation by majority. 

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

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Court did not deal with the grave and criminal assault count in Count 1 on the last occasion and accordingly you have entered a not guilty plea for that and the Crown accepts that plea and you are discharged from that part of the prosecution.

2.        You are to be sentenced today for one count of common assault.  This was an incident of domestic violence against your partner carried out at her home address on 9^th January.  We do not need to go into the full details of the assault, these have been fully set out by the Crown.  However, in summary, you had been in a relationship with your victim for about 2 years.  You had both been drinking alcohol together at her address on the date in question and you were intoxicated.  An argument broke out between you in which you accused your partner of cheating on you, you lost your temper and grabbed her by the hair with enough force to pull a large clump of hair from her head.  The argument continued and you started throwing kitchen items onto the floor.   Your partner, the victim, ran into the living room, retrieved her mobile phone and locked herself in the downstairs bathroom and called 999.  You remained in the kitchen throwing items and subsequently came and punched the bathroom door. 

3.        We have heard the telephone call recording and we have read the transcript and it clearly demonstrates that you were still kicking and banging things around in her accommodation after she had locked herself in the bathroom.  It must have been a very frightening ordeal for her, and the police officer attending the scene described her as physically shaking.  She apparently told officers that you were not normally like that and thought you might have taken something.

4.        You were arrested and taken to police headquarters.  Your victim was examined, and she had suffered linear abrasions to the wrist and abrasion to the top right hand side of her head, tender swelling to the right side of her head behind the ear and an area of baldness above the left ear.  You gave no comment interviews.

5.        You were originally charged in the Magistrate's Court with grave and criminal assault and jurisdiction was declined.  On indictment you maintained that plea and a substitute count of common assault was added and you pleaded guilty to that on the basis of a plea which has been accepted by the Crown and on which you are sentenced today.

6.        We have of course paid regard to the various case examples put before us by the Crown but suffice it to say that instances of domestic violence in the victim's home, a place where she is entitled to feel safe, are always treated as serious by the Court and each case will of course turn on its own particular facts.

7.        You were admittedly intoxicated but of course that is no excuse, and in fact it is an aggravating factor, as is the fact that the offence took place inside your victim's own home and is domestic in nature.  Those are serious aggravating factors. 

8.        You do not have a good record, but you do not have any previous convictions for domestic violence.  We note that you have the benefit of a guilty plea, that you were in employment at the material time and we have read the reference from your employer.  We note the other mitigation available to you and we note the contents of the Social Enquiry Report and that you have indicated feelings of remorse for the actions that you have taken.  We also note, alcohol being an factor, that the risk of further domestic violence occurring is assessed as moderate.

9.        In our judgment this was a serious common assault of a domestic nature and the only appropriate sentence is one of imprisonment, but we think that the Crown's conclusions are too high, and you are accordingly sentenced to 9 month's imprisonment for common assault.

10.      We turn now to the question of deportation.  The Court of course applies the two stage test in Comacho v AG [2007] JLR 462 in which the Court first asks whether your continued presence is detrimental to the Island and, if so, the Court then goes on to consider the effect of your deportation on the human rights of innocent persons connected to you and on yourself.

11.      The Court has considered deportation in your case in the past.  As we have heard in 2017 in the case of AG v Dias (that is you) [2017] JRC 114 the Court said this:

"Although we are not making an order, a recommendation for deportation today, you must appreciate that if you commit any further offences and the question of deportation comes up again this will work very much against you."

12.      In considering the two stage test in Comacho the Court is unanimously satisfied that your continued presence is detrimental to the Island, but the Court is divided as to whether the second stage of the Comacho test has been passed.  By a majority, therefore, the Court finds that the second stage of the Comacho test has been passed and that the detriment to the Island by your continued presence outweighs the human rights considerations. 

13.      Accordingly, on the conclusions of your sentence the Court recommends that you are deported. 

Authorities

Comacho v AG [2007] JLR 462. 

AG v Dias [2017] JRC 114. 

AG v Nicolle [2020] JRC 201. 

AG v Smale [2013] JRC 176. 

AG v Duffy [2017] JRC131. 

AG v Crabtree [2017] JRC143. 

Coelho v AG [2020] JRC 216. 

Whelan on Aspects of Sentencing in the Superior Court of Jersey