Jersey Unreported Judgments

Grave and Criminal Assault - re reasons for the decision.

[2022]JRC161

Royal Court

(Samedi)

2 August 2022

The Attorney General

-v-

Luis Abreu dos Santos

Crown Advocate M. R. Maletroit for HM Attorney General.

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE commissioner:

1.        The Defendant was sentenced on 27^th July on one count of Grave and Criminal Assault, committed on his partner at the home which they shared on 17^th October 2021, with reasons to be given later.  This judgment contains those reasons.  The indictment also contained a charge of attempted murder, in respect of which the Jury could not reach a majority decision, and of which the Defendant accordingly was not convicted.  This Court has been careful to ensure that the Defendant was sentenced on the basis of the lesser charge, to which the Defendant pleaded guilty on the first occasion in this Court when he was indicted on 17^th December 2021.  On his advocate's advice, he had successfully applied for leave not to enter a plea to the charges when these were laid against him in the Magistrate's Court.  

2.        In the usual way, the Crown prepared a Summary of Facts, but, prior to sentencing also applied for the presiding judge to communicate his views on certain facts in dispute to the sentencing Court.  Those views were expressed in writing to the Crown and to the defence, and a copy of them was made available to the Jurats. 

3.        The circumstances of the assault were these.  The Defendant, who had discovered that his long-term partner was in a sexual relationship with another man, had been out on the day in question with their children.  When the Defendant returned to their home, his partner was resting in the bedroom, having earlier been at work.  Having told the children to stay in the living room, the Defendant then proceeded to the bedroom, armed with both a kitchen knife and a meat cleaver, and confronted his partner who was lying on the bed.  After some discussion, the detail of which is disputed between them, the Defendant attacked her with the meat cleaver, and, in the struggle as she sought to defend herself, she was wounded on the head, neck, arms and hands.  The assault lasted some 10 to 15 minutes.  The injuries which the Defendant caused her were severe, including a fractured skull and a wound to the side of the neck, which penetrated close to the major blood vessels and could have been fatal.  His partner told the jury that the Defendant only stopped attacking her when she lay motionless on the bed and pretended to be dead, at which point the Defendant called the emergency services.  The jury heard the evidence that the telephone operator asked the Defendant to fetch a clean towel and put it over the wound to the neck.  This the Defendant did, holding the towel firmly on her neck with a view to compressing the wound and preventing further blood loss.  The Defendant told the jury that he had apologised to her whilst waiting for the ambulance to come, and that he loved her.  The Defendant also told the jury that he asked for her forgiveness. 

4.        The Defendant was challenged by the Crown in cross-examination; and I have directed the Jurats that in my view the Defendant was a truthful witness.  Whether or not he only intended to scare his partner when he first entered the bedroom, armed with both the meat cleaver and the kitchen knife - and we recognise that is a possibility because if he had intended more than to scare her there was perhaps no purpose in taking both weapons with him - I have also directed the Jurats that I have no doubt that in the course of the struggle, when he wielded the meat cleaver, the Defendant must have intended to cause his partner serious harm.  This only illustrates what this Court has said so often: arming oneself with a knife often leads to circumstances going out of control, whether as here it is the Defendant's control, or a loss of control in others.  This Court cannot understand how the Defendant can have thought it remotely appropriate, even on his account, to arm himself as he did before confronting his partner over her affair.  It was bound to lead to trouble.

5.        The Crown has put before us both an Impact Victim Statement as prepared by Dr Jamie Connor, an expert psychologist; and a Victim Personal Statement signed by the victim.  She says that what the Defendant did to her is always in her head, and, no matter how hard she tries, she cannot forget it.  She is no longer the same person - she cannot work and she has constant pain with limited movement, so much so that at times she cannot raise her right arm, which causes her difficulty in dressing.  Her doctor has given her various types of pain medication, and also drugs to help her to sleep, which are not always effective.  She has to ask her sister and her daughters to help her with tasks in the home.  Whereas previously she led a normal life, she now avoids leaving home.  She feels that people outside constantly look at her, which makes her feel worse about herself.  She has been left with scars following the incident which she tries to cover up as much as possible.  Understandably, she has had difficulties with their two daughters who are torn between conflicting loyalties to both parents, and this causes her additional distress.  She asks for a restraining order to be imposed because she says that she is afraid that when the Defendant is released from Prison, he will look for her and kill her. 

6.        Dr Connor was instructed in May this year, following the trial, to provide a psychological report on the victim.  A number of criticisms of her report have been advanced by Advocate Boothman in his careful and measured submissions on the Defendant's behalf.  The essential criticism was that the expert was not given the correct information for the purposes of her interview of the victim because she did not have her medical history, and therefore her conclusions are not perhaps as reliable as might otherwise be the case.  Furthermore, Dr Connor does not appear to have been able to interview the victim in person but did so remotely in a short two-hour meeting through an interpreter, and, as her report makes clear, the information from that interview was presented either verbatim or summarised without any interpretation - it is an account of what was said without any conclusions drawn as to whether it was accurate or true.  It was contended that the doctor's opinion was founded on the self-reporting of the victim, and we are invited to treat it with caution. 

7.        Nonetheless, the reports of both Dr Evans and Dr Connor do make it clear that the victim is very likely suffering post-traumatic stress disorder symptoms; and given the nature of the assault, it can hardly be thought surprising that this should be the case.  In addition, other tests show that the victim is experiencing symptoms of anxiety and autonomic hyperarousal, intrusive post-traumatic reactions which lead her to feel out of control, and this may be compounded by her attempts to eliminate painful thoughts or memories from conscious awareness - what is called defensive avoidance.  Understandably, Dr Connor expresses the view that it would help the victim considerably if alternative accommodation could be found for her and her daughters, which would ameliorate her emotional distress, and we would endorse that. 

8.        These reports emphasise the seriousness of the assault.

9.        Dr Connor is clearly experienced in providing victim impact reports for sentencing courts in England and Wales because she makes an analysis of the severity of psychological harm caused to the victim by reference to the sentencing guidelines there.  These classifications are generally not helpful in this Court.  As has been said on many occasions, the English Sentencing Guidelines lead to a "tick box" approach to sentencing which is not adopted in this jurisdiction. 

10.      The use of the Sentencing Guidelines has received considerable attention in both this Court and the Court of Appeal over the last 10 years.  Perhaps almost inevitably, every time a Court seeks to explain its view of the correct approach to the guidelines, slightly different language is used which, in subsequent cases, can then be exploited by either prosecution or defence to suggest a yet further formulation of the appropriate test.  In the view of this Court, the position established by the Court of Appeal cases, and in particular the case of K v AG [2016 (2) JLR 487] has indeed settled the position.  K was considered and applied by the Court of Appeal in a decision of W v AG [2022] JCA 117.

11.      At paragraph 27 of K, the Court summarised the position with these propositions;

(1)       Jersey is a separate jurisdiction and the Courts are entitled to fix their own sentencing levels.  The Royal Court is not in any sense bound by the guidelines.

(2)       The analysis of aggravating and mitigating factors which is 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.

(3)       The Court would be influenced by the sentencing levels envisaged by the Guidelines when considering the particular conduct in which K was involved because it considered the sentencing level to be correct for that conduct.

(4)       The Court should decide on the appropriate sentence for the offence before it in every case and it did not follow that because the guidelines were helpful in the case of K, they would always be helpful to enable the Courts to arrive at the correct level of sentence for that particular offence in the jurisdiction of Jersey. 

(5)       There was no reason in principle why it should be thought right for Jersey to impose lower sentences for the offence as committed by the Defendant K in that case than would have been imposed in England and Wales (emphasis added). 

12.      In the more recent case of W, the Court of Appeal emphasised that the Royal Court was entitled to consider what the sentencing regime in England might have produced by way of sentence, if it found it helpful, but not only was it not obliged to follow that conclusion but it was also not obliged to explain why it did not do so in cases where that was the outcome (see paragraph 44).

13.      In the present case, the Crown's conclusions contain these submissions:

"Sentencing Council Guidelines

Noting that Harrison was decided over 18 years ago, and the lack of local authority concerning the sentencing of non-fatal assaults involving wounding with a knife, the Crown has also had regard to the English Sentencing Council Guidelines for the offence of causing grievous bodily harm with intent, contrary to Section 18 of the Offences Against the Person Act 1861.  The Crown has done so for the limited purpose of comparing the factors applied in that jurisdiction when assessing the severity of the offence whilst acknowledging that the guidelines have no application in Jersey.  For the avoidance of doubt the Crown has not placed any weight on the starting point or sentencing ranges in the English guidelines bearing in mind the differences between the offences and the sentencing regimes..."

14.      Having introduced the section in that way, the Crown then contends that this offence would be categorised in the English Guidelines at the highest levels of culpability and harm, and the Guidelines themselves are put in the sentencing bundle with its starting points and ranges for custodial sentence for this Court to consider.  In our judgment, there are two difficulties with this, notwithstanding that Crown Advocate Maletroit was careful to ensure we did not think he was submitting that the Guidelines ought to be applied as a whole.  The first is that there is no direct read-across to the offence of grave and criminal assault from the offence created by section 18 of the Offences against the Person Act 1861.  The second is that the philosophy that adopts the English Sentencing regime wherever there is no reason identified for a materially lower sentence in Jersey could be seen as a statement that the English regime should apply; yet it is to be remembered that there is a series of reasons why that regime should not apply: 

(1)       Although the criminal offences themselves may be similar, the relationship between the sentences for those offences and other offences (which may or may not be replicated here) may well have an effect in England and Wales which the Sentencing Guidelines Council can be expected to have considered.  That objection is all the more obvious in cases where we do have the same offences but also a settled but different sentencing policy, as with drug trafficking for example.  The relativities between sentencing for different offences are important considerations for any sentencing court because that is an exercise which will have an impact on the public at large in their consideration of the fairness of the sentences handed down.  The fact is that this island is a different sentencing jurisdiction.

(2)       There is a different penal system in England and Wales then we have here - a different range of sentences not only in terms of quantum but also in terms of type.  Furthermore, the way in which the penal system works is different.  There is a parole system in place in England which we do not replicate, and the extent to which prisoners of foreign nationality can serve their sentences in their home jurisdiction is also different, not all of the relevant conventions which apply in the United Kingdom being available in Jersey.  Again, one could expect some at least of these considerations would form part of the review of sentences which the Sentencing Guidelines Council is engaged with.  

(3)       The composition of the Sentencing Guidelines Council reflects more than just a judicial qualification.  Indeed, as is clear from an article written by Sir John Saunders in the Criminal Law Review, sentencing levels in England and Wales went up discernibly after Schedule 21 of the Criminal Justice Act 2003 came into force in 2005.  The result of that Schedule was to lay down starting points that judges had to use when sentencing for murder, as a result of which cases which might have previously attracted a life sentence of 10 years before the change might attract a tariff of double that length afterwards (see paragraph 72 of the House of Commons Justice Committee Report "Prisons Population 2022: Planning for the Future" HC 483.  It was said that of the changes introduced by the then Home Secretary (perhaps because the House of Lords in the case of R (on the application of Anderson) v SSHD [2002] UK HL46 ruled that it should be the judges who decided the minimum period of incarceration and not politicians and that the then existing procedure was a breach of Article 6 of the European Convention on Human Rights) that the inevitable consequence was that Schedule 21 would not only increase sentences for murder but also would have a knock on effect on sentences for different offences.  As Sir John Saunders said in his article:

"To give some idea of the practical effect of the introduction of Schedule 21, a Defendant gang member in London who kills by shooting on the instructions of the rest of the gang, would probably would have got a minimum period of about 16 years before the introduction of Schedule 21.  He would now get one closer to 30.  The effect of that on someone convicted at the age of 19 is enormous."

15.      This had a knock-on effect on sentencing for the offences of attempted murder, manslaughter and causing grievous bodily harm with intent - see Barot, [2007] EWCA Crim 1119; Hunter [2007] EWCA Crim 3424; Duffy and Others [2008] EWCA Crim 1436; Appleby and Others [2009] EWCA.

16.      As this Court said in AG v Dobrin [2019] JRC 097 at paragraph 17 and 18:

"17.    It is not the case therefore that there is a general presumption that sentencing levels envisaged by the Guidelines in England and Wales are the appropriate sentencing levels in Jersey.  Furthermore, the Royal Court is not encouraged by the Court of Appeal to apply a mechanical approach to sentencing in these cases.

18.      It is regrettable that despite the number of occasions when this Court has made it plain that the Sentencing Guidelines, which have been published for use in England and Wales where there is a statutory requirement to follow them, do not set levels which should necessarily be applied in Jersey, conclusions frequently encourage the Court to do just that.  The guideline sentencing decisions in this Court and the Court of Appeal have consistently indicated that the analysis of what are relevant factors of harm and culpability, or aggravation or mitigation as set out in the Guidelines are frequently very useful indicators of the relevant factors to be taken into account by the sentencing Court.  However, that is as far as it goes.  We decline to analyse the conduct in the present case by categorising it as falling within Category 1, 2 or 3, or Category A or B as the case may be as defined in the English Guidelines.  That would be an unhelpful approach because it would immediately invite comparison with the actual figures which the Guidelines contain."

17.      Accordingly, although it is of course open to the Royal Court to have regard to sentencing levels in any other jurisdiction, we do not encourage the direct reference to the Sentencing Guidelines other than for the purpose of considering the issues of culpability and harm sustained, as said by the Court of Appeal, to the extent that that is appropriate in the relevant case.  In our judgment it is hard to describe any reference to the end result as providing a useful cross check because the nature of a cross check is that one needs to be satisfied that what one is checking against is something relevant for our purposes.  But the premise is that we do not accept that the English Sentencing Guidelines provide an outcome which is necessarily reliable for us in Jersey, and that being so, the purpose of a cross check would seem to be very limited indeed.  If it shows that the sentence which the Royal Court had decided upon was the same as that recommended in the Guidelines, there is no additional benefit for all one has is the knowledge that on that particular occasion, the Royal Court had considered that the facts merited a sentence which the tick box approach adopted by the use of the Guidelines would have directed in England.  By contrast, if the Royal Court's conclusion of what the proper sentence ought to be was different from the result which would have been obtained in England, it cannot be said that it was necessarily wrong, as indeed both K and W make clear.

18.      Accordingly, without reference to the Guidelines, we have considered the Harrison factors which we think remain appropriate factors to consider in this jurisdiction.

19.      There were multiple blows, aimed at the victim in a sustained assault which caused her some serious injury.

20.      The offence was committed when the Defendant was angry at his former partner's infidelity.  Next, the expert evidence was that the weapon was used with a minimum of mild to moderate force.

21.      In addition to the post-traumatic stress which the victim sustained, there has been some serious scarring and the attack has damaged nerves and muscles.  Dr Evans opined that the victim would probably never regain full movement of her right shoulder.  The Crown contend that there was no provocation prior to the assault.  We have noted the Defendant's evidence that not only was there the infidelity which he had discovered, but also that the victim had taunted him during the course of their discussion in the bedroom prior to the assault taking place.  In accordance with directions from the trial judge, we have considered the Defendant to be a credible witness. 

22.      The Defendant has committed a serious assault, using a weapon, and causing serious psychological harm to the victim. 

23.      We think the correct starting point for such an offence would have been 9 years imprisonment after a trial.

24.      Here there were also aggravating factors.  The assault took place over a period during which his children were in an adjacent room.  They are suffering the trauma of what happened to their mother, as well as the trauma of seeing the Defendant arrested by police officers and tasered.  That the Defendant has not been able to see them since the incident is an obvious consequence of his own actions but emphasises that they have suffered as a result of this offending.  The assault upon his partner is aggravated by the fact that it took place in her own home which ought to be a place of safety and security; and it is also aggravated by the fact that the person committing the assault was indeed a person whom she was entitled to rely upon as a protector and not as an assailant.

25.      We do not however take the view that there is as little mitigation available to the Defendant as has been suggested by the Crown.  First of all, he has pleaded guilty at the earliest opportunity in this Court and in our judgment is entitled to a full one-third discount for that plea.  This Court is entitled to conclude that the court below must have had good reason to allow the Defendant not to enter a plea at the first opportunity and he should not now be penalised for not doing so.  Secondly, the Court recognises that the offence was committed under emotional distress.  That does not excuse his conduct, but it makes it more understandable.  Thirdly, and this is in our judgment an important piece of mitigation on which the Crown has placed no emphasis, the Defendant did call the emergency services and followed their instructions whilst waiting for the ambulance to arrive.  Fourthly, he has expressed remorse, notwithstanding the contention to the contrary, both directly to his former partner at the time, and to the jury and in his letter to this Court.  Fifthly, he is to be treated as a man of essentially good character, and furthermore he has provided a number of references which attest to his good qualities. 

26.      The Defendant has to live with the consequences of his assault on his former partner, which include not only the knowledge that what he did to her was very wrong indeed and inexcusable, but also the serious impact it will have had on his daughters and his relationship with them.  On balance, we considered that, having allowed a full discount for the guilty plea, the aggravating factors carried slightly more weight than the remaining mitigating factors and accordingly concluded that he should be sentenced to a term of six and a half years imprisonment. 

27.      The Crown proposed that we make an indefinite restraining order pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment (Jersey) Law 2008.  No objection to this in principle was raised by Advocate Boothman, although he made plain on his instructions that the Defendant had no intention of ever causing his former partner any difficulty like this again.  Indeed, we were told that he would be looking for psychological help to understand how he could have so lost control as to have committed this assault. In those circumstances, we have not looked further into our jurisdiction to make the order, which Crown Advocate Maletroit submitted was justified on potential future harassment grounds.  We say only now, as we said in court when passing sentence, that the Defendant does of course have the right to apply for a variation of the order we are now making at a future date.  

28.      The only point raised by Advocate Boothman was that it was important that no restraining order should give the impression that the Defendant should not in due course have contact with his children.  The question of contact is not directly before us now, but we have varied the Crown's draft order by the addition of the following language, as indeed drafted by the Crown when this question was put to Crown Advocate Maletroit.  Accordingly, the order is made in these terms:

That the Defendant be prohibited from approaching or contacting, directly or indirectly, [the victim], other than:

a.        any contact which is inadvertent or unavoidable, or

b.        indirect contact through Children's Service in relation to arrangements for the children, [Redacted] and [Redacted]; or

c.        indirect contact through lawyers for the purposes of proceedings in the Family Division of the Royal Court; or

d.        otherwise as ordered by the Family Division of the Royal Court.

29.      Finally, we turn to the question of deportation.  Our approach in this matter is guided by the decision of the Court of Appeal in Camacho v AG [2007 JLR 462].  The Crown has not contended that the Court should recommend deportation, and we do not do so.  We do find that an offence of the kind which the Defendant has committed means that his continued presence on the island is detrimental to the public good and the first part of the test is therefore met.  However, we agree with the Crown that it would be disproportionate to recommend deportation given the relevant Convention rights which not only the Defendant but also his children have.  In addition, he has two sisters and two nephews living in the island. 

30.      The Crown considers that the question of deportation is perhaps marginal - the conclusions are said to have been reached "with some hesitation".  We do not take the view that there is any doubt about it.   By the time the Defendant is released from custody, his children will be older but still minors.  It is to be hoped that some arrangements will at some point be made for him to resume contact with them, and we think their rights under Article 8 of the Convention are to be respected in this regard.  Furthermore, he has lived in Jersey since 1996, with a good work record.  In our judgment it would be disproportionate to recommend deportation and we do not do so. 

Authorities

K v AG [2016] (2) JLR 487.

W v AG [2022] JCA 117.

R (on the application of Anderson) v SSHD [2002] UK HL46.

Barot [2007] EWCA Crim 1119.

Hunter [2007] EWCA Crim 3424.

Duffy and Others [2008] EWCA Crim 1436.

Appleby and Others [2009] EWCA.

AG v Dobrin [2019] JRC 097.

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

Camacho v AG [2007] JLR 462.