Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2013]JRC191

Royal Court

(Samedi)

27 September 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Le Cornu and Milner.

The Attorney General

-v-

Marco Aurelio Andrade

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

1 count of:

Grave and criminal assault (Count 1).

Age:  36.

Plea: Guilty.

Details of Offence:

Intoxicated, the defendant, a Portuguese national, returned home to his pregnant girlfriend in the early hours of the morning.  An earlier argument resumed, during which the defendant alleged that the victim struck him with a baseball bat.  The victim did not mention the use of a bat in her initial statement, or to the police at the time.  The Court noted that the defendant had not sustained any injuries consistent with having been struck by a bat.  However, in light of the letters written by the victim to the Defence suggesting that she had used a bat, and the fact that the Crown was of the view that it would make little difference to the ultimate sentence, the Court went on to sentence on the defendant's assertion.  It was accepted that the defendant quickly disarmed the victim and went on to assault her.  The assault consisted of numerous punches to the face and strangulation, only ceasing when a neighbour, who had heard the commotion, went to the front door and continually rang the doorbell until the defendant answered.  The neighbour saw the victim in a foetal position lying on the floor, bleeding and sobbing.  The victim had numerous bruises to the face, a haemorrhage to her eye, swelling and abrasions.  When the police arrived, the defendant gave a false identity.  During interview he expressed no remorse, stating that the victim was the instigator and that he had lost control due to his high level of alcohol consumption that night. 

Details of Mitigation:

Plea of guilty.

Previous Convictions:

2011 - Possession of cannabis and breach of the peace.

2005 - Imprisonment for drugs offences in the USA and subsequent deportation.

Outstanding - Arrest summons issued in 2009 in Guernsey for failing to appear at court on a charge of having a blade in a public place.

Conclusions:

Count 1:

2 years' imprisonment.

Exclusion Order sought from 1^st, 2^nd, 3^rd, 4^th, 5^th and 7^th category premises excluding the Multiplex Cinema, the Jersey Arts Centre, Jersey Airport, the ferry terminal at Elizabeth Harbour and the Opera House, for a period of 12 months, taking effect from the day on which the defendant is released from prison.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:

2 years' imprisonment.

No Exclusion Order made.

Recommendation for deportation made.

Ms S. J. O'Donnell, Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You assaulted your partner by punching her repeatedly and choking her by placing your hands around her neck.  The assault was such that your neighbour could hear your partner calling for help and crying out in pain and weeping.  To her great credit your neighbour did not sit back and do nothing, she came to your front door and rung the doorbell repeatedly until eventually you answered it.  You said everything was okay but your partner said "No it is not, help me."  She was lying on the floor in a foetal position; she was crying and bleeding and your assault had caused her cuts and bruises to the face and a haemorrhage of the left eye. 

2.        The tragedy is that in your childhood you witnessed repeated domestic violence by your father on your mother, and now you have repeated this type of conduct.  The offence was aggravated by the fact that you had recently learnt that she was pregnant with your child and also by the fact that her children were in the bedroom next door.  You have a previous conviction for breach of the peace by fighting and you were deported from the United States for drug offences. 

3.        An issue has arisen as to whether the victim used a baseball bat during the argument which preceded the assault.  In her original statement the victim denied this.  The expert medical report suggests that the injuries that you suffered were not consistent with being struck by a baseball bat.  However, you have asserted from the start that she did strike you once, although it is inconsistent as to whether it was in the back or the back of the neck; but in any event you have said that she did strike you and you then took the baseball bat from her, and then the assault followed.  The victim has now withdrawn her statement and has written to us saying that she did use a baseball bat. 

4.        In the circumstances we are going to proceed on the basis that there was an argument between you, that she did strike you once with the baseball bat, but you then disarmed her and you then assaulted her as described.  So there was provocation in that sense.  However, the blow from the baseball bat cannot have been very hard because of the lack of injury to you which could have been caused by it, as the medical evidence says. 

5.        In any event, even accepting as we do that one blow from her with the baseball bat, your reaction was completely out of proportion.  This Court has repeatedly said that women are entitled to the protection of the court in order to make them feel safe in their own home and the Court takes a serious view of domestic violence. 

6.        Advocate Jones has referred us to an observation of the Deputy Bailiff at paragraph 5 of the judgment in the case of AG-v-Horn [2010] JRC 104.  We are going to read the whole of paragraph 5.  It is the last sentence on which Advocate Jones focuses but it is difficult to understand that sentence without seeing the context in which it is said.  What the Deputy Bailiff said was this:-

"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."

It is that last sentence, as I say, that Advocate Jones relies on and in context, of course, the reference to "their hardships" and "their difficulties" is to the hardships and difficulties of defendants.  Advocate Jones argues that what the Deputy Bailiff was saying there is that the Court must pay high regard to the wishes of the victim.  He says that is what was meant by the Court "focusing" on the victim, as the Deputy Bailiff said.  In our judgment that is to misconstrue what the Deputy Bailiff said.  The Court there was explaining that it would have regard to the need to protect victims rather than focusing on any particular hardship or difficulty of a defendant.  Of course the Court will always be interested to hear what the wishes of a victim are, but it is wrong to say that that passage in the Deputy Bailiff's judgment means that the Court must, in effect, follow those wishes in order to focus on the victim.  There are other public interest factors at play in cases like this. 

7.        Advocate Jones has urged that we should impose a non-custodial sentence.  He has spoken strongly of the mitigation; he has referred to the guilty plea; to the fact that you have no previous domestic violence; he has emphasised the wishes of the victim, because she says that you both plan to marry and she is worried about the effect on the unborn child of not having a father there.  He has referred also to the excellent references and to your letter, to your good work record and he has also pointed out that it is important to address any tendency you may have to drink problems or to domestic violence by courses which are only available where there is a Probation Order so that they can be given outside of the prison context. 

8.        We have carefully considered these points, but in our judgment for an offence of this gravity, a prison sentence is required.  Even allowing for the provocation of the initial blow by the victim with the baseball bat, we think that a sentence of 2 years is correct and allows for the mitigation. 

9.        The sentence of the Court is one of 2 years' imprisonment. 

10.      Turning to the question of deportation, we have no hesitation in concluding that your continued presence in the Island is detrimental.  This is a serious offence.  You have a previous conviction for breach of the peace and there is an outstanding charge for carrying a blade in Guernsey.  You have also committed an offence of possession of cannabis in Jersey.  You are assessed as being at medium risk of re-offending.  In our judgment this first limb of the well-known two-limbed test in deportation cases is met.  What has caused us more difficulty is consideration of the second limb, namely the Article 8, Convention rights of you and of the victim and of your unborn child.  You came to Jersey in either late 2008 or early 2009, there seems to be some inconsistency.  You formed a relationship with the victim in January of this year, so it has lasted now for some 8 months or so, and, until your arrest, you were spending part of the week with her.  She already has four children and, as we have said, she is now expecting a child by you in November.  You have no other family connections in Jersey.  You were born in Madeira, you moved at a fairly young age to the United States where your mother and sister still live, as does your daughter who is now 13, although you have not seen her for some  8 years.  You went back and spent some time in Madeira with your father, who had returned there following separation, but he has died, and you then came to Guernsey and then to Jersey as we have said.  The victim urges that we should not recommend deportation because she and you plan to marry and she wishes you to be present as the father of her child. 

11.      The Children's Service have expressed concerns about the position if you were all to get together.  Paragraph 18 of the background report says this:-

"[The victim] is aware that the Children's Services would have significant concerns for all five children if the couple return to the relationship and Mr Andrade had not completed any work regarding his crimes/issues.  I would envisage a Child Protection Conference would be considered if Mr Andrade returned to a relationship with [the victim] but further risk assessment would be needed at the time."

12.      We have had to balance the interests of the community with the interests of your unborn child, the victim and, of course, yourself.  We have come to the conclusion that the interests of the community must prevail; it would not be disproportionate to recommend deportation and therefore we do. 

13.      In the circumstances we do not make an Exclusion Order. 

Authorities

AG-v-Horn [2010] JRC 104.

Harrison-v-AG [2004] JLR 111.

AG-v-da Silva [2011] JRC 113.

AG-v-Barwise [2009] JRC 182.

Camacho-v-AG [2007] JLR 462.