Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2014]JRC077

Royal Court

(Samedi)

24 March 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Fisher and Milner.

The Attorney General

-v-

Marco Paulo Dee Freitas Abreu

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:  35

Plea: Guilty.

Details of Offence:

Abreu, who was extremely intoxicated, inflicted a single blow to the face of the victim, who was a stranger to him.  Abreu was holding a beer bottle, which smashed on impact, causing a laceration above the victim's eye, and a deep laceration below it. 

In interview, Abreu initially denied the offence, only admitting it when shown the CCTV.  He maintained that he must have been provoked, but could not give any details, saying he could not remember what, if anything, had been said to him.  CCTV shows that the men talked only very briefly before the attack.

Details of Mitigation:

Guilty plea; cooperative with the police; remorse.

Previous Convictions:

Three minor convictions.

Conclusions:

The Crown did not accept that there was any provocation, and submitted that there were no features justifying a departure from the Court's policy of imposing custodial sentences for acts of serious drunken violence.

Count 1:

15 months' imprisonment.

Exclusion order for 12 months from date of release from prison from 1^st, 2^nd, 4^th, 5^th & 7^th category licensed premises.  Excluding the Multiplex cinema, Jersey Arts Centre, Jersey Airport, the ferry terminal at Elizabeth Harbour, the Opera House and any place of employment sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

Conclusions granted.

C. M. M. Yates, Esq.  Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant stands to be sentenced for a grave and criminal assault, committed at a night club in which he hit the victim with a bottle, causing it to smash on impact and inflict two cuts close to the victim's right eye, which required stitching.  The defendant was heavily intoxicated and can give no explanation for this assault which appears to be unprovoked.  The victim says that there was no provocation; for him it all happened very fast and he did not see it coming. 

2.        The defendant has a history of illicit drug taking, superseded by weekend binge-drinking over the past 5 years.  His has a record of public disorder offences, all of which occurred under the influence of alcohol. 

3.        The Social Enquiry Report states that the positive aspects of his life, namely his stable employment and strong work ethic, his accommodation and leisure interests, lead him to be assessed at a low level of re-offending.  None of these factors however prevented this serious offence and the report expresses the opinion that unless he is serious about addressing his binge-drinking behaviour the risk of reconviction is likely to be on the moderate side. 

4.        Dr Emsley's psychological report found the defendant to have a low level of intellectual functioning.  She undertook a joint assessment with the Probation Officer of the risk of future violence, which indicated that the defendant presented a low risk.  However, she went on to say this at paragraph 8.2:-

"I judge alcohol misuse to be a very serious risk factor in Mr Abreu's case and in my opinion he will remain at risk of re-offending if he does not at least manage his alcohol intake, or become totally abstinent."

5.        The Crown reminds us that the policy of the Court is clear, namely to impose a custodial sentence for acts of serious drunken violence, which this was, and the Crown moves for a sentence of 15 months.

6.        In terms of mitigation the defendant pleaded guilty and was cooperative, as far as he could be, at interview.  He has expressed remorse which both the Probation Department and the psychologist believe to be genuine.  We have considered everything that Mr Landick has said by way of mitigation.  He has asked us to consider community service so that the defendant can continue in his employment and tackle his alcohol problem with the assistance of the Alcohol & Drugs Service, but in our view this offence is too serious to permit of a non-custodial outcome.  We therefore accept the conclusions of the Crown.

7.        In relation to the Count in the Indictment against you, you are sentenced to 15 months' imprisonment. 

8.        We are also going to impose the Exclusion Order sought by the Crown, which is not objected to by the Defence, namely excluding the defendant from 1^st, 2^nd, 4^th, 5^th and 7^th category licences, excluding the multiplex cinema, the Jersey Arts Centre, the Jersey Airport, the ferry terminal at Elizabeth harbour, the Opera House and any place of employment of the defendant for a period of 12 months, taking effect from the day on which the defendant is released from prison.

9.        Turning to the issue of deportation.  The defendant is a Portuguese national and the Crown is of the view that his deportation should be recommended.  The test is that laid down by the Court of Appeal in Camacho v AG [2007] JRL 462.  The Court is required to find first that the offender's continued presence in the Island is detrimental to the public good and secondly that his deportation would not be disproportionate having regard to the relevant Convention Rights of the Applicant and others not before the Court, in particular the rights of the applicant and his family, in respect of family life under Article 8.  The defendant was brought up in Madeira, where he developed a heroin addiction.  At the age of 29 and to help get away from this he moved to Guernsey, where one of his sisters lived and worked.  After about a year, (in 2009), he moved to Jersey, where he has a brother living and working.  He has been employed here ever since, currently as a kitchen porter. 

10.      His history shows firstly that in Guernsey in 2009 he was convicted of disorderly behaviour and fined £500.  Secondly, in Jersey, in November 2011, he was given a written caution for causing a breach of the peace by fighting.  Thirdly, in March 2012, in Jersey, he was convicted of urinating in a public place and fined £160.  Fourthly, in September 2012, again in Jersey, he was convicted of being drunk and disorderly and fined £200 and of course he has now being convicted of the serious offence of grave and criminal assault.  All of these incidents or convictions are alcohol-related.  He is a binge-drinker at weekends where in his words "he will drink until the bar closes".  Although assessed at a low risk of re-offending both the Social Enquiry Report and the report of Dr Emsley make it clear that alcohol misuse is a serious risk factor.  His record since coming to the Island emphasises that risk.  Furthermore, Dr Emsley makes it clear that drugs cannot be ruled out as a risk factor. 

11.      We have given the matter some considerable consideration, as is clear by the time we have spent outside the Court, but we agree with the Crown that the continued presence of the defendant in Jersey is detrimental to the public good. 

12.      As to the Article 8 family rights, the defendant is single and has a brother here  He has three sisters in the UK and a daughter in Madeira where his mother and step-father lives.  He has told the Immigration Officer that if imprisoned for this offence he would prefer to return to Madeira on his release, although Mr Landick, on his behalf, says that he now wishes to remain in the Island.

13.      Again we agree with the Crown that any hardship suffered by the Defendant and the only member of his family in Jersey, namely his brother, is outweighed by his offending behaviour.  Deportation would not be disproportionate in our view and, notwithstanding Mr Landick's submissions to us, we are therefore going to recommend his deportation.

Authorities

Camacho-v-AG [2007 JLR 462]

European Convention on Human Rights.

Harrison-v-AG [2004] JLR 111.