Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault.

[2016]JRC020

Royal Court

(Samedi)

22 January 2016

Before     :

Sir Michael Birt, Commissioner, and Jurats Nicolle and Thomas

The Attorney General

-v-

Maria Ermelinda Abreu De Andrade

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

3 counts of:

Grave and criminal assault (Counts 1, 2 and 3).

Age:  42 but 31 at time of offending.

Plea: Guilty.

Details of Offence:

In August 2005 the defendant visited the Portuguese Club in St Helier, where she met her former boyfriend.  Due to his behaviour, the boyfriend was removed from the club by a member of staff.  He re-entered and so the manager of the club asked him to leave.  The boyfriend ignored the manager, who took hold of the boyfriend's arm to lead him out.  The defendant, who was intoxicated, then struck the manager over the head using a beer bottle.  The bottle smashed, and flying shards of glass hit two women standing nearby. 

The manager suffered swelling and a very superficial laceration to his scalp.  The first female victim suffered two 2.5 cm lacerations to her abdomen.  The second had four scratches to her left cheek, which bled heavily. 

In August 2005, the defendant was charged with two grave and criminal assaults (the third victim being then unwilling to support the prosecution).  She indicated guilty pleas in the Magistrate's Court and was committed to the Royal Court.  The day before she was due to be indicted, the defendant absconded from the Island.  Her arrest was ordered. 

It subsequently transpired that the defendant had gone to Madeira, where she remained for about seven years.  She then moved to London.  Her whereabouts became known to the States of Jersey Police in November 2015.  She was brought back to Jersey on a warrant and indicted on three counts of grave and criminal assault. 

Details of Mitigation:

The Crown: Guilty pleas on 2015 Indictment (the Crown submitted that credit for the early pleas in Counts 1 & 2 was lost due to the subsequent absconding), no convictions since the offences on the Indictment, mother of two minor children (one of whom was born after the offences were committed), low risk of reoffending. 

Previous Convictions:

Five offences, including two assaults. 

Conclusions:

The Crown submitted that the defendant's mitigation and the circumstances of the case, taken together, would justify the Court in its discretion, suspending any sentence of imprisonment. 

No recommendation for deportation was sought. 

Count 1:	18 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.

Total: 18 months' imprisonment. 

Sentence and Observations of Court:

The Court's observations are as follows:  The Court said the normal consequence for such an offence is prison.  The Court would only depart from this in an exceptional case.  This was an exceptional case as though the offence had not changed, the offender had changed entirely in the past eleven years.  She was now a different person and was a good mother who had put offending behind her.  The Community Service is ordered to be undertaken in England.  There will be regular reports to the Jersey Probation Service.  The defendant was told that if she did not comply with the order then the Attorney General had indicated to the Court in her presence that she would issue a warrant to have her brought back to Jersey and re-sentenced, in all likelihood to a term of imprisonment. 

Count 1:	240 hours' Community Service Order, equivalent to 18 months' imprisonment.
Count 2:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.
Count 3:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, concurrent.

Total: 240 hours' Community Service Order, equivalent to 18 months' imprisonment, to be carried out in the UK. 

R. J. MacRae, Esq., Attorney General.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE commissioner:

1.        Mrs de Andrade, back in August 2015 when the manager of the nightclub, with good reason, decided to evict your then boyfriend, you hit him on the head from behind with a beer bottle, which smashed as a result.  Pieces of glass struck two women nearby, one in her stomach and the other on her face.  Luckily the injuries in all three cases were minor.  You were due to appear before this Court on 25^th November, 2005, but the day before, you fled with your 10-month old daughter.  You went back to Madeira for some 7 years and since then you have been living in London with your two children.  You were arrested and brought back to the Island when the police in Jersey discovered that you were living in London. 

2.        Advocate Bell has put forward mitigation.  He has referred to your guilty plea, to your remorse and we have read your letter and accept that it is genuine.  We have also been referred to the information in the probation report which shows that you have changed.  Before this offence you had a number of public order offences; you were clearly drinking too much and got into trouble when you were drinking.  The report seems to show that all that has changed and you are now a good mother to your two children and we have read the references. 

3.        The normal consequence of an offence like this is that the offender goes to prison.  That is because of the Court's policy on violence and in relation to attacks with a bottle there can so easily be very serious injuries.  Indeed, in this case some of the glass hit a woman in the face, but it might have hit her in the eye.  So the question for us is whether there is anything exceptional about this case which enables us not to send you to prison.  We have been referred to the case of Scobie-v-AG [2003] JCA 009 which deals with where people abscond and we would refer in particular to a quotation in that case from the earlier case of R-v-Bird and what was said is as follows:-

"Of course there should be no encouragement to defendants to abscond in the hope that their sentences will thereby be reduced.  On the contrary, absconding will normally add to the overall sentence.  But there may be exceptional cases, of which this is one, where the sentencing court ought not to shut its eyes to subsequent events.  It was the duty of the court to sentence this man for this offence.  The offence had not changed by the passage of time, but the man had."

4.        We think that this is one of those exceptional cases.  Applying that to this case the offence has not changed but the woman has.  We think from the evidence before us that you are not the same woman as you were in 2005 and the change since then has been entirely for the better.  You have committed no offences and indeed appear to be leading a blameless life.  Furthermore you have served the equivalent of 2½ months' imprisonment whilst on remand and have been away from your two daughters during that time.  Putting all these matters together, we can proceed by a non-custodial sentence.  We have considered the choice between a suspended sentence and community service but we think it is important that you feel and undergo the punishment for what you did; so that will involve carrying out work under a Community Service Order. 

5.        The sentence of the Court is that on Count 1 there is 240 hours' Community Service Order, on Count 2; 180 hours' Community Service Order, Count 3; 180 hours' Community Service Order, making a total of 240 hours' work because they are all concurrent, which is the equivalent of 18 months' imprisonment. 

6.        I will just explain the consequences.  This community service will be undertaken by you in England.  But the Probation Service here will be keeping in very close touch with the English service.  They will be asking for regular reports.  If you do not carry out the community service exactly as directed then that will be reported here and the Attorney General has indicated he would issue a warrant to bring you back and if you are brought back then we would almost certainly have to send you to prison.  So we urge that you carry out the work that you have been ordered to do to perfection. 

Authorities

Scobie-v-AG [2003] JCA 009.

R-v-Bird.

Harrison v AG [2004] JLR 111.

Camacho v AG [2007] JLR 462.

AG v Conway [2008] JRC 060.

AG v Hickling [2008] JRC 038.

AG v Burke [2008] JRC 143.

Fowler v AG [2007] JRC 044.