Jersey Unreported Judgments

[2007]JRC086

ROYAL COURT

(Samedi Division)

23^rd April 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Tibbo, Bullen, Clapham, Le Cornu, Newcombe and Liddiard.

The Attorney General

-v-

Antonio Joao Fernandes Correia

Sentencing by the Superior Number of the Royal Court, on the following:

1 count of:	Rape. (Count 1).
1 count of:	Indecent Assault. (Count 2).
1 count of:	Grave and Criminal Assault.  (Count 3).

Age:  33

Plea: Guilty (Count 1).  No evidence offered (Counts 2 and 3).

Details of Offence:

Defendant, of previous good character, attacked and raped a 27 year old woman in Minden Place car park in the early hours of the morning.  DNA evidence linked him indisputably to the attack and his victim identified him in a Promat procedure.  The rape was attended by physical violence in the form of punches to her head, face and chest, squeezing the victim's throat to stop her breathing and raising the alarm and by sexual indignities including digital penetration, holding his penis in front of her face and biting her nipples.  The defendant also wrestled her mobile telephone from her and threw it away to prevent her summoning help.  The Defendant was a complete stranger to the victim, and the victim could have had no idea how far he was prepared to go with violence, including serious injury or killing her.  Her injuries were, however, relatively minor and she showed unusual strength of character in the way she had coped with the incident since it happened.  There was no suggestion that she had suffered serious psychological damage.  Though the Defendant initially pleaded guilty, he sought unsuccessfully to vacate his plea.  The victim was made aware of the possibility that there might be a trial.  The Court held that the attempt to vacate his plea removed to a very substantial degree his credit, although some small residual credit remained from the fact that the victim had nonetheless been saved the ordeal of giving evidence.

Details of Mitigation:

Little, if any, mitigation was available from his guilty plea since he had attempted to resile from it.  His previous good character was of limited value only.

Previous Convictions:

None.

Conclusions:

Adopted a starting point of 5 years' imprisonment and added 3 years to reflect the aggravating features of additional violence and sexual indignities.  8 years' imprisonment.  Recommendation for deportation.  

Sentence and Observations of Court:

Conclusions granted.

M. T. Jowitt, Esq., Crown Advocate.

Advocate J. S. Dickinson for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This must have been a terrifying occasion for the victim.  As she made her way home, she was confronted by a stranger who proceeded to rape her and to use violence on her.  It must be every woman's nightmare to be attacked by a stranger in this way.  The fact that it is a stranger means that she has no idea how far the assailant is prepared to go in using violence, as was the case here.

2.        We agree with the Crown that there were two aggravating features.  First, the defendant used violence beyond that necessary to commit the rape.  He struck her in the head with his fist, he hit her repeatedly about the face and chest, he placed his hand around her throat and squeezed hard so that she could not breathe, and when she tried to call for help on her mobile phone he grabbed it and threw it away.  Secondly he subjected her to additional indignities beyond the rape.  He bit her breasts, he held his penis in front of her face and he penetrated her digitally.

3.        We have read the impact statement from the victim, and we would like to express our admiration of her fortitude and her strength of character in coming to terms with this ordeal. 

4.        Now this Court applies the principles R -v- Billam [1986] 8 Cr. App. R (s) and R -v- Milberry [2002] EWCA Crim 2891 and we agree that the aggravating features we have referred to take this well beyond the starting point of 5 years referred to in those cases.  A starting point, is of course, used in those cases in a very different sense to that in which it is used in Jersey drug cases. 

5.        We must balance against the aggravating features, the mitigating features.  In many cases the most powerful of these is a guilty plea, because it spares the victim the ordeal of having to relive her experience in court.  You did originally plead guilty, but then you sought to change your plea to not guilty.  The victim was aware of that and would, therefore, have had the worry that she might well have to give evidence in court.

6.        It was only the Court's decision which prevented you from changing your plea.  We agree, therefore, that you have lost most of the credit you would otherwise have received for your guilty plea, but unlike the Crown we think there is still some residual benefit and we think a modest allowance should be given for that guilty plea because the fact remains that the victim has not had to give evidence.

7.        We take into account the fact that you have no previous convictions.  We have also carefully considered the background report, the Psychiatric Reports, and the Psychological Report, handed up today.  We do accept that, following the shooting incident, your memory and other matters have been affected, and this may well explain your inability to recall exactly what happened.

8.        Our task is to take into account the aggravating features and then make allowance for the mitigating features and come to what we consider is the right sentence taken in the round.

9.        Even making a modest allowance for the guilty plea we think the sentence of 8 years for this particular rape is correct, and therefore that is the sentence we impose.

10.      As to deportation, we have no doubt that your continued presence in the Island is detrimental.  This was a very serious offence and you are stated to be at moderate risk of re-offending.  As to the effect on innocent persons not before the Court, you had only been here for one year before the offence took place apart from a period of six months some ten years ago.  You have a brother and some cousins here, but you have a sister in Madeira, and, balancing the detriment against the effect on others, we have no hesitation in saying that the balance is in favour of recommending deportation, and we make that recommendation.

Authorities

R -v- Billam [1986] 8 Cr. App. R (s).

R -v- Milberry [2002] EWCA Crim 2891.