Jersey Unreported Judgments

Superior Number Sentencing - grave and criminal assault.

[2016]JRC057

Royal Court

(Samedi)

4 March 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Fisher, Nicolle, Marett-Crosby, Blampied, Sparrow and Thomas

The Attorney General

-v-

Duarte Nascimento Ramos

Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial on 4^th March, 2016, on charges of:

3 counts of:

Grave and criminal assault (Counts 1, 3 and 4).

Age:  30.

Plea: Guilty.

Details of Offence:

The defendant had been married to the victim for 9 years.  Throughout their marriage the defendant was physically and emotional abusive.  He was controlling, jealous and he abused alcohol.  When the couple worked together the defendant would argue with her if she spoke to colleagues.  After starting a new job the defendant would regularly check up on his wife at work and he did not like her speaking to male customers. 

One evening the defendant met the victim at her work when he was drunk.  As they walked home he hit her on the head after quizzing her about her conversation with a male customer at her work.  When they arrived home the defendant kicked and punched the victim to the floor.  Whilst she was on the floor the defendant fetched a knife from the kitchen and held the blade tightly to her neck causing a scratch.  She tried to escape and the defendant held her back placing his hands tightly around her neck, throttling her for a short period of time (Count 1).  She struggled to breathe.  She thought that the defendant was going to kill her when he fetched the knife. 

On another occasion, the defendant was displeased at seeing the victim speaking to a male customer at work.  Later, at home, the defendant had been drinking and he questioned the victim about the conversation.  He then took his boot and hit the victim hard, several times, on the arms and legs causing bruises (Count 3). 

That evening when the victim went to bed she heard the defendant rifling through her coat pockets.  He discovered a lipstick and he asked her why she wanted to wear lipstick.  He then took hold of the victim's right arm and bit her forearm which hurt significantly albeit the skin did not break.  Her arm was red with teeth marks and was a little swollen.  The defendant continued quizzing his wife about the lipstick and then bit her finger leaving a red mark and a cut (Count 4). 

On the first day of the trial the defendant entered a guilty plea to Count 3.  Following an Assize trial he was found guilty of Counts 1 and 3 and acquitted of another count. 

Details of Mitigation:

Late guilty plea in respect of Count 3.  Previous good character.  Good work record.  On the day of sentencing the defendant accepted that he did carry out the assaults as alleged and he expressed remorse. 

Previous Convictions:

None.

Conclusions:

Count 1:	4 years' imprisonment.
Count 3:	15 months' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent.

Total: 4 years' imprisonment. 

Recommendation for deportation sought.

Sentence and Observations of Court:

The court imposed a substantial sentence which reflects the court's policy regarding domestic abuse. 

Count 1:	3½ years' imprisonment.
Count 3	15 months' imprisonment, concurrent.
Count 4:	2 years' imprisonment, concurrent.

Total: 3½ years' imprisonment.

Recommendation for deportation made.

C. M. M. Yates, Esq., Crown Advocate.

Advocate E. L. Wakeling for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for three counts of grave and criminal assault carried out on his wife in their home.  The counts cover two incidents which took place in October 2014 and June 2015 respectively.  The defendant denied the first incident, that is Count 1, and part of the second incident, Count 4, the biting, and was found guilty following an Assize trial.  He was acquitted of a further count (Count 2). 

2.        Of the incidents it is that which took place in 2014 that is the most serious in that it involved the victim being punched and kicked to the floor, having a knife held tightly to her neck, causing a scratch, and after she tried to escape from the flat, being held by the defendant with his hands tightly around her neck, throttling her for a short time.  Although she struggled to breathe, she did not lose consciousness. 

3.        In her evidence to the jury, the victim described a psychically and emotionally abusive relationship in which the defendant, who was often intoxicated, was controlling, jealous and possessive of her.  If she displeased him in any way she would later suffer his wrath.  Even following the trial the defendant has apparently expressed the view to the probation officer that his wife should not have a social life, showing, in the view of the probation officer, a distorted view of marriage. 

4.        The defendant is assessed at a low risk of reconviction because he has no criminal record, has a solid employment record and support from his own family but the risk factors are highly elevated in the context of intimate relationships, particularly in the light of his denial of domestic abuse.  Indeed he told the probation officer that the victim had fabricated these allegations in order to get out of their marriage. 

5.        We have considered the impact of the defendant's conduct upon the victim as set out in her statement.  She says she was signed off work for two months and she has suffered inter alia depression and insomnia.  She has been in fear of retribution from the defendant's friends and family, former customers who knew the defendant, who warned that the victim should enjoy herself while she could as the defendant would kill her on his release from custody.  We also note that when the police attended upon the family home, they found her in tears and visibly shaken. 

6.        Turning to the mitigation, the defendant did plead guilty to Count 3 but, as the Crown say, this was at the very start of the trial which had to continue in relation to Counts 1 and 4 with the victim having to give evidence and be cross-examined.  He is of good character and has a good work record.  Up until now he has continued to deny the offences and to show no remorse but today has changed his position, accepting that he did carry out these assaults as alleged by the victim and expressing remorse through Advocate Wakeling and indicating that he has no interest in any possibly retribution.  In our view that change in his position comes too late in the proceedings for it to carry much weight but we have considered all of the mitigation put forward, and the letters from his sister and daughter and from his employers, in coming to our conclusions. 

7.        The Court has been referred to a number of cases which the Crown accept are not factually similar and to Whelan's Aspects of Sentencing in the Superior Court of Jersey but as has been said on many previous occasions, the facts of previous cases are often very different, both in terms of the nature of the violence and the mitigation that is available, to be of much assistance to the Court.  As the Court of Appeal said in Harrison-v-AG [2004] JLR 111 it can however look at the range of previous sentences and having conducted that exercise, the jurats were divided with three agreeing that allowing for all of the mitigation available to the defendant, 4 years was the appropriate total sentence, and three finding that 3½ years was the appropriate total sentence.  Using my casting vote I agree with the latter, namely that 3½ years is the appropriate sentence taking into account the totality of the offending here, though we will sentence on the basis put forward by the Crown, namely that Counts 3 and 4 should be concurrent to each other and concurrent to Count 1. 

8.        This is a substantial sentence which rightly reflects the policy of the Court in relation to domestic violence and the use of a knife, a knife which, in this case, the defendant went to the kitchen to fetch in order to use it in that manner described, a manner leading the victim to justifiably fear that she was in danger of losing her life.  We reiterate what the Court said in AG-v-Horn [2010] JRC 104:-

"First of all the message is that knife crime will be dealt with severely even though no injury is caused, and secondly, domestic violence is similarly a crime which will be treated severely.  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."

9.        In relation to Count 4, an allegation of biting, here the Court felt that the sentence of 3 years sought by the Crownwas too high.  In AG-v-Sampson [2003] JRC 146 3 years was recommended as a minimum starting point for an offence in which part of the victim's ear was bitten off.  The Crown concedes that both AG-v-Sampson and AG-v-Murphy 1994/199, another case in which part of the victim's ear was bitten off, are more serious than the case before us.  But having that, this is still a serious offence and we agree with what the Crown said, namely that what the defendant did here was both impulsive and particularly animalistic which justifies a lengthy custodial sentence. 

10.      On Count 1 you are sentenced to 3 years 6 months' imprisonment.  On Count 3 you are sentenced to 15 months' imprisonment, concurrent to Count 1.  On Count 4 you are sentenced to 2 years' imprisonment, concurrent to Count 3 and to Count 1.  That makes a total sentence of 3 years and 6 months' imprisonment. 

We now turn to the issue of deportation.  Applying the first part of the test in Camacho-v-AG [2007] JLR 462, we agree with the Crown that despite the defendant's work record and his contribution to the Island in that respect, his continued presence in the Island is detrimental.  As the Crown put it at paragraph 32 of its conclusions:-

"The Defendant committed three grave and criminal assaults on his wife.  He is assessed as being at low risk of general reconviction within 12 months.  However, the level of risk is elevated by his consumption of alcohol and his history of domestic violence.  He is assessed as being a risk for future partners.  The defendant has continued to deny the offences he was convicted of at trial and has failed to express any remorse [until the very day of sentencing]."

We also note that the Probation Department advises that the risk of harm to the victim through retribution cannot be ruled out. 

11.      Turning to the second part of the test, we have taken the following factors into account:-

(i)        The defendant has lived in Jersey only since 2010

(ii)       In Jersey he has his wife, who is now in a new relationship, and as we understand it in the process of divorcing him; a marriage which he accepts is now over.  He also has one sister, a nephew, but there is no evidence of any dependency on their part on the defendant.

(iii)      In Madeira the defendant has his parents and his other five siblings.  He is in regular contact with them and they are all supportive of him.  Most importantly, he has his only daughter living in Madeira with his parents. 

(iv)      He informed the probation officer that he and his wife came here in order to save money to buy a property back in Madeira, and

(v)       He has informed the probation officer that his wish to stay here is solely that he can earn more money for the benefit of his daughter than he might be able to do in Madeira. 

12.      Taking all of this into account, we have concluded that the interference in the defendant's family life and that of his daughter and wider family, limited as it is, is insufficient to prevail against the interests of the community and that in the light of the serious nature of his offences, deportation would be proportionate.  We are therefore recommending deportation. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

AG-v-Horn [2010] JRC 104.

AG-v-Sampson [2003] JRC 146.

AG-v-Murphy 1994/199.

Camacho-v-AG [2007] JLR 462.

Harrison v AG [2004] JLR 111.

AG v Crabtree [2014] JRC 165A.

AG v R [2013] JRC 162.

AG v Thomas [2012] JRC 123.

AG v Lawlor [2009] JRC 150.

AG's Reference No 60 of 1996 (1997) 2 Cr App R (s) 198.