Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal assault - being drunk and disorderly.

[2016]JRC206

Royal Court

(Samedi)

11 November 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Thomas and Ronge

The Attorney General

-v-

José IIidio Teixeira De Sousa

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

1 count of:	Grave and criminal assault (Count 1).
1 count of:	Being drunk and disorderly (Count 2).

Age:  53.

Plea: Guilty.

Details of Offence:

Count 2:  On 12^th October, 2015, police were called to a public shelter along Victoria Avenue.  On arrival the defendant was found lying on the floor in a pool of liquid, with an empty whiskey bottle next to him.  The defendant was incoherent and unable to sit or stand unaided.  Officers transported him to the shelter.  On arrival the defendant punched out at the officers.  Considering him to be drunk and incapable, officers arrested him.  The defendant was detained until fit for release at 5am the following morning. 

Count 1:  On 3^rd July, 2016, a parish traffic warden was on duty in uniform in Kensington Place in St. Helier.  The victim was in the process of issuing a parking ticket to an illegally parked Volkswagen Golf when the defendant approached him carrying two blue carrier bags, one of which had bottles in it.  The defendant said in Portuguese: "Can I show you something?" 

The defendant pulled out a knife with a 9cm blade, opened it and held it about 15cm from the victim's stomach, with the point of the blade towards him.  The defendant said to the victim in Portuguese:  "If that was my car, I would cut you."  The victim took hold of the defendant's right hand and wrist and managed to close the knife.  The defendant would not let go of the knife so the victim placed him in a restraining hold over the bonnet of the vehicle, and called for police assistance.  The defendant said to him "I am gardener, I can use a knife" or words to that effect.  He also kept saying words to the effect of: "Let me go, I am Portuguese, you are Portuguese."  

The defendant, who smelt heavily of intoxicants and was unsteady on his feet, was arrested on suspicion of committing a grave and criminal assault.  In interview he admitted showing the knife to the victim, but denied opening it.  He also minimised his alcohol intake, both in general, and on the day in question. 

He was assessed as being at high risk of reconviction and as having a "propensity to violence". Alcohol had played a part in his offending over the years. 

Details of Mitigation:

The Crown:  Guilty pleas. 

The Defence:  The offence of drunk and disorderly was minor and could have been dealt with at parish hall level; the defendant has a long-standing alcohol problem; no injury was caused to the officers.  In respect of the grave and criminal assault; co-operation with the police; the defendant was much smaller and frailer than the victim; the victim was not afraid that he would be stabbed; no premeditation when showing the victim the knife; the defendant had apologised. 

Previous Convictions:

The defendant had spent time in both Jersey and Madeira over the years.  He had convictions in Jersey including for failing to stop at a pedestrian crossing, drink driving, driving without insurance, larceny and common assault.  He also had a conviction for aggravated homicide, committed in Madeira in 1992, for which he served nine years in prison before returning to Jersey.  The defendant shot his wife with a rifle, after discovering that she had been having an affair.  He did this in the presence of his son, then aged five, and has had little contact with him since. 

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	1 week's imprisonment, concurrent.

Total: 2 years' imprisonment. 

Forfeiture and destruction of the knife sought.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Court noted that the grave and criminal assault had involved a traffic warden in the course of his duty but considered the offence to be at the lower end of the scale of seriousness. 

Count 1:	12 months' imprisonment.
Count 2:	1 week's imprisonment, consecutive.

Total: 12 months and 1 week's imprisonment. 

Forfeiture and destruction of the knife ordered. 

Recommendation for deportation made. 

Advocate M. H. Temple, Solicitor-General appeared for the Crown

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant, who is 53 years old, stands to be sentenced for one count of being drunk and disorderly and one count of grave and criminal assault.  The two incidents are unconnected save that alcohol featured in both.  The most serious count is obviously the grave and criminal assault.  The facts here are that the defendant, who had been drinking, came across a traffic warden who was on duty and in the process of issuing a parking ticket for a car which did not belong to the defendant.  The defendant appeared to take exception to this and pulled out a knife, opened it with the blade close to the warden's stomach, saying "If that was my car I would cut or slice you".  The warden took hold of him and managed to close the knife and restrain the defendant until the police arrived.  The warden said that he did not know the defendant, and despite the use of the knife, said he was not frightened of being stabbed.  In interview the defendant said it was not personal, but he simply did not like the job the warden was doing.  His intention was to frighten the warden and he could not remember actually opening the knife.  

2.        The defendant has a bad record which includes the following:-

(i)        on 15^th February, 1993, in Funchal he was sentenced for the aggravated homicide of his wife, for which he was sentenced to 14 years and 6 months' imprisonment.  The defendant had discovered that his wife was having an affair but bided his time until their return to Madeira that year when he confronted her with a rifle.  He was drunk and said that he "lost his mind", accidently pulling the trigger.  This took place in the presence of their 5 year old son.  

(ii)       On 8^th March, 2004, in Jersey he was convicted for drink-driving; and

(iii)      on 27^th August, 2013, again in Jersey, he was convicted of common assault on his partner; and

(iv)      again in Jersey on 28^th November, 2014, he was convicted of larceny.  Alcohol played a role in all of these convictions and it would seem that he is alcohol-dependent. 

3.        The defendant is assessed at a high risk of general reconviction, linked to his lack of employment, financial instability and alcohol problems.  There are also concerns that elevate the risk of further domestic abuse. 

4.        The policy of the Court is clear that assaults with a knife will almost inevitably result in a custodial proposal and an aggravating feature here was that this assault was carried out on a traffic warden who was on duty, and like police officers, prison officers and paramedics, wardens are entitled to be protected by the courts. 

5.        However, we agree with the defence that this offence is at the lower end of the scale for such assaults.  The fact is that the warden was not frightened and easily overcame and restrained the defendant.  It was not as serious a case as those to which we have been referred by the Solicitor-General.  The Crown would have sought a sentence of at least 3 years' imprisonment if there had been a trial and conviction and therefore thought a sentence of 2 years' imprisonment for Count 1, and 1 week's imprisonment, concurrent, for Count 2. 

6.        We have taken into account the mitigation put forward by Advocate Grace, essentially the plea of guilty, and the cooperation with the police.  Advocate Grace suggested that the appropriate sentence for the grave and criminal assault is 12 months' imprisonment and we agree.  However, in terms of community service, which she urged upon us, the policy of the Court is clear.  Such an offence, using a knife in public, must be met with a custodial sentence.  We also take the view that the offence of being drunk and disorderly, which was on an entirely separate and earlier occasion, should be met with a consecutive sentence. 

7.        On Count 1 you are sentenced to 12 months' imprisonment, on Count 2 you are sentenced to 1 week's imprisonment, consecutive, which makes a total sentence of 12 months and 1 week's imprisonment. 

8.        We also order the forfeiture and destruction of the knife. 

9.        Turning to the issue of deportation, the test applied by the Court in considering a recommendation is set out in the case of Camacho-v-AG [2007] JLR 462.  Firstly, is the defendant's continued presence in the Island detrimental to the public good?  And if so, secondly, would his deportation be disproportionate, having regard to the relevant convention rights of the defendant and others not before the Court, in particular the right of the defendant and his family to respect for family life under Article 8 of the European Convention on Human Rights 2000. 

10.      The defendant has previous convictions for violence, most notably serving time in Portugal for homicide.  In this case he intentionally pulled out a knife in broad daylight, and put the victim and potentially members of the public at risk.  He has a long standing issue with alcohol, which is a factor in most, if not all, of his offending.  It is, as the Solicitor-General said, difficult to imagine a history which will present a more compelling argument for him to address his alcohol intake.  However, we agree with the Solicitor-General that he appears to maintain a casual attitude to his drinking and minimises his consumption.  Previous orders have had no impact on his behaviour, and he is assessed at a high rate of reconviction. 

11.      We therefore find that the first part of the test is met, that his continued presence in the Island is detrimental; Advocate Grace did not in fact demur from that.  As to the second part of the test the defendant's Article 8 rights, he has a relationship with a 73 year old woman, although the social enquiry report indicates that this has been characterised by a history of his heavy drinking and domestic violence.  He has no contact with his sister, who lives in Jersey, and limited contact with his father who lives in Madeira, and his friends are described as drinkers. 

12.      We find that the defendant's criminal history and the recklessness exhibited in his offending, outweighs any local relationships and, despite what has been said on his behalf by Advocate Grace and on behalf of his partner, we do recommend that he should be deported. 

Authorities

Camacho-v-AG [2007] JLR 462. 

Harrison-v-AG [2004] JCA 046).  

AG-v-Lockhart [2011] JRC 025. 

AG-v-Heard [2012] JRC 132. 

AG-v-Capuano [2013] JRC 084. 

AG-v-Harris [2015] JRC 057. 

AG-v-Da Silva [2016] JRC 046. 

AG-v-Baker [2016] JRC 147. 

European Convention on Human Rights 2000.