Jersey Unreported Judgments

[2007]JRC185

ROYAL COURT

(Samedi Division)

28^th September 2007

Before     :

Sir Philip Bailhache, Kt. Bailiff, and Jurats Le Brocq and Allo.

The Attorney General

-v-

André Nelson Rodrigues

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:  24.

Plea: Guilty.

Details of Offence:

During the early hours of the 11^th March, 2007, the accused threw a full pint glass from 3-5 metres in St James Wine Bar striking his victim above the right eye.  The impact caused a 5cm cut, together with swelling and bruising.  The cut required 6 stitches.  The attack was preceded by considerable provocation towards the accused by the victim including verbal aggression and a head butt.

Details of Mitigation:

Guilty plea; remorse; provocation; previous good character.

Previous Convictions:

None.

Conclusions:

Count 1:

15 months' imprisonment.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Defendant was a young man from Madeira facing one Count of grave and criminal assault by throwing a glass at his victim's face.  This had caused injuries just above the eye requiring 6 stitches.  It was not in doubt there had been considerable provocation by the victim including a head butt.

Whilst the Court used the term "victim" to describe the man hit by the glass it seemed to the Court this was something of a misnomer.  The circumstances preceding the throw of the glass led the Court to conclude a defence of self-defence might well have been advanced.  It was to the accused's great credit he accepted he had done wrong by momentarily losing self control.  A guilty plea had been entered.

In mitigation the accused was a man of good character with no previous convictions.  He had arrived in Jersey in February 2007, and had been in work since.  His employer spoke well of him and stated he had good prospects.

The accused had immediately admitted what he had done.  There had been no hesitation.  He had since expressed remorse and had chosen not to enter licensed premises.

The Court had seen a number of references and was particularly impressed with the statement of Mr Macato who had been present in Court.  The Court had found this extremely helpful.

The background papers revealed an appalling and deprived upbringing.  Apart from the present incident the accused's time in Jersey had enabled him to make great progress.

The Crown Advocate had been right to refer to this offence as falling at the bottom end of the scale.  In the Court's view it fell right at the bottom.  A non-custodial sentence was justified.  A recommendation for deportation would not be appropriate.

The Court has a firm policy to deport foreign nationals who have committed serious offences.  Here, however, it could not be said that the accused's continued presence in Jersey would be detrimental to the community.

The Court expressed surprise that proceedings had not been taken against the victim in respect of offences he had either admitted or in respect of which there was strong evidence.  The mere fact a person was a victim did not mean he should not be accountable for his actions.

This was another case where the offence committed by the accused and all that had happened, occurred because individuals had been drunk.  It was a breach of the Licensing (Jersey) Law 1974 to be drunk on licensed premises.  The Court would ask the Attorney General to make enquiries of the Police as to why apparent breaches of the Licensing Law in the present case had not been prosecuted.

The instant offence was serious and had to be punished.  There would be no prison sentence and the Court hoped the accused would never again put himself in a position where this kind of incident happened.  The sentence would be 120 hours' Community Service - an equivalent to 6 months' imprisonment.

Count 1:

120 hours' Community Service Order

No recommendation for deportation.

A. J. Belhomme, Esq., Crown Advocate.

Advocate D. J. Hopwood for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Defendant is a young man from Madeira who is to be sentenced on one Count of grave and criminal assault by throwing a glass at the face of the victim, causing injuries to the victim's face just above the eye, which required 6 stitches.  There is no doubt that there was considerable provocation by the victim, including a head butt to the Defendant's head.

2.        We have used the term "victim" in relation to the man who was hit by the glass, but it seems to us to be something of a misnomer.  The circumstances preceding the throwing of the glass lead us to the conclusion, as submitted by Defence Counsel, that a defence of self-defence might well have been advanced in this case.  It is to the Defendant's great credit that he accepted that he had done wrong by momentarily losing his self-control and that he pleaded guilty to the Indictment.

3.        In mitigation, the Defendant is a man of good character with no previous convictions.  He arrived in Jersey in February 2007 and has been in work since that time.  His employer speaks well of him and states that he has good prospects.  The Defendant admitted immediately what he had done, without any hesitation.  Since this incident he has expressed remorse and has kept away from licensed premises.  A number of references have been placed before us and we were particularly impressed by the statement of Mr Macato, who attended in Court, which we found extremely helpful.  The background papers make it clear that the Defendant has had an appalling and deprived upbringing and that, apart from the incident which brings him before the Court, his time in Jersey has enabled him to make great progress. 

4.        The Crown Advocate was right to say that this offence is at the bottom end of the scale, indeed we think that it is right at the bottom.  The just disposal in all the circumstances is a non-custodial penalty.  In the light of this conclusion we do not think that a recommendation for deportation is appropriate.  The Court does have a firm policy of recommending the deportation of foreign nationals who commit serious offences, but we do not think that in this case it can truly be said that the Defendant's presence is detrimental to the interests of the community.

5.        It only remains for us to express our surprise that proceedings were not taken against the victim in this case, in relation to the criminal offences, either admitted or of which there was strong evidence.  The mere fact that a person is the victim of an offence does not mean that he should not be accountable for offences that he himself has committed.

6.        Finally this is another case where the offence committed by the Defendant, and all that happened in St James Wine Bar, occurred because individuals were drunk.  It is a breach of the Licensing (Jersey) Law 1974 to permit drunkenness on licensed premises. We request the Attorney General to make enquiries of the Police as to why these, apparent, breaches of the Licensing Law were not prosecuted.

7.        Mr Rodrigues you committed a serious offence on that evening and we have to punish you for that offence.  We are not going to send you to prison for all the reasons which we have given.  We hope that you will never again get into a position where this kind of incident can happen.  We are going to order you to do 120 hours' Community Service and we state that the equivalent period of imprisonment, if you do not complete that Community Service, is 6 months' imprisonment.

8.        Advocate Hopwood the Court is very grateful to you for your very persuasive and helpful submissions.

Authorities

Licensing (Jersey) Law 1974.