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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> The Attorney General v Joao Pedro Vieira ([2021] JRC 293 (19 November 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_293.html Cite as: [2021] JRC 293 |
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Crill, Ramsden, Christensen, Austin-Vautier and Hughes |
The Attorney General
-v-
Joao Pedro Vieira
M. R. Maletroit Esq., Crown Advocate.
Advocate L. Sette for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 8th November 2021 we sentenced the Defendant in this case to a total of six years imprisonment. We reserved our reasons for so doing and now provide those reasons.
2. The Defendant faced three indictments and this judgment is principally concerned with the first indictment which charged the Defendant with an offence of rape committed on 30th August 2020.
3. The Defendant and the victim were known to each other as friends and work colleagues. At the time of the offence the Defendant was 25 and the victim was 30. On 29th August 2020, the victim, the Defendant and another went for drinks in St Helier and, at the end of the evening, the victim invited the Defendant to come to her home address where she resides with her mother and young son. They had come back to watch television. The victim changed into her night clothes with her underwear underneath. She permitted the Defendant to watch television with her in her bedroom. They ate a meal together. The victim fell asleep whilst watching television and woke up at some point in the night to find the Defendant raping her, he having removed her pyjama bottoms and underwear. She pulled herself away from the Defendant and pretended she was still asleep. The Defendant was not, she thought, wearing a condom and she did not think that he had ejaculated. At the time, the Defendant had been, as he told the police subsequently, drinking heavily and had drunk 12 Jägerbombs and 12 beers.
4. When morning came, the victim told the Defendant to leave as she needed to get ready for work. Over the subsequent days there were exchanges of messages using a social media platform. Initially, the Defendant appeared to have denied intercourse in those exchanges, indeed he said "I swear for my sister's kids I haven't done nothing nasty".
5. On 1st September 2020 the victim told a friend that she had been raped. That friend contacted the police who then contacted the victim.
6. On 2nd September 2020, there was a further exchange of messages between the victim and the Defendant in which the victim expressed her anger at what the Defendant had done. She said "I can't get of my mind that you can't even be honest with me, I woke up to you with your dick in me. You didn't even have the decency to say I'm sorry I fucked up".
7. In a subsequent exchange she expressly said that she had been raped by the Defendant. He replied "Fuck man. Do whatever you need to ... I deser it". The victim said "I trusted you, you know how upset I was about [a third party was named] and you thought I know she's upset so I will pretend to be there for her then rape her why she's sleeping".
8. On 6th September 2020, the Defendant presented himself to Police Headquarters to say that he wanted to report a rape and identifying himself as the person responsible. In interview, he said that although he only went to the victim's address to watch television, while she was asleep he had removed her underwear and "I did what I did ... and then I realised, stop it". He said the rape lasted about three minutes. He agreed that he had not been wearing a condom and accepted that the victim had not encouraged him in any way.
9. When the Defendant appeared before the Magistrate's Court on 11th March 2021 he did not enter a plea and jurisdiction was declined. When he was indicted on 21st May 2021, which was his first opportunity in the Royal Court to plead guilty to the offence, the Defendant entered a not guilty plea to the allegation of rape. This plea was maintained at a plea and directions hearing on 23rd June 2021 by which time the Defendant was unrepresented (he was represented when he entered a not guilty plea on indictment). On 23rd July 2021 the Defendant, who by now had instructed a new firm of advocates, vacated his not guilty plea and entered a guilty plea. Accordingly, the trial date, fixed for 1st November 2021, was vacated. On entering his plea, the Defendant was remanded in custody pending sentence.
10. A report prepared by the Probation Service indicated the Defendant was a moderate drinker, although he had a previous offence for alcohol related offending in 2017 and accepted experimenting with cannabis, LSD and MDMA in his teenage years, and more recently smoked cannabis. His only previous conviction was an offence of malicious damage in 2017 for which he was bound over. There were Parish Hall appearances in 2017 for drunk and disorderly and causing a breach of the peace by fighting. The Defendant had no similar previous convictions. The Probation Service report said that the Defendant felt intense guilt and shame for what he had done and wished to apologise to the victim. The Defendant elected to enter a not guilty plea in order to ensure that he was able to spend time with his mother who was visiting the Island at the time.
11. The Court was assisted by a psychological report from a consultant clinical psychologist Dr Jamie Connor. Dr Connor says that the victim in this case has suffered severe psychological harm as a consequence of the offence. The victim trusted the Defendant. He had been to her home before to watch films. Her sleep and life at work have been affected. When assessed a year after the offence in late September 2021, she was found to be experiencing a high level of intrusion and avoidance symptoms and she continues to suffer from post-traumatic stress disorder symptomology. She does not have a previous history that pre-disposes her to a severe and enduring mental disorder. Psychological treatment to enable her to recover to sub-clinical levels is recommended and she is currently receiving therapy which she regards as effective and will continue.
12. In her personal statement, she said that since the incident she has experienced a range of emotions and it is "very difficult to convey exactly what this has been like". The Defendant was someone who was supposed to be a friend of hers and whom she had supported during difficult times of his own. The assault upon her was totally unexpected; "He raped me, and then he left me on my own to decide how to deal with this and even tried to make a joke of this, as if it never happened. I hate him for what he did". She was provided with some relief when she heard the Defendant had gone to the police station but she said "Everything changed again, because when he went to the Royal Court for the first time, he changed his plea to Not Guilty". This news left her "devastated". She lost confidence and believed that she was going to face a trial and did not know how to cope. Since then, she continued to struggle with what had happened to her and was left feeling angry and depressed. The stress had caused her hair to start to fall out and the skin on her face had become sore and painful. The counselling that she had arranged through Jersey Action Against Rape had helped her and she is attending sessions on a weekly basis and says "Without this, I would be in a worse position".
13. The victim said she has tried to carry on with her life as it was before the rape but has found it difficult. She said "I am so fed up hearing some people saying that I should move on and get on with things. They have no idea. They don't get it and it really isn't as simple as that."
14. She is concerned about the amount of time that she has had to take off work owing to depression and panic attacks at work. This has affected her pay. She asked the Court to consider granting a restraining order against the Defendant due to the nature of the offence, the long-term effect on her and her family and for the need for her to feel as safe as possible in the future.
15. There are no sentencing guidelines in Jersey for offences of rape or indeed other sexual offences although the Court has had regard to the 2002 decision of the English Court of Appeal in Millberry -v- R [2002] EWCA Crim 2891 which has been "applied in Jersey from time to time in the past" (paragraph 19 of the judgment of the Royal Court in AG -v- Dobrin and others [2019] JRC 097).
16. In this case, the Crown initially advanced conclusions by reference to Millberry -v- R. This case is no longer followed in England and Wales and indeed the decision in Millberry itself, as is clear from the first paragraph of the judgment, was a response to recommendations from the English Sentencing Advisory Panel and advice that had been given by that Panel. The Crown's conclusions indicated that the factors that might increase or reduce sentence according to the decision in Millberry are not consistent with the factors relevant to assessing culpability, harm, aggravation and mitigation as currently listed by the Sentencing Council Guidelines of England and Wales. These Guidelines, when considering such factors, have frequently been adopted by the Royal Court over the past five years or so. Accordingly, when this first came before the Court on 1st November 2021, the Court expressed doubt about the utility of continuing reference to the case of Millberry, both because of its inconsistency with analysis of aggravating and mitigating factors and because reference to Millberry in respect of identifying starting points for the calculation of the sentence to be imposed is reflective of an approach to sentencing in England and Wales which has now been superseded.
17. As to the first consideration, the Court noted from the only recent Court of Appeal decision in this area, namely K -v- AG and AG -v-F [2016] JCA 219, Bailhache JA, giving the decision of the Court said, at paragraph 27:
18. As to 27(ii), we agree that the Sentencing Council Guidelines do provide a convincing rationale for the assessment of seriousness of the offending which can be and has often been adopted in Jersey. Accordingly, reference to Millberry in this regard is unhelpful and unnecessary. In this case, the aggravating features, which are present in and identified by the Sentencing Council Guidelines, include that the offence took place in the victim's own home, the place where she was entitled to feel safe, and that the Defendant was intoxicated through alcohol. Neither matter is identified as aggravating features in Millberry. Furthermore, little weight to the psychological impact on the victim is given in Millberry which is perhaps a reflection, as the Defence Advocate observed in this case, of the fact that "the understanding of the psychological impact of these offences has clearly advanced since the decision was reached in Millberry".
19. Further, as to paragraph 27(v) of the Court of Appeal's decision in K -v- AG and AG -v- F the Jurats in this case unanimously agreed that there was no reason in principle why it should be thought right for Jersey to impose lower sentences for an offence of this kind than would have been imposed in England and Wales. Accordingly, the decision in Millberry is, in our view, no longer of relevance to the Court in sentencing in sex cases and the Court is unlikely to derive assistance from reference to it.
20. As to sentences for sexual offences generally, in 2016 the Royal Court in AG -v- K [2016] JRC 158, considered and accepted an application by the Attorney General, in the case of a child who was 7 and 9 years when she was subjected to extremely serious sexual assaults by the defendant, to impose a sentence that was higher than what might have been expected were the Court to apply the then existing level of sentence suggested by Jersey case law. Having reviewed the relevant authorities, the Court considered whether or not the Royal Court should adjust sentencing levels for sexual offences having regard to the current sentencing levels in England and Wales. Commissioner Birt said:
21. We agree with and adopt the approach of the Royal Court in AG -v- K. This approach was reviewed by the Court of Appeal in K -v- AG and AG -v- F. We have already considered paragraph 27 of the judgment of the Court of Appeal at paragraph 16 above. In the Court of Appeal in K -v- AG Bailhache JA said at paragraph 32:
22. The Court of Appeal went on to say at paragraph 39:
23. We adopt and agree with this observation of the Court of Appeal. Finally, there were two other references in the judgment of the Court of Appeal which are appropriate to recite for the purpose of this judgment as they are relevant to the Court's decision. First, in respect of the contention (repeated on behalf of the Defendant in this case) that he had an expectation (albeit for a brief period after he received the Crown's conclusions) that he might be sentenced to a shorter sentence than that which the Court ultimately imposed, the Court in K -v- AG said this:
24. In the final paragraph of the judgment, the Court said:
25. The decision of K at first instance and the subsequent signal of the Court of Appeal in the same case was accepted by the courts of Jersey as an indication that in respect of sexual offences committed against children (i.e. persons who were under 16 at the time of the offence) there should be an upward review of sentences imposed. This has occurred and it is now been recognised that reference to cases decided prior to 2016 involving offences committed against children are now of little utility to this Court when passing sentence. In AG -v- Jordan [2019] JRC 081 Commissioner Clyde-Smith, giving the judgment of the Royal Court accepted that "The sentencing landscape has changed since the Court of Appeal decision in AG -v- K and F ..."
26. At paragraph 17 the Commissioner said this:
27. Notwithstanding the new landscape for sentencing offenders who have committed sexual offences against children, there have been decisions involving sexual offences against adults where the Court has been persuaded that it is appropriate to consider the approach in Millberry. Millberry has been referred to as of assistance in a number of cases including: AG -v- C [2019] JRC 074; AG -v- Dobrin [2019] JRC 097 (where Millberry was not followed); AG -v- Kean [2019] JRC 155; AG -v- B [2020] JRC 110 and AG -v- Fernandes [2021] JRC 049.
28. In our view there is no reason why the sentencing policy that the Royal Court has adopted in cases where a child is a victim of a sexual offence should not extend to adults. Indeed, logically the same approach should apply to all cases where the defendant is convicted of a sexual offence. In our view, those sentences should not be significantly lower than those imposed in England and Wales.
29. This does not mean that adoption of the English guidelines as a whole would be appropriate. Indeed, in respect of offences against child victims, the Jersey courts have already begun to build up a body of case law which makes reference to the English guidelines in terms of the sentence that would actually be imposed in England and Wales unnecessary in many cases. However, in order for the courts of Jersey to understand the extent to which, on particular facts, a sentence proposed may differ from that which would be passed in England and Wales, it will inevitably be necessary to have regard to the sentence applicable in England and Wales in accordance with the Guidelines.
30. That is not a difficult task or an inappropriate one as such a sentence will not be binding upon the Jurats but will, particularly in the case of rape, be a matter which they are likely to take into account when determining the appropriate starting point. Indeed, from time to time, it will be necessary to do so bearing in mind that we have determined that it would not be appropriate for sentences for sexual offences to generally be lower than those that are imposed in England and Wales.
31. Naturally, there may be particular reasons warranting the court adopting sentences for a particular sort of case which are lower or higher than those imposed in England and Wales. An example of this is that, following the case of AG -v- Godson and Crowley [2019] JRC 091, sentences imposed in Jersey for offences involving indecent images of children are significantly higher than those imposed for equivalent offences in England and Wales in most cases.
32. Accordingly, we invited the parties to provide submissions as to the sentence that would be suggested by an application of the Sentencing Council Guidelines for rape. Both parties were agreed that in view of the harm caused to the victim in this case, namely "severe psychological harm" this was a category 2B case, which implies a range of sentences of between 7 and 9 years with a starting point of 8 years imprisonment, prior to considering aggravating factors and any mitigating factors. In respect of aggravating factors, the Crown identified three. First, the specific targeting of a particularly vulnerable victim - the victim vulnerable because she was asleep. Secondly, the location of the offence - the victim's home where she was entitled to feel safe. Thirdly, the fact that the Defendant committed the offence whilst under the influence of alcohol - he was very drunk.
33. The Crown identified the appropriate sentence under the Guidelines as 8 years and 3 months imprisonment taking into account aggravating and mitigating factors but not the guilty plea. The defence said that the appropriate sentence suggested by the Guidelines ought also to reflect the Defendant's absence of relevant convictions (a factor to which we hold that little weight should be given) and, more importantly, his remorse. It was argued that those factors when taken into account suggest a sentence, under the Guidelines, of 7½ years imprisonment. Both Crown and defence agreed that owing to the Defendant's failure to enter a guilty plea at the first opportunity, the reduction in sentence for a guilty plea should be 25% in this case. We agree. The Crown say that an application of the English guidelines in these circumstances would lead to a sentence of 6 years and 2 months imprisonment. (If the starting points in Millberry -v- R were adopted, then the Crown say the appropriate sentence would be 4 years imprisonment.) The defence submit that application of the Guidelines, depending upon the extent of the mitigation allowed for a defendant's guilty plea, results in a sentence of between 5 and 5½ years imprisonment.
34. We have considered the appropriate sentence for this case, having regard to the circumstances of this offence as set out above. We have had regard to the Sentencing Council Guidelines as we regard it proper to do so on the facts of this case. The starting point is 7½ years imprisonment.
35. The discount for guilty plea of 25% reduces the sentence to 5 years 7½ months imprisonment. We were impressed by what we regarded as a genuine expression of remorse by the Defendant in a letter that was read to the Court and noted by the probation officer. This is the principal aspect of personal mitigation although we also took into account the contents of the psychiatric report and the other letters that were provided to us. In those circumstances, the sentence imposed for the offence of rape is 5 years and 3 months imprisonment.
36. In conclusion, the Jurats decided that there was no discernible or cogent reason to review upwards sentences for sexual offences committed against children (which began in 2016) but not to do the same in the case of sexual offences committed against adults. We could identify no reason why the offence of rape should attract a materially lower sentence in Jersey than it would attract in England and Wales, notwithstanding the different sentencing regimes in both jurisdictions. Nor could the Court identify any reason why the severe psychological harm suffered by the victim in this case would have less significance in assessing the appropriate sentence in Jersey than it would in England.
37. The English guidelines have no direct application in Jersey and the Court's task must always be to settle on the sentence which is appropriate, but there is and can be no objection in principle to having regard to the contents of the Guidelines in terms of their effect on sentence.
38. Indeed, Millberry (which was often regarded as relevant hitherto) was no more than an English guideline authority for a particular period. It is certainly open to the Court to have regard to a sentencing regime for sexual offences in England on a comparative basis. That is not to say that there may not be other regimes to which the courts of Jersey could not have regard. But the Sexual Offences (Jersey) Law 2018 which was adopted and implemented subsequent to many of the cases referred to above being decided is, in many respects, particularly in terms of criminal offences created thereby, very similar to and draws upon aspects of the legislation enacted in England and Wales in 2003 and Scotland in 2009 and it would be natural for those to be the jurisdictions to which the Court would pay closest regard.
39. There were two other indictments before the Court, the circumstances of which can be taken shortly.
40. Whilst on bail for the offence of rape in January 2021, the Defendant and his brother had a fight in a public place (Count 1), with the Defendant punching his brother and then the two fighting in the street, with a member of the public attempting to separate them but to no avail. When the police arrived, the Defendant fled the scene on a motorbike for which he was uninsured and had no driving licence. The motorbike was in a poor state of repair. In interview, the Defendant made full admissions in relation to the driving offences but made no comment in relation to the breach of the peace.
41. As to the third indictment in June 2021, again whilst on bail, the Defendant moved into his brother's address in breach of his bail conditions. Owing to his behaviour he was asked to leave his brother's home. In fact, the Defendant broke into his brother's property with intent to commit a crime and therein did malicious damage. He punched a hole in his brother's television screen; cut his brother's trainers; put his brother's computer into a sink and ran the tap and also damaged his gaming equipment by soaking it with water. The total cost of damage was £1,250. The Defendant's brother reported him to the police. He was arrested and admitted the offence and spoke of his brother in very aggressive terms. He pleaded guilty to all these offences at the first opportunity in the Royal Court. The Crown's conclusions were not challenged by the defence, but in one respect were reduced by the Court on the grounds of totality. The sentences imposed were as follows:
First indictment
Count 1 (rape) 5 years, 3 months' imprisonment
Second indictment
Count 1 (breach of the peace by fighting) 1 month imprisonment
Count 2 (no driving licence) No separate penalty
Count 3 (no insurance) 1 month imprisonment consecutive
Count 4 (defective breaks) No separate penalty
Count 5 (defective bodywork) No separate penalty
Count 6 (defective lights) No separate penalty
Total on Second Indictment: 2 months imprisonment consecutive to first indictment;
Third indictment
Count 1 (breaking and entering with intent to commit a crime) 7 months imprisonment consecutive (reduced from the Crown's conclusions of 10 months imprisonment)
Count 2 (malicious damage) 3 months imprisonment consecutive
Total on Third Indictment: 7 months imprisonment consecutive to first and second indictment.
Total sentence: 6 years imprisonment
42. As a result of his conviction, the Defendant became subject to notification requirements under the Sex Offenders (Jersey) Law 2010. The Court ordered that the minimum period of 7 years elapse before which the Defendant may seek to have the notification requirements discharged.
43. The Court considered its powers to make restraining orders against the Defendant under Article 5 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 and ordered that the Defendant be restrained indefinitely from approaching or contacting the complainant directly or indirectly (including via social media) or going in or near to her place of work.
44. Finally, we needed to consider the question of deportation in this case.
45. The Defendant falls within the provisions of Section 3(6) of the Immigration Act 1961, extended to Jersey by virtue of the Immigration (Jersey) Order 1983 in that he is not a British citizen, he has attained the age of 17 and has been convicted of an offence publishable by imprisonment.
46. The two-part test applied by the Court when considering whether to recommend is set out in Camacho -v- AG [2007] JLR 462. There were two questions for the Court to determine:
(i) Is the Defendant's continued presence detrimental to the community?
All the Jurats were satisfied that the first part of the test was satisfied. The Defendant has committed a very serious sexual offence and committed further offences whilst on both police and Royal Court bail.
(ii) Will the effect of deportation on the human rights of innocent persons connected with the Defendant and of the Defendant himself outweigh the fact of his detrimental presence? In other words, are the effects of deportation disproportionate having regard to the human rights of the Defendant and those connected to him?
The Crown submitted that the second limb of the test was also met. The Defendant has no partner or children in the Island. He came to live here in 2015 as an adult aged 19. He is currently unemployed. Although his two brothers and sister and his grandparents live in Jersey, his parents live in Madeira. Two of the Jurats were satisfied that in those circumstances the Court should recommend deportation. However, three of the Jurats were, by a very narrow margin in the case of each Jurat, satisfied that the effect of deportation would be disproportionate and accordingly by three votes to two the Jurats decided not to make a recommendation for the Defendant's deportation. Those Jurats in favour of recommendation for deportation felt that the severity of the offence committed by the Defendant could not be outweighed by consideration of the Defendant's convention rights and those of his family. In other words, deportation would not be disproportionate. The three Jurats who felt that it would be disproportionate had regard to the Defendant's work record and the fact that we were told that his parents were shortly to move from Madeira to Jersey, in which circumstance the Defendant's entire family would be living in the Island.
