Inferior Number Sentencing - domestic abuse - reasons for the sentence imposed

[2024]JRC094

Royal Court

(Samedi)

6 March 2024

The Attorney General

-v-

James Alberto Lopez Veloso

Ms L. B. Hallam, Crown Advocate.

Advocate J. Corbett for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 23 February 2024, this Court sentenced James Alberto Lopez Veloso (“the Defendant”) to two hundred and forty hours community service (the equivalent of eighteen months imprisonment) under a two year probation order.  When we handed down sentence, we said that we would give our reasons on a later occasion.  These are those reasons. 

2.        The Defendant was charged with one count of domestic abuse contrary to Article 3(1) of the Domestic Abuse (Jersey) Law 2022 in which it was alleged that he engaged in behaviour on at least two occasions which was abusive toward his former partner, the Complainant.

3.        This is the first time, as far as we are aware, that this offence has fallen to be sentenced by the Court.

4.        Domestic abuse is a serious offence and very often it will be appropriate to meet it with a sentence of imprisonment.  The understanding of the harm done by domestic abuse has grown significantly over the last few years and the Court, and wider society, has developed an increasing understanding of how insidious and damaging it may be.

5.        That being said, domestic abuse can of course come in a multiplicity of different guises and be represented by very different types of behaviour over different periods with differing effects.  In such cases the Court would generally wish to understand the nuance of the relationship between the abuser and complainant, and the Court must be astute to understand the gravamen of what has happened in terms of culpability and harm and otherwise, as well as the particular consequences on the complainant and any particular features of the abuser.

6.        The statutory maximum penalty for this offence is five years imprisonment and, in this case, on a guilty plea, the Crown moved for a sentence of three years imprisonment.  Accordingly, had the Defendant pleaded not guilty and no discount for a guilty plea accordingly been available to him, the Crown would presumably have moved for a sentence of in excess of four years imprisonment and therefore one close to the statutory maximum.  When a sentence approaches the statutory maximum, it is incumbent upon the Court, we think, to consider what worse cases there may be which might justify that maximum penalty, and the range of behaviour that might constitute the statutory offence of domestic abuse. 

The factual background

7.        The Defendant is 28 years of age and the Complainant is 22 years old.  They were in a relationship for approximately one year which was ended by the Complainant in September 2023 although they remained in contact and spoke on a daily basis.

8.        It appears that during the relationship the Defendant had, from time to time, taken items from the Complainant’s flat and failed to return them and had also previously spat at her and was verbally abusive including referring to her as a “fat slag”.

9.        Certain specific instances underpin the charges, however.  On 10 October 2023, the Complainant left the flat to go to work.  She owns a grey teddy bear of significant sentimental value which she left on her bed.

10.     The following day the Complainant returned home and she noticed that the windows in her flat had been closed where she had left them open.  She also noticed that the teddy bear was no longer on her bed.  She telephoned the Defendant who confirmed that he had the teddy bear and said that he would drop it to her later that evening.  On arrival at the flat, the Defendant barged his way in telling the Complainant that the teddy bear was at his home and she went with him to collect it.  When he returned from his home to the car he indicated that the teddy bear was down his trousers.  There was an altercation between them but when they returned to the Complainant’s flat the Defendant threw the teddy bear at her.  He appears to have remained there for that night.

11.     The following morning after an innocuous question from the Complainant, the Defendant’s mood changed and he said to the Complainant “I hate you” and then picked up her phone and bent it, throwing it against the wall.  This caused damage not only to the phone but to the boarded up fireplace and the Defendant left the flat without saying anything.

12.     The Defendant was arrested and questioned by the police and in the early hours of 13 October was released from police custody on police bail.  One of the bail conditions was that he was prohibited from contacting the Complainant although the Complainant was unaware of those conditions.

13.     Some 8 days later, the Complainant stayed the night at the Defendant’s home leaving it on 22 October and going to work.  She said she could not see him that evening because she had a friend coming round.  She returned to her flat and her friend came round shortly thereafter.

14.     During the evening she noted the television did not work nor did the electric heater.  On checking the fuse box, everything appeared normal but she noted on the back of the television that the fuse holder was out of place and on removing it noticed the fuse was missing.  The Complainant on inspection found that the fuses to four appliances in her flat had been removed.

15.     She suspected the Defendant had removed the fuses.  She sought to contact the Defendant but received no answer and she phoned the police.

16.     A police officer came around to the Complainant’s flat but whilst there the Complainant became concerned the Defendant might actually be in the flat.  The Complainant and the officer checked the flat together and did not find the Defendant on the ground floor but the officer, on checking the hatch door to the loft, noted that it appeared that someone was pushing it down from the other side of the hatch.  On opening the hatch, the Defendant was standing in the loft.  The officer requested assistance but before that assistance arrived the Defendant came down from the loft.

17.     It appears that he spent approximately 5 hours hidden in the loft whilst the Complainant had been below with her friend.  The Complainant later told the police that that incident had terrified her as the Defendant had sat there in the dark loft for many hours listening to her conversation.

18.     We observe that the Defendant’s behaviour was wholly unacceptable and frightening and to us displays a dysregulated relationship with the Complainant which appears to have been possessive and coercive and whilst intimidating was not, however, violent.  This behaviour had occurred over a relatively limited period of weeks, rather than a more prolonged timescale.

19.     Although we do not have a basis for forming a definitive view it does appear that the relationship in terms of its demanding nature was not entirely one-sided.  The Defendant has placed before us screenshots from his phone which we are informed by defence counsel show numerous missed calls and messages from the Complainant which, if we take them at face value, suggests persistent contact from the Complainant and increasing irritation when her communication attempts were not responded to.  We certainly do not express the view that there is anything wrong with these communications and we do not have confirmation as to the circumstances in which they took place but they do suggest that there may be another side to the pattern of communication between the Complainant and the Defendant.  Furthermore, it appears that the Defendant and Complainant stayed together overnight on at least one occasion after their relationship had purportedly ended.  It may be that the relationship between the Complainant and the Defendant is perhaps more nuanced than the statement of facts referred to by the Crown suggests.

20.     The Defendant has a number of previous convictions and therefore does not have the benefit of good character.  In terms of characterising his previous convictions we can do no better than to repeat paragraph 27 of the Pre-Sentencing Report which says:

“Mr Veloso’s previous convictions reveal a pattern of impetuous and reckless behaviours usually around conflict with his family and within intimate relationships.  There are also themes of immaturity, risk taking behaviours, antisocial attitudes and violence”.

21.     We have regard to the contents of the Pre-Sentencing Report for other purposes as well, however.  It sets out in detail the challenges that the Defendant has faced in his life including a diagnosis for ADHD whilst at primary school.  He was on medication from that time which did little to address his condition and he stopped taking it.  In effect, it appears that little has been done to address his ADHD.

22.     He also is facing personal challenges within his family due to illness which we do not need to mention in this judgment.

23.     It is right as advanced in mitigation that, as we have indicated above, the Defendant’s behaviour whilst unacceptable does not contain elements of violence nor did he seek to take steps, for example, to prevent the Complainant from reporting his behaviour or getting assistance.

24.     We, of course, pay regard to the personal impact statement of the Complainant in this case who, amongst other things, tells us that:

“The whole situation has impacted me immensely, physically, emotionally, socially and financially.  I now have a feeling I had not felt in what feels like a very long time.  I feel I can stand on my own two feet again since James has been in custody.  However, I now suffer with severe anxiety, to the point of having panic attacks in my own home due to him hiding in the attic, over any abnormal noise I hear and all the mind-games he played during the relationship.  Overall it has definitely had an impact on my life now and my life forever, as it will always live with me, everything he has done and I will struggle to trust someone again”.

25.     No-one who has read that statement can fail to appreciate how difficult this situation has been from the Complainant’s perspective and what effect it has had on her.

26.     We also note that the Defendant has failed to respond to non-custodial measures in the past and it is therefore hardly surprising to us that the Crown moved for a sentence of imprisonment albeit as we have already indicated, a sentence of 3 years imprisonment in the context of a statutory maximum of 5 years and following a plea of guilty would seem to us to be too high.

27.     This aspect has been addressed in the Pre-Sentencing Report at paragraph 28 where the author says:

“The Defendant’s response to previous probation supervision has been poor and he has breached every probation order imposed by the Court.  The last time he was subject to probation supervision was 2017.  Previous probation records highlight his confrontational attitude and sometimes threatening behaviour…”

28.     At paragraph 29 of the report, the author goes on to say:

“Mr Veloso has not been subject to probation supervision since 2017 when he was 22 years old.  Six years have passed and the Defendant reports that he has matured and if he is given the opportunity to engage with probation supervision he would utilise the sessions by behaving appropriately and working positively through the identified work with a probation officer.”

Conclusion

29.     In the light of the mitigation to which we have referred to above, in our view there is some reason to hope that the Defendant has matured in his attitude to work and will be more responsive to non-custodial measures.

30.     He has pleaded guilty, the offending was over a short duration, there was no violence involved and although his behaviour was wholly unacceptable, we can think of many occasions where domestic abuse will take a far more serious form.  We do not doubt that the Complainant was frightened by his behaviour, but we also take into account the challenges that this Defendant has faced and perhaps continues to face. 

31.     For those reasons, we felt able to deal with the matter by a non-custodial sentence and we imposed a two year probation order with 240 hours community service, the equivalent of eighteen months imprisonment.  We were satisfied that the Defendant will have the opportunity to avail himself of all of the training and assistance necessary to prevent any recurrence of the offending behaviour.

32.     Should he not do so, or should he fail in keeping to the terms of the probation order and community service requirements, then he will be, as is normally the case, returned before this Court for sentencing and must anticipate, absent exceptional circumstances, the imposition of a custodial sentence.

33.     We also imposed a domestic abuse prevention order for a period of 5 years and 5 years notification requirement.

Authorities

Domestic Abuse (Jersey) Law 2022.