Da SIlva v AG (Royal Court : Hearing (Criminal) : Binnington) [2026] JRC 022 (21 January 2026)

JUDGMENT THE COMMISSIONER: The appeal 1. On 13 January 2026, the Court heard the Appellant's appeal against a sentence of ten months' imprisonment, imposed upon him by Relief Magistrate Le Cornu ("the Magistrate") on 17 October 2025, in respect of one charge of grave and criminal assault, to which the Appellant had pleaded guilty. The legal framework 2. The legal framework for such an appeal was summarised by the Bailiff in McDonald v AG [2025] JRC 323 (at paragraphs 10-12) in the following terms: "10. The Court's powers on appeal are prescribed by statute and case law under Article 33 of the Criminal Procedure (Jersey) Law 2018. A defendant convicted by the Magistrate's Court has a right of appeal to this Court and under Article 36 the Court has wide powers including to confirm, reverse or vary the decision of the Magistrate or indeed to remit the matter to the Magistrate with its opinion and to make such other order as it thinks just, so long as that was a power within the power that the Magistrate's Court has or had.

11. As to the test on appeal this Court, (see Ahmed v AG [2006] JRC 196 ) needs to find that the sentence imposed by the Magistrate was wrong in principle or manifestly excessive if it is to interfere. This is not a re-hearing. This is not a second go for an appellant on the same facts to ask this Court to sentence him or her afresh.

12. However, in the case of Bhojwani v. AG [2011] JLR 249 to which we have been referred by the Crown, the Court of Appeal set out the test for an appeal from the Royal Court to the Court of Appeal and it has been said on more than one occasion that the same approach is justified on appeals from the Magistrate's Court to this Court. In Bhojwani the Court of Appeal said: "In broad terms, it is submitted that the court will interfere - (a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law; (b) where sentence has been passed on the wrong factual basis; (c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive."" The grounds of appeal 3. The Appellant noted that the Magistrate declined to follow the recommendation of the probation service - namely that the Appellant should be sentenced to a period of community service and probation - and instead imprisoned him.

4. It was submitted that the reasons that the Magistrate gave for his decision were essentially twofold - (i) that it was the policy of the Magistrate's Court to send anyone who is convicted of drunken street violence to prison; and (ii) that policy will always be followed absent "exceptional circumstances" (the "Policy").

5. The Appellant contended that the Magistrate misdirected himself as to the relevant legal test and / or applied a policy that in fact did not exist and that he was not required to follow. Put another way, the Appellant submitted that the Magistrate took into account irrelevant considerations leading to a decision which was unreasonable. The judicial process 6. The Appellant and his co-defendant, Luis Vieira ("Mr Vieira") (together "the Defendants") first appeared before the Magistrate's Court on 18 September 2025, charged jointly with grave and criminal assault and they entered guilty pleas. The Court considered jurisdiction and concluded that the case was on the edge of the Court's jurisdiction, this in part being due to the Appellant's previous convictions. The Court retained jurisdiction and indicated that once the Pre-Sentence Reports were received the position on jurisdiction would again be reviewed. The case was adjourned for reports to be prepared, and the Defendants were remanded on conditional bail pending sentence.

7. On 17 October 2025, the Defendants were sentenced by the Magistrate. The Court was addressed on the facts and footage of the assault was played to the Court. Defence counsel addressed the Court in mitigation before the Court retired to consider sentence. The Magistrate sentenced the Appellant to ten months imprisonment and Mr Vieira to one-hundred and twenty hours Community Service, the equivalent of six months' imprisonment.

8. At the sentencing hearing, prosecuting counsel outlined the facts to the Magistrate, stating that the grave and criminal assault took place on 23 May 2025 at approximately 9 p.m. The police were alerted by a member of the public who reported a group of three youths fighting in La Motte Street. Three males were identified, of which two were the Appellant and Mr Vieira. The witness described two young males who had been hugging one another and who appeared to him to be intoxicated. An unknown man in a suit had walked past them. The witness did not hear if the man had said something or looked at the young males, but he then saw one of the males grab the male in the suit and pull him to the ground. He also described seeing kicks and punches aimed at the man in the suit.

9. The witness recorded part of the incident on his mobile phone, and this was played to the Court. We also viewed the video footage. The footage shows the Appellant aiming kicks towards the male on the ground and, at the end of the incident, the footage captures the Appellant spitting towards the male.

10. Prosecuting counsel noted that when the Appellant was interviewed by the police on 3 August 2025, he said that he had no recollection of the incident itself, except that he recalled waking up in a police cell the next morning. He was unable to provide any detail about what had happened, how it had begun, or what had taken place between the parties. He said that he did not know who the third male who had been involved was. He said that he had been out with friends and colleagues for celebratory drinks following his announcing the forthcoming birth of his child to his friends.

11. The Appellant could not provide any explanation for his actions. He said that he believed that there was a precursor and build-up which was not captured on the footage but, whilst this didn't justify his actions, he said that this provided a reason as to why he reacted in this manner. He concluded that his actions were still not reasonable and when shown the footage of him spitting towards the unknown male, he described his action as disgusting, further commenting that the unknown male had called him in Portuguese a son of a bitch and that he had responded to say, " No, you're the son of a bitch ", and then he spat towards the male.

12. The Appellant had two previous convictions for grave and criminal assault in 2021 which resulted in a sentence of fifteen months' imprisonment. The pre-sentence report noted that he had been assessed as being at high risk of reconviction and significant risk of harm to the public; this was considered to be more likely to be high when under the influence of alcohol. The report also noted that he had breached previous Court Orders by virtue of his 2021 offending.

13. In addressing the Magistrate in mitigation, in addition to referring to a number of character references which spoke highly of the Appellant, Advocate Jones drew the Magistrate's attention to aspects of the pre-sentence report, describing it as " perhaps the most independent or most forceful document written about Mr Da Silva ". He highlighted a passage which read - "I'm aware of sentencing policy for an offence of alcohol-related violence on the town streets of Jersey. However, in light of the above information, I respectfully recommend that the current matter be dealt with using a multi-targeted approach by way of a combination of a twelve-month probation order together with a period of community service as a direct custodial alternative." 14. At the conclusion of the plea in mitigation, the Magistrate said - "The Court has said on numerous occasions that offences such as this will normally attract an immediate custodial sentence unless there are exceptional circumstances. Now, the Royal Court clearly in very similar circumstances or for similar offences, of which there were two, clearly didn't find any exceptional circumstances and imposed a custodial sentence. Do you wish to address me on what exceptional circumstances there might be in this case?" 15. Advocate Jones responded, saying: "In my submission your hands and the Royal Court's hands are not tied that

exceptional circumstances are required for drunken violence or street violence. That's not, in my submission, a correct test. The Court always has a discretion to exercise and it does not follow, and should not follow, that simply because somebody has been to prison previously or in those specific circumstances at that specific time the appropriate measure was to send them to prison, or in the alternative if the position the Defendant had placed himself in on that occasion didn't put him in a position to persuade the Court that a custodial sentence was appropriate." 16. Counsel urged the Magistrate to look at the Appellant as he was at the time of sentencing and not as he had been some 4 years previously, highlighting the good references, a stable job and family life and a support network to enable him to make changes, concluding that " simply sending him to prison because the Royal Court has done so before in my submission would not be a justifiable position ".

17. When the Magistrate returned with his decision, he said: "The policy of this Court has been repeated in many cases, on many occasions, that alcohol-fuelled violence on the streets of St Helier is unacceptable and will not be tolerated. It is unacceptable for people to drink themselves into a state of near oblivion and then to become involved in an assault of this nature and such behaviour will attract an immediate custodial sentence unless there are exceptional circumstances." 18. He noted that " kicking someone when down on the floor runs a risk of causing grave injury ", adding that it was an unprovoked attack on someone on a public street at 9 p.m. and that it appeared that the victim did not fight back. He referred to the fact that in 2021 the Appellant had been sentenced to fifteen months' imprisonment by the Royal Court for two grave and criminal assaults, amongst other matters, for similar offences in similar circumstances.

19. It is at this stage perhaps worthy of note that on sentencing the Appellant in 2021 ( AG v Da Silva [2021] JRC 168 ), the Court had said (at para 12) - "The Court's policy has been often stated, that alcohol fuelled violence on the streets of St Helier is unacceptable and will not be tolerated by this Court and in the absence of exceptional circumstances will be met by a custodial sentence. We have made this policy clear." 20. The Magistrate went on to consider the Appellant's mitigation, including his guilty plea and his remorse. He noted that the Appellant's' letter to the Court was very eloquent but pointed out that the pre-sentence report suggested that the Appellant had expressed similar sentiments when he was sentenced by the Royal Court three years previously for committing similar offences.

21. The Magistrate further noted that the Appellant was in stable accommodation, that he had employment, and that he was in a relationship with a child on the way. He noted that his references were impressive but concluded by saying that " None of those, in my view, can be regarded as exceptional circumstances and I can find no other circumstances to depart from the policy of this Court. There are aggravating circumstances: your previous convictions for similar offences, you were extremely drunk to the point that you cannot really remember the incident. To all intents and purposes this was an unprovoked attack and even if the victim did make a comment to you, it does not justify the behaviour that followed that comment ". He thereupon sentenced the Appellant to ten months' imprisonment. Appellant's submissions 22. Advocate Jones argued that the difficulty with the position taken by the Magistrate could be illustrated by the manner in which he dealt with the Appellant's co-defendant. While it was accepted for the purposes of sentencing that the co-defendant had a lesser role than the Appellant, Advocate Jones pointed out that he was convicted of the same criminal act against the same victim at the same time.

23. He noted that Advocate Heath (for Mr Vieira) did not address the Court as to the presence (or otherwise) of exceptional circumstances. He suggested that the only differences between the two defendants were - ( i ) their respective roles in the assault; and (ii) their antecedents. The Appellant had a poor and relevant record for violence - in relation to which he had previously served a prison sentence. His co-defendant by contrast had no criminal record.

24. He submitted that whilst those were relevant considerations to the sentencing process and should arguably lead to a difference in sentence for the two defendants, they did not amount to exceptional, or indeed unusual, circumstances - they were in fact circumstances that are entirely commonplace and dynamics that a sentencing Court frequently encounters.

25. The Magistrate had said, in respect of the co-defendant that " what I have said regarding the sentencing policy of the Court applies equally to you " and went on to conclude that - ".... because of everything that I have referred to and considered, I can look at imposing an alternative sentence." 26. Advocate Jones suggested that this was an extraordinary conclusion to reach, particularly in light of the fact that Advocate Heath was not asked to (and did not) address the Court as to any exceptional circumstances that applied to the co-defendant. He submitted that the fact that no exceptional circumstances were considered by or otherwise recognised by the Magistrate in his judgment demonstrated that the policy to which the Court referred and relied upon in respect of the Appellant was not a policy at all and / or to the extent that it was, it was not immutable in the way that the Magistrate described. The Respondent's contentions 27. Advocate Ridley, for the Respondent, submitted that judgments of the Royal Court made clear that there is a clear policy in the Royal Court, and by extension the Magistrate's Court, that offences of drunken street violence are met with a sentence of imprisonment, save where exceptional circumstances are present. In addition to the sentencing remarks in respect of the Appellant's conviction in 2021 to which we have already referred, she referred

us to a recent reiteration of the policy by the Royal Court in AG v McBride [2025] JRC 192 where the Court stated: "It has been said before, but we say again, drunken violence on our streets is completely unacceptable, and the Court's policy is to send such offenders straight to prison unless there are exceptional circumstances." 28. In relation to the Magistrate's Court Guidelines, Advocate Ridley noted that whilst they did not refer in terms to offences of drunken street violence, the Guidelines stated that the starting point for an offender pleading guilty to an " assault with considerable force resulting in moderate, non-permanent harm (including physical and psychological harm), or assault by spitting ", was six months' imprisonment. She further noted that " kicking " was listed in the Guidelines amongst the aggravating factors for assault and further pointed out that in Fernandes v AG [2023] JRC 098 the then Deputy Bailiff stated (at para 7): "The Court is always free if, it finds the custody threshold has been passed, certainly in respect of an adult, to pass such a sentence [of imprisonment] and is not obliged to impose a Community Service Order as an alternative".

29. She submitted that where the custodial threshold is passed, there is no assumption, therefore, that a non-custodial sentence will be imposed. The Appellant was not a young offender and the assumption that a custodial sentence will only be imposed if certain conditions apply, is not applicable to the Appellant. Accordingly, she submitted that where custody was a sentencing option open to the Court, it cannot be said that by imposing a custodial sentence the Magistrate was wrong in principle.

30. She noted that the Appellant had submitted that the non-custodial sentence imposed on Mr Vieira illustrated that the policy was not binding on the Magistrate and that there were no exceptional circumstances in his case which would result in a non-custodial sentence being imposed. However, she highlighted that the mitigation available to Mr Vieira, in particular that he had no previous convictions of any kind and was assessed as being at a low risk of reconviction by Probation. The lack of previous convictions was referred to by the Relief Magistrate in the sentencing remarks to which we have already referred where he said - " I have considered all the matters in the pre-sentencing report, your references and, more importantly, the fact that you have no previous convictions ".

31. Advocate Ridley also drew our attention to the fact that whilst both defendants were charged with the same offence, Mr Vieira had a different role in the assault and that, as the Royal Court had pointed out in AG v Howe and Gill [2025] JRC 156, where the defendants were jointly charged with a grave and criminal assault but received different sentences due to their differing roles in the assault, the Royal Court had said: "We felt able to make a modest discount from the conclusions moved by the Attorney General and make a distinction between the Defendants based upon the actions that they took during the course of the assault." 32. Whilst the Respondent accepted that in sentencing Mr Vieira the Magistrate did not refer to the mitigation available to him as " exceptional ", Advocate Ridley submitted that he must have found it so, given his clear references to the policy of the Court in his remarks when sentencing Mr Vieira to a non-custodial sentence - "Now, I accept that you played a lesser role in this behaviour but you still played a role and, indeed, it would appear that you brought the victim down in the first place and threw some punches at him, although you do say that you were trying to prevent the parties from fighting. What I have said regarding the sentencing policy of the Court applies equally to you." 33. We accept, as the Respondent has pointed out, that there

were considerable differences between the Appellant and Mr Vieira that justified the difference in their sentences. The Appellant kicked and spat at the victim and, on his own admission, could not recall the incident and could not explain why he had acted in the way he did. He had been drinking prior to the incident and in the pre-sentence report he accepted " that his recollection of events is limited due to his excessive alcohol consumption ".

34. Furthermore, the Appellant had two previous convictions for grave and criminal assault in 2021 which resulted in a sentence of fifteen months imprisonment. Mr Vieira on the other hand had no previous convictions.

35. The Appellant was also assessed by the Probation Service as being at high risk of reconviction and significant risk of harm to the public and this was considered to more likely be high when under the influence of alcohol. The report also noted that he had breached previous court orders by virtue of his 2021 offending. The Magistrate further noted that the remorse expressed by the Appellant in the present case was similar to that expressed to Probation in 2021. Although not explicitly stated, the inference was that the Appellant expressed remorse for his violent offending in 2021 but still went on to commit the present offence. Decision 36. We take into account the fact that the Magistrate delivered his sentence ex tempore and therefore it was relatively brief. There may have been factors that he took into account but which were not expressed in the decision that he gave. Nevertheless, we must consider the matter in the light of what he said.

37. It is clear from what the Magistrate said that he regarded the policy in relation to drunken street violence expressed by the Royal Court to be equally applicable in the Magistrate's Court, stating - "Alcohol-fuelled violence on the streets of St Helier is unacceptable and will not be tolerated. It is unacceptable for people to drink themselves into a state of near oblivion and then to become involved in an assault of this nature and such behaviour will attract an immediate custodial sentence unless there are exceptional circumstances." 38. Similarly, when sentencing Mr Vieira, he said: " what I have said regarding the sentencing policy of the Court applies equally to you ". However, it is fair to point out that he did not expressly refer to exceptional circumstances that would have justified the non-custodial sentence that he then passed.

39. However, in our view, there may be circumstances in which a policy applied by the Royal Court, whilst a matter that may properly be taken into account by the Magistrate, is not automatically applicable in the Magistrate's Court. Grave and criminal assaults dealt with in the lower Court will necessarily include some that would be unlikely to come before the Royal Court and accordingly the lower Court may have to exercise a greater degree of flexibility when considering custodial and non-custodial sanctions.

40. We conclude, from the Magistrate's sentencing remarks, that he regarded himself bound by the Royal Court's policy and therefore only able to depart from it where he found exceptional circumstances. In those circumstances, we find that he misdirected himself in relation to the application of the policy and did not exercise the discretion that we find was available to him. We therefore set aside his decision. The appropriate sentence 41. In the light of that decision, we went on to consider afresh what the appropriate sentence should be.

42. For the reasons expressed by Advocate Ridley, to which we have referred above, a custodial sentence, in the circumstances of this case, could not be regarded as wrong in principle. It was an assault in a public street, by an intoxicated individual, involving kicking the victim whilst he was on the ground and subsequently spitting on him. Whilst, as we have noted, the Royal Court's policy towards such offences may not have been rigidly applicable, that policy nevertheless reflects the Court's concern for protecting members of the public from such behaviour. Indeed, it was a concern that was referred to expressly by the Royal Court when the Appellant was sentenced in 2021.

43. There was a significant difference between the Appellant and his co-accused. Although the co-accused punched the victim there was no suggestion that he kicked or spat at him and the Magistrate accepted that he had played a lesser role than the Appellant. In addition, although he had been drinking, the co-defendant was not intoxicated to the same extent as the Appellant. He had no previous convictions, unlike the Appellant who had a conviction for two grave and criminal assaults. The first involved head-butting the victim in the street, the second being described by the court as " a vicious and drunken assault ", both offences being committed in the street.

44. Whilst we note the positive work references submitted on the Appellant's behalf and his letter of remorse, the fact remains that this was a repeat of behaviour that had led to his imprisonment in 2021 and the offences with which he was convicted in 2021 were themselves committed in breach of a previous non-custodial sanction.

45. Having looked at the matter afresh and taken into account the circumstances of the offence, the Appellant's antecedents and his mitigation, we found a custodial sentence of the length imposed by the Magistrate to be the appropriate sanction and we therefore reimposed that sentence. Authorities McDonald v AG [2025] JRC 323 . AG v Da Silva [2021] JRC 168 . AG v McBride [2025] JRC 192. Fernandes v AG [2023] JRC 098 . AG v Howe and Gill [2025] JRC 156. Page Last Updated: 13 Feb 2026 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII