Jersey Unreported Judgments

Disorderly behaviour - appeal against the recommendation for deportation

[2021]JRC122

Royal Court

(Samedi)

27 April 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Blampied and Austin-Vautier

Ricardo Miguel Goncalves Rebolo

-v-

The Attorney General

Mr Rebolo appeared in person.

Advocate C. L. G. Carvalho for The Attorney General

Advocate L Sette as amicus curiae

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Appellant appeals against the recommendation for deportation made by the Relief Magistrate on 20^th January 2021.  On that day the Appellant was sentenced to three months imprisonment for an offence of threatening, abusive or disorderly conduct contrary to Article 2 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008. 

2.        The maximum sentence for this offence is three months' imprisonment.  However, the only order aspect that is appealed against is the recommendation for deportation made by the Relief Magistrate. 

3.        In respect of another offence, namely failing to surrender, the Court imposed no separate penalty. 

4.        It is appropriate to set out the circumstances of the offence; the reasons given by the Relief Magistrate for making the orders which he did; the grounds of appeal; the approach the Court should take to the matters of law that this case gives rise to and our decision on appeal. 

The offence

5.        At 8.30am on Thursday 21^st May 2020 the Appellant was driving his van into Colomberie Close from Don Road.  He deliberately swerved his vehicle in front of two women who work at the Customer and Local Services ("CLS") Department whom he recognised from meeting them in connection with benefit payments. 

6.        He did this in order to block their path towards the rear entrance of the CLS offices where they were about to start work.  He decided to confront them in relation to an issue he had in relation to benefit payments. 

7.        The Appellant alighted from his vehicle and confronted the two members of staff concerned.  The police report (we have not been given the witness statements) said that the Appellant was "ranting at them in an angry, aggressive and intimidating manner...[he] made numerous demands of [the two women] to "sort out" his social security payments, and made a threat to kill somebody at Customer and Local Services if his social security payments weren't sorted out".  He then got back in his van and drove away.  The confrontation led to the two individuals "shaken and having suffered a degree of fear and distress during the incident".  They felt "scared" and "trapped" as the Appellant confronted them.  When the Appellant was interviewed by the police four days later, he made full admissions and accepted that his behaviour was unacceptable.  He said he had had difficulties with his benefit payments over the last three months.  He said that he felt that something was going on at CLS which did not make sense and "may have something to do with black magic or witchcraft".  He said that it was not necessarily the two women he stopped who were responsible for his benefit payment issues but he felt that they were somehow complicit as they work for the same department.  He said that he was angry and accepted that he did remember making a threat to kill and said that he felt that he might go to the department one day and seriously hurt or kill someone if the situation was not resolved. 

8.        The Appellant was born in October 1984 in Madeira and is accordingly aged 36.  He has a number of motoring related convictions recorded against him in (2011, 2012, 2013, 2014, 2016, 2017 and 2019) dealt with by way of a financial penalty by the Magistrate's Court or the Parish Hall.  His only conviction of substance is a sentence of seven months' imprisonment imposed by the Royal Court in March 2014 for three offences of common assault and an offence of driving a motor vehicle whilst unfit to drive through drink or drugs which was dealt with by the Court on the same occasion and led to a consecutive sentence of one month imprisonment consecutive to the six months imposed at the same time for assault and a disqualification from driving for a period of 15 months. 

The reasons given by the Relief Magistrate

9.        The Appellant pleaded guilty on 14^th September 2020.  On 8^th December 2020 he was bound over to leave the Island for three years, having attended the Court late (the failing to surrender offence).  He was legally represented at both hearings.  Subsequently he withdrew his consent to leave the Island and was re-sentenced on 20^th January 2021.  He did not have legal representation at the hearing in January.   

10.      The Relief Magistrate gave reasons for his decision in respect of deportation by way of a judgment delivered subsequent to sentencing the Appellant to custody and deportation.  It is appropriate to set out those reasons in full:

"After hearing from Advocate Baglin, for the Prosecution, and the Defendant in person and having considered all the evidence and the Reports available to the Court I made a recommendation for the Deportation of the Defendant.

I now give my reasons for making that recommendation.

The Court has power under the Immigration Act 1971 as extended by the Immigration (Jersey) Order 1993 to recommend to the Minister for Justice and Home affairs that an individual be deported from Jersey.

Notice under the Act was served upon the Defendant on the 12^th January 2021. The Defendant refused to sign the Notice.

The Defendant is not a British Citizen. He is aged 35 having been born on the 16^th October 1984.

The leading case on deportation is Camacho v AG (2007) JCA145. Which sets out a two stage test to be applied.

The first test set out in Camacho is whether the Defendant's continued presence in the Island is detrimental to the Island.

I have had the benefit of reading the SER prepared by Susan Brown and the Report of Dr Tanya Engelbrecht, Consultant Psychiatrist prepared for the original sentencing hearing.

The facts of the offence are that two female employees of Customer and Local Services (CSL) were on their way to work at CSL.  As they walked along the Defendant swerved his van in front of them, blocking their path to their place of work and then proceeded to harangue them in a loud, aggressive and intimidating manner threatening "to kill" someone at CLS if his benefits payments were not reinstated.

According to the SER, notwithstanding his guilty plea, the Defendant denies that his behaviour was threatening or abusive or intimidating. He stated that "one of the women looked as though she had been entranced by some form of magic".  As the writer of the Report observes he does not accept that the woman might have been displaying shock or fear.

According to the SER the Defendant continues to express entrenched dissatisfaction with the workings of the CLS Department which he believes is deliberately trying to cause him problems by sending him the wrong letters and taking the wrong decisions. He believes that "magic" may be being used against him.

He discussed these beliefs with the writer of the Report and explained that a lot of the adverse events in his life are "supernatural influences".  And, that, in some situations, these beliefs allow him to ascribe malign intent towards people who do not act in the way he thinks right and absolve him of any responsibility for his actions.

It is Dr. Engelbrecht's opinion that the Defendant suffers from a psychotic illness, possibly drug induced.

She states that the "Defendant may pose a risk to others should he be non-compliant with anti-psychotic medication.

The Defendant agreed to her prescribing such medication on the 9^th October 2020. Having accepted the prescription he informed his Probation Officer that he has no intention of using it.

The Probation Officer concludes that the Defendant is "at very high risk of reconviction because of his drug misuse, his unstable employment history and his isolation from positive social influences. He insists that his view alone is correct and he has a lack of concern for others".

The SER states that there are concerns about the Defendant's ongoing sense of grievance in relation to CLS as a Department and how that might manifest itself.

In the case of the current offence he directed his anger at two staff members who, although not hurt, were subjected to an intimidating and abusive experience.

The SER deals with "The risk of harm to others". The psychiatric assessment notes occasions when the Defendant had minor injuries and disclosed to his keyworker that these resulted from violent incidents.

In January 2013 he disclosed to a psychiatrist that he had thought of "hurting someone" but had no specific plans.

During the current offence the Defendant threatened to hurt or "kill" someone at CLS.

According to the Report he is known to have owned a crossbow and to carry knives.

Dr. Engelbrecht points out that his substance misuse and non-compliance with medication raise the risk of a deterioration in his mental health and increase the risk of violence being committed.

The Defendant informed the Probation Officer that his Benefits Claims were subject to "the malign influence of magic forces" and he described the Government of Jersey in all is forms as "corrupt".

The Probation Officer states that he has little understanding of the impact of his actions on his victims.

She states that it is unclear how he will deal with his frustrations in the future given his disinclination to accept that his behaviour was inappropriate.

He describes his Prosecution as "corrupt and negligent".

Dr. Engelbrecht reports that on the 22^nd October 2020 the Defendant displayed abusive language and aggressive behaviour towards staff at the Alcohol and Drugs Service when there was confusion about his appointment time.

He refused to work with the Probation Service and the Alcohol and Drugs Service.

He has demonstrated his refusal to comply with Court Orders when, as sated above, having agreed to be bound over to leave the Island, in breach of that order he refused to board the plane.

In 2014 the Defendant was convicted of three counts of assault upon his then heavenly [Royal Court comment: the Relief Magistrate must have meant "heavily pregnant" not "heavenly"] partner. He refused to take any responsibility for the offences and stated to the Probation Officer at the time that "he had to behave that way for her own good".

Whilst on bail for the above offences he was charged and convicted of driving whilst under the influence of drugs.

On release from custody he had been due to start the ADAPT domestic violence programme but he did not attend.

In the most recent SER he told the Probation Officer that he often finds himself feeling stressed by "over work" and that he deals with this by "taking a break and claiming sickness benefit".

I am in no doubt that if the Defendant were to remain in Jersey after his release from custody he will continue to offend and poses a considerable risk to the staff at CLS and other Government Departments and the public in general. His threat to "kill someone at CLS" must be taken extremely seriously.

I, therefore, conclude that the Defendant's continued presence in Jersey would be detrimental to the Island.

Having reached that decision I then had to consider whether the Defendant's Deportation would be disproportionate to his rights under Art 8 of ECHR.

The Defendant came to Jersey in about 2009.

He is currently single.

He has two children aged seven and six with an ex-partner. Following his conviction for offences against his ex-partner the Childrens Service became involved and the couple separated. He informed the Probation Officer that he does not see his ex-partner because "this is best for both of us". He does not see his children as "this is the easiest thing to do.. because you don't have any responsibilities".

He informed the Probation Officer that he chooses not to have friends and eschews contact with people as far as possible.

He has lived alone for the last four or five years.

He has no other family in Jersey.

He agreed to be bound over to leave the Island for three years and clearly he was then happy to leave the Island although he changed his mind and refused to board the plane as stated above.

The Defendant has no other links with the Island.

I am of the view that the Defendant's rights would not be disproportionately affected by his Deportation from the Island.

I, therefore, recommended that the Defendant be deported from Jersey."

Grounds of appeal

11.      The Appellant appealed by noticed dated 2^nd March 2021.  He was given leave to appeal out of time. 

12.      The Appellant has now completed his sentence and is being held in custody pending deportation. 

13.      He says in his letter to the Court that the offence was a brief "act of bad behaviour" that lasted 20 seconds.  He said there were no injuries to the victims.  He said he has been employed, including during the recent public health crisis.  He lives in Jersey and has done so since 2009 and is now an entitled resident pursuant to the provisions of the Control of Housing and Work (Jersey) Law 2012.  He is usually in work.  He says he did not commit offences whilst living in Madeira, where he resided for 24 years.  He said his risk of re-offending was low because he did not drink and take drugs.  He said that he was worried that his two young children (although there is no suggestion he has contact with them) would be more vulnerable if he was deported or anything happened to their mother.  In Madeira he had no property and although his parents both lived there, his mother is unemployed, and his father is on a modest wage.  It appears that he challenges the Magistrate's finding on both limbs of the test for deportation. 

The relevant legal principles

14.      It is clear from the case of Dryjanski -v- AG [2009] JRC 041 that the Magistrate's Court has jurisdiction to make a recommendation for deportation. 

15.      The test for recommendation for deportation is well known and was set out by Beloff JA, giving the judgment of the Court of Appeal in Camacho -v- AG [2007] JLR 462.

16.      The decision in Camacho was considered by the Royal Court in Gomes -v- AG [2019] JRC 157 and the principles were conveniently summarised by Sir Michael Birt, Commissioner, as follows:  

"15. The decision in Camacho confirms that, before it can make a recommendation for deportation, the Court must conclude:-

(i)        that the defendant's continued presence in Jersey would be detrimental to the public good; and

(ii)       deportation would not be disproportionate having regard to the rights of the offender and her family to respect for family life under Article 8. 

16. In relation to the first limb of the test, the Court of Appeal in Camacho said this at para 17:-

"17. The first limb of the Nazari test has seldom given rise to difficulty.  The continued presence of the offender being "to the public detriment" and other formulation such as "not in the public interest" or "not conducive to the public good" have been applied in England broadly in line with the dictum of Judge LJ in N (Kenya) -v- Home Secretary ...:-

"The 'public good' and the 'public interest' are wide-ranging but undefined concepts.  In my judgment ... broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged.  They include an element of deterrence ... so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation." 

In the Bailiwicks, similar principles are applied.  In Jersey, the courts have sometimes expressed it in terms of abuse of privilege (see AG -v- Dubiel and AG -v- Martins)." 

...

19. We turn therefore to consider the second limb of the Camacho test.  The Court, being a public body, must not act in breach of a person's rights under ECHR.  Article 8 permits interference with the family life of an offender if it is necessary "... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others."  As the Bailiff said in J -v- Lieutenant Governor [2018] JRC 072A, at para 53, this imports the need for an assessment of proportionality.  Balancing the interests of the community against the Article 8 rights of the Appellant and her family, is it proportionate to recommend deportation?"

17.      It is of course essential that the Relief Magistrate directed himself appropriately in relation to these principles and this Court will only interfere if the lower court, having directed itself properly, reaches a decision that is unreasonable in the circumstances.  We will not interfere because we might have come to a different decision. 

18.      We note from the judgment of Sir Philip Bailhache, Bailiff, in Dryjanski -v- AG at paragraph 12, in respect of the first limb of Camacho the Court observed:

"We do not disagree with any of the sentiments expressed in these authorities, but we think that two points deserve emphasis.  First, the requirements of public policy in Jersey are set by this Court and not by the courts of England and Wales.  What may be the requirements of public policy in England are not necessarily the requirements of public policy in Jersey.  As mentioned by Beloff JA in Camacho, this Court has often expressed its approach to a recommendation for deportation in terms of whether an abuse of privilege is in question.  In Mendonca v AG [2006] JRC 132 the Superior Number, sitting as a Court of Appeal, stated:-

"It is a privilege to live in this Island.  If a person who is a foreign national conducts himself in such a way that he abuses that privilege he is liable to be deported".

Secondly, it is an incorrect approach to ask whether the offence is serious enough to merit a recommendation for deportation.  The gravity of the offence or offences is but one factor, even if often an important factor, in determining whether the continued presence of the defendant in the Island is detrimental to the interests of the community."

19.      As to the approach of this Court on appeal we have regard to the judgment of the Court in Bunea -v- AG [2019] JRC 056A, where Sir William Bailhache, Bailiff, drew a distinction between the appeal against the sentence of imprisonment and the recommendation for deportation was also appealed in that case.  In respect of the sentence the Court said:  

"6. The question for us in this Court, is whether we should interfere with the sentence on one of the well-established grounds, summarised in the case of Loureiro v AG [2015] JRC 154, where the Court said this at paragraph 9 of its judgment:

"9.      It is well established that the Court will not interfere with the sentence imposed by the Magistrate unless it is one which is not justified by law, or the sentence was passed on the wrong factual basis, or some matter has been improperly taken into account or left out of account, or there was some fresh matter which ought to be taken into account or whether the sentence was wrong in principle and manifestly excessive.  In particular, it is not the function of the Royal Court to tinker with sentences which were within the range open to the sentencing court simply because it might itself have fixed a lower term of imprisonment."

7. We should make it plain that we think in the case of Loureiro the correct test is not whether the sentence was wrong in principle and manifestly excessive but whether it was wrong in principle or manifestly excessive.  In either event this Court can interfere with the sentence imposed by the Magistrate."

20.      As to the approach to be taken in relation to a recommendation for deportation the Court said at paragraph 13:

"Advocate Sette who said everything that could possibly be said for the appellant contends that the learned Magistrate placed too much emphasis on the seriousness of the offence and did not consider all the other mitigating factors which she should have taken into account in deciding whether the first part of the test was met.  But he could not identify that she had gone wrong in the test itself and it seems to us on reading the passage that I have just cited that what she was really saying was that someone who has committed an offence of this kind is not a person whose presence is conducive to the public good in the Island.  In other words she concentrated on the nature of the offence, informing the view that she took.  We cannot say that she went wrong in that analysis, and in the circumstances we think that her decision to make a recommendation for deportation once again falls within that range of permissible decisions with which an appellate court should not interfere."

21.      Accordingly, the questions for this Court are: 

(i)        Did the Relief Magistrate direct himself in accordance with the appropriate legal test; and

(ii)       Was his decision within the range of permissible decisions with which an appellate court should not interfere?  

The submissions on appeal and our conclusions

22.      The Relief Magistrate correctly addressed his mind to the appropriate test prior to making a recommendation for deportation.  Advocate Sette, who described himself as the Appellant's "mouthpiece" for the purpose of this appeal, accepted that the Magistrate directed himself in accordance with the relevant principles.   

23.      Advocate Sette submitted that the Court should be concerned about the fact that the Appellant was unrepresented when the recommendation for deportation was made.  The Appellant had been represented by counsel early in the proceedings before the Magistrate's Court but had elected to dispense with that representation.  It is desirable for any person facing a recommendation for deportation to be legally represented if at all possible, unless it is their wish to be unrepresented.  The Appellant made no complaint himself about the absence of representation below, and we took the view that the arguments on the merits put forward by Advocate Sette were not significantly different from those advanced by the Appellant himself in the Court below.  Accordingly on the facts of this case there was no injustice flowing from the fact that the Appellant was unrepresented below.  However, we did give anxious consideration to all the submissions that Advocate Sette made as amicus curae.  As amicus he was not representing the Appellant but he had met the Appellant and addressed us on all points reasonably open to the Appellant after the Appellant had addressed us himself.

24.      We now consider the decision of the Relief Magistrate.  First, in relation to whether or not the continued presence of the Appellant in Jersey would be detrimental to the public good, the Magistrate had regard to the circumstances of the offence as a significant factor.  The offence was a serious one which warranted a custodial sentence which has not been appealed.  The Relief Magistrate had regard to the Appellant's assessed very high risk of reconviction and the circumstances that gave rise to that assessment.  He had full regard to the report of Dr Engelbrecht and the Appellant's refusal to work with the probation and alcohol and drugs service.  He also took into account the 2014 offences.  The Magistrate was concerned (and in our view entitled to be concerned) about the threat to kill a member of staff at the CLS.  We also note that the Probation officer says in the social enquiry report that, in addition to threat to kill in this case, the Appellant is known to have owned a crossbow (2013) and (2014) has been known to carry knives.  He 'firmly declined' to work with the Probation Service.  The Probation officer had intended to recommend a probation order, working in partnership with the Alcohol and Drugs Service, but the Appellant was clear that he was unwilling to comply with such a proposal.

25.      In our view, the Magistrate was entitled to conclude that the Appellant's continued presence in the Island would be detrimental to the public good.  Indeed, although Advocate Sette argued, effectively on behalf of the Appellant, that he had only been in trouble twice (motoring matters to one side) during his 12 years in Jersey - the 2014 offences of common assault and the instant matters -Dr Engelbrecht's report paints a different picture. 

26.      The report indicated that the Appellant first smoked heroin when he was 17 and began injecting it at 21 and, accordingly, contrary to what he told the Court was committing criminal offences in Madeira involving drugs from a young age.  He was prescribed methadone whilst he was in Madeira which is why he was referred to the Alcohol and Drugs Service in Jersey when he arrived. 

27.      As soon as he arrived in Jersey in 2009 the Appellant needed to be assessed by the Alcohol and Drugs Service.  In July 2009 it was said that he had 'relapsed into heroin use'.  In August 2010 he reported overdosing on heroin, and by November 2010 was using two or three bags of heroin daily.  He was given opioid substitution treatment which continued in 2011.  In February 2011 he was reported as using one to two bags of heroin daily. 

28.      In 2012 he was living with a drug user and had injured himself with a needle.  In April 2012 the Appellant was in a fight with another drug user.  In late 2012 / early 2013 he assaulted his then partner three times - the first occasion (warranting the four month sentence of imprisonment imposed in 2014) when she was heavily pregnant.  In 2013 he was reported as having 'relapsed into daily illicit buprenorphine use'.  At that point he was seeing a substance misuse keyworker and was prescribed antidepressants.  In 2013 the mental health nurse said that he had taken an overdose of an antidepressant medication and he complained that he had no money to live on and, although he had been in Jersey for four years, had "very little chance of finding any meaningful employment".  His partner reported that he frequently got angry and broke things in the house.  In 2014 he was using a new psychoactive substance intravenously.  In 2014 after his release from La Moye prison, he began to use unprescribed buprenorphine again.  In May 2016 he was again injecting two bags of heroin a day and smoking cannabis daily. 

29.      In May 2019 he experienced suicidal thoughts and considered going to the UK to take an overdose of heroin and diazepam.

30.      In October 2020 his urine drug test was positive for cannabis, unprescribed pregabalin and prescribed methadone.  On 22 October 2020 the Appellant was abusive and aggressive to administrative staff at the Alcohol and Drugs Service.  Accordingly, notwithstanding the limited number of Court appearances, the Appellant has been living a criminal lifestyle, particularly in respect of heroin, a dangerous class A drug, for much of the time that he has been living in Jersey.  Dr Engelbrecht is of the opinion that the Appellant suffers from a psychotic illness, possibly drug induced.  He may pose a risk to others should he be non-compliant with antipsychotic medication.

31.      The report of Dr Engelbrecht was in front of the Magistrate and, having regard to its contents and the other circumstances, there was ample evidence for him to conclude that the Appellant's continued presence in the island would be detrimental to the public good.

32.      As to the second aspect of the test, namely whether or not deportation would be proportionate having regard to the rights of the offender and his family under Article 8 of the European Convention on Human Rights as incorporated into domestic law by the Human Rights (Jersey) Law 2000, the Relief Magistrate took into account the length of the Appellant's residence in Jersey (some 12 years), his relations with his children and ex-partner (who he does not see), the fact that he has no close personal connections with any other people in the Island and has lived alone for the last four or five years; and that recently he did agree to leave the Island for three years.  The Relief Magistrate did not expressly take into account what the Appellant tells us in relation to his strong work record and possible difficulties with returning to Madeira where he will be close to his mother and father, but they might have difficulty accommodating him.  It may be that he was not informed of those issues.  Further, he would not have had in front of him the letter from the Appellant's parents to this effect which was provided to us.

33.      The Appellant confirmed to us that he had not seen his children since 2019 and, although he said that he would like to be available for his children if anything happened to his ex-partner, he confirmed that there were no circumstances he was aware of to make this a likely scenario as she appeared to be in good health.  This is not, in any event, a case of an appellant who has a 'genuine and subsisting parental relationship' - a description used in both the Immigration Rules and various authorities (see for example J v Lieutenant Governor of Jersey [2018] JRC 072A). The Probation report shows that in fact the Appellant's work record has been 'substantially disrupted by drug dependence and ill health'.  We find that the Relief Magistrate was entitled to conclude that deportation was not disproportionate having regard to the Article 8 rights of those likely to be affected.   

34.      We have taken into account the fact that the Appellant was not represented before the Relief Magistrate and paid full regard to not only what he told us but what Advocate Sette said as amicus on appeal but, nonetheless, for the reasons set out above we have decided that the recommendation for deportation made by the Relief Magistrate was well within the range of permissible decisions open to him.  Accordingly, this Court should not interfere with his decision and the appeal is dismissed. 

Authorities

Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008. 

Control of Housing and Work (Jersey) Law 2012. 

Dryjanski -v- AG [2009] JRC 041. 

Camacho -v- AG [2007] JLR 462. 

Gomes -v- AG [2019] JRC 157. 

Bunea -v- AG [2019] JRC 056A. 

Human Rights (Jersey) Law 2000

J v Lieutenant Governor of Jersey [2018] JRC 072A.