Man charged with assault denied 'compensation' for time behind bars

Wednesday 16 May 2018

A man convicted of assault has been told he cannot "barter" to have his community service order reduced as compensation for being placed in custody while a separate assault charge against the same victim was being investigated.

Marcio Joel Pinto Mesquita was sentenced for common assault to a 70-hour community service order and a nine-month probation order by the Magistrate's Court on 7 July 2017.

On 10 October 2017, he was charged with a separate common assault against the same person. He pleaded not guilty, but was refused bail, as the Court felt there were no conditions they could impose "to manage the risk it believed he posed to the victim." He was therefore remanded in custody and a trial date set for 13 November 2017.

On 10 November 2017, the prosecution told the Magistrate's Court they had no evidence to offer in the case and the charge was dismissed. Mr Mesquita was then released, having spent four weeks and two days in custody.

Mr Mesquita said that due to the time he spent in custody, he had lost his job and his car had been stolen. He said his life had been "drastically and adversely affected" as a result and that he felt "aggrieved for spending so much time in custody for an offence he adamantly denied committing." He therefore applied for his original community service - of which he still had 30 hours to complete at the time - to be revoked, taking into account the time he had spent in custody.

Pictured: Mr Mesquita first appealed to the Magistrate's Court for his community service order to be revoked.

His representative, Advocate Ian Jones, argued that it would be in the interest of justice to do so as Mr Mesquita had lost his job while in custody and had been "deprived of the opportunity during that period of carrying out any further community service." He also said that granting Mr Mesquita's appeal "would serve to focus the minds of the prosecution, when considering a charging decision, that such a consequence might ensure."

Advocate Jones added and that if an alleged perpetrator is remanded into custody and later released without charges being pursued "there is no form of redress for that period of ‘unnecessary incarceration'.”

The Assistant Magistrate admitted he had jurisdiction to revoke the order but declined to do so. Mr Mesquita appealed this decision to the Royal Court but Commissioner Julian Clyde-Smith dismissed the application.

He noted that the Assistant Magistrate had not been prepared "to allow a system of bartering or offsetting to arise" by granting Mr Mesquita his application. While the Assistant Magistrate had jurisdiction to make the order, the Royal Court Commissioner said he was "perfectly entitled" to refuse to do so" if it meant giving Mr Mesquita compensation for the time spent he had spent in custody on "a quite separate matter."

Pictured: Mr Mesquita spent four weeks and two days in custody but both Courts refused to take it into account to revoke an order imposed in relation to a previous assault.

The Royal Court Commissioner wrote that there was "nothing to suggest that [Mesquita's] remand in custody was improper in any way" and that like any other defendant in that position, he had "no redress for the time he had spent in custody in relation to the charge."

He described the fact both of the charges arose from complaints from the same person as an "unusual feature", adding: "No doubt in the appellant’s mind, if the second complaint was false, it would seem just to him for a sentence on the conviction to be reduced. The Court has no information as to why no evidence was offered on the charge, but certainly, there has been no finding that the allegation against him was false."

The Royal Court Commissioner concluded that if the Assistant Magistrate had granted Mr Mesquita's first application, it would have meant he thought the time he had spent in custody was "improper and that he was entitled to be compensated." "There is no basis upon which such a finding could have been made," he wrote. "But even if the appellant was entitled to compensation in some way, it bore no relation to the conviction and it would have been quite wrong for any kind of set off to be applied. 

"As the Assistant Magistrate said, it is in the interests of justice that offenders serve, and are seen to serve, the punishment imposed upon them for offences they have committed."