A BRAZILIAN butcher has lost an appeal against the severity of his eight-year prison sentence for killing a Wexford man who had assaulted and racially abused him earlier that evening.
Juraci Da Silva (36), with an address at Park Lane Apartments in Waterford, had admitted killing James ‘Jay’ Banville at New Street in Waterford city in the early hours of October 8, 2016, but denied it was murder.
The Central Criminal Court heard that Da Silva had been assaulted twice earlier that evening by the deceased and his friend. The first assault was accompanied by racial comments and the second by sexual comments “of a very damaging nature”, the trial heard.
After the second assault, the two men moved to the top of the street and turned down another street, while Da Silva, who had armed himself with a knife, decided to go after them. Mr Banville died from a single stab wound to the heart.
Da Silva was found not guilty of murder, but guilty of manslaughter. He was also found not guilty of assault causing harm to the deceased’s friend.
Sentencing him to eight years imprisonment in November 2017, Mr Justice Michael White said Da Silva knew the dangers of knives, due to his job as a butcher in a meat plant. Da Silva, who had no previous convictions and three young children in Brazil, had come to Ireland to work in the factory one month before the fatal incident.
Upholding Da Silva’s sentence in the Court of Appeal last Tuesday, Mr Justice John Edwards said the basis on which the jury returned a verdict of manslaughter, rather than murder, was not clear.
However, Da Silva was sentenced on the basis that he had been subjected to substantial provocation involving assaults and taunts of a “racist and sexual kind” on two separate occasions shortly before the fatal encounter.
Mr Justice Edwards said the sentencing judge selected 14 years as the headline sentence before applying a six-year discount for the “very substantial” mitigating factors. These were the provocative assaults on Da Silva, the fact he was of previous good character and the fact he would be required to serve a sentence away from his family where he does not speak English.
He said the court did not believe the sentencing judge “over assessed” the gravity of the case. The incident resulted in the “wholly unnecessary” taking of a young man’s life which had devastated the victim’s wider family. It was the result of a confrontation involving a potentially lethal weapon of which Da Silva ought to have been aware.
Mr Justice Edwards said the sentencing judge was criticised for commenting that Da Silva had a knowledge of the dangers of knives, when there was no specific evidence that he had such knowledge. However, the court rejected this argument.
It was reasonable to infer, the judge said, that an accused who was a butcher and who used knives daily could not have failed to appreciate the “potential lethality of a kitchen knife” when used as a weapon.
Mr Justice Edwards, who sat with Ms Justice Marie Baker and Ms Justice Isobel Kennedy, said the court could find no error in principle and accordingly dismissed the appeal.
Counsel for Da Silva, Colman Cody SC, said his client was a man of very slight build, who had been subjected to two assaults which were “racially motivated” and “sexually demeaning” earlier that evening. But the sentence Da Silva was given would usually be reserved for persons “embarking” on criminality or persons who used a knife in a sustained assault or burglary, Mr Cody had submitted.