ROYAL COURT
(Samedi Division)
10 December 1998
Before: F C Hamon, Esq., Deputy Bailiff, and
Jurats Potter and de Veulle
Magistrates Court Appeal
Alvaro Paulo Gouveia
-v-
AG
Appeal against a sentence of 6 months Youth Detention, passed on 14 October 1998, following a guilty plea to 1 count of unlawful sexual intercourse.
Appeal allowed, sentence quashed; 6 months binding over Order substituted.
Mrs S Sharpe, Crown Advocate
Advocate C M Fogarty for the Appellant
JUDGMENT
THE DEPUTY BAILIFF: This appeal concerns a young man of 18, of previously excellent character, infatuated with a 15 year old girl who was sexually promiscuous having already had an abortion in a previous relationship. Her parents, we are told, are heroin addicts who allowed this relationship to flourish.
During the course of investigating the drug abuse a police constable apparently warned the pair as to their future behaviour, but they had paid no heed.
As was said in the English Court of Appeal case of R -v- Taylor, Roberts & Simons (1997) 64 Cr.App.R. 183 cases of unlawful sexual intercourse cover a wide range of offending. We recently had a case in this Court of a 47 year old man who had sexual intercourse with an underage girl. They said that they were infatuated but the Court found that quite abhorrent.
The guidelines set out by Lawton L J in the English Court of Appeal judgment we think are extremely relevant and may be helpful in future cases and we are now going to set them out as they were reported in that case:
"What does not seem to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having unlawful sexual intercourse with a girl under the age of sixteen. At one end of the spectrum is the youth who stands in the dock, maybe sixteen, seventeen or eighteen, who has had what started off as a virtuous friendship with a girl under the age of sixteen. That virtuous friendship has ended with them having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, a schoolmaster or social worker, who sets out deliberately to seduce a girl under the age of sixteen who is in his charge. The penalties appropriate for the two types of cases to which I have just referred are very different indeed. Nowadays, most judges will take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentences of a punitive nature. What is required is a warning to the youth to mend his ways. At the other end, a man in a supervisory capacity who abuses his position of trust for his sexual gratification, ought to get a sentence somewhere near the maximum allowed by law, which is two years imprisonment. In between there come many degrees of guilt. A common type of offender is the youth who picks up a girl of loose morals at a dance, takes her out into the local park and, behind the bushes, has sexual intercourse with her. That is the kind of offence which normally is dealt with by a fine. When an older man in his twenties, or older, goes off to dances and picks up a young girl, he can expect to get a much stiffer fine and, if the girl is under fifteen he can expect to go to prison for a short time. A young man who deliberately sets out to seduce a girl under the age of sixteen can expect to go to detention. The older man who deliberately sets out to do this can expect to go to prison. Such is the wide variety of penalties which can be applied in this class of case.
Looking at the facts of this case and the detailed probation report which was seen by the learned Magistrate, that recommended a binding over order, we feel that the six month youth detention sentence passed is not appropriate in this case. We will allow the appeal and bind the appellant over for a period of six months.
Authorities
R -v- Taylor, Roberts & Simons (1997) 64 Cr.App.R. 183