Jersey Unreported Judgments

2001/130

ROYAL COURT

(Superior Number)

 (exercising the appellate jurisdiction conferred upon it by

Article 22 of the Court of Appeal (Jersey) Law, 1961)

 

7^th June, 2001

 

 

Martin Leslie Brewster

-v-

Attorney General

 

Application for leave to appeal against a total sentence of 2½ years' imprisonment, passed by the Inferior Number of the Royal Court on 5^th January, 2001, following a guilty plea to 3 counts of gross indecency:

 

Count 1	on which count sentence of 2½  years' imprisonment was passed.
Count 2	on which count sentence of 18 months' imprisonment, concurrent, was passed.
Count 3	on which count sentence of 18 months' imprisonment, concurrent, was passed.

The application for leave to appeal was placed direct before the plenary Court without first being submitted to a Single Judge for consideration.

 

Advocate R Tremoceiro for the appellant

J.C. Gollop, Esq., Crown Advocate.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.      On 5th January, 2001 the applicant was sentenced to a total of 2 ½ years imprisonment on three counts of gross indecency.  Count 1 alleged that between 1st August 1999 and 27th May 2000 he had, on diverse occasions, committed acts of gross indecency with Child A, a girl aged six.  Counts 2 and 3 related to a single incident on 28th May 2000 when the applicant committed an act of gross indecency with Child A and with Child B, a girl aged four.   He now applies for leave to appeal against sentence.

Factual Background

2.      In January 1999 the applicant set up home with the mother of Child A.  Child A lived with them and the applicant was therefore in a position of trust towards Child A. 

3.      On 27th May a friend of Child A's mother and her daughter, Child B, aged four, came to stay for the weekend.  The next day, the two mothers went out for the evening leaving the two children in the care of the applicant. 

4.      The following day, in the presence of the applicant and both mothers, Child B said that she had seen the applicant's willy. Later the same day, when asked by her mother, Child B said that she had touched his willy.  The next day both mothers went to see the police.  The applicant was arrested.  Child A was video interviewed but did not make any allegations.  Child B said that she had touched the applicant's penis in return for her sweets and that Child A had touched the applicant's penis first.  When interviewed, the applicant said that he was getting changed in the bathroom and was naked when the children entered the room.  He said that Child A had grabbed his penis and had also tried to put Child B's hand on his penis.  He denied that he had told Child B to touch his penis or that he had induced the children's conduct by withholding their sweets unless they touched him.  He was released pending further enquiries.  Subsequently Child A made certain allegations to her mother and the mother also discovered that the applicant had been accessing pornographic web sites on her home computer.  As a result she reverted to the Police.  The applicant was interviewed again on 19th June.  Whilst accepting that certain contact had taken place, he denied any offence.  The applicant was subsequently informed that, although the file would remain open, there was insufficient evidence to charge him. 

5.      On 21st August, the applicant contacted the investigating officer and said that he wished to "come clean".  He attended at Police Headquarters on 23rd August and was interviewed.  He said that there were three occasions when indecency had occurred with Child A prior to the incident on 28th May.  The first was when, whilst in the bath with Child A, he allowed Child A to touch his penis and to wash his penis with a flannel.  The applicant maintained that it was Child A who had instigated this contact but he admitted that he did not stop her. 

6.      The second occasion was again whilst they were both in the bath and Child A touched him on the testicles.  Child A enquired why men had testicles and ladies did not and the applicant claimed that he answered that the testicles made milk for making babies.  He said that the child then asked how the milk came out and the applicant told her and showed her by masturbating.  He stated that Child A then masturbated him.  Whilst his penis was erect during this, he did not ejaculate.  The applicant maintained that he had not invited Child A to touch him but he had allowed her to touch him and did not stop her from doing so. 

7.      The third occasion was again whilst he was in the bath and Child A came running into the bathroom naked.  He said that the child tried to masturbate him again and touched his penis with her mouth or tongue, either on the top or the side of his penis.  He said that he had told Child A to stop.  When questioned further about this particular incident, the applicant admitted that he must have had an erection and that he achieved the erection either by playing with himself or letting Child A play with him.  He said that, by this stage, he was frightened that Child A would "spill the beans".  He therefore started to buy her presents and sweets, making a conscious effort to try to spoil her, hoping that the memory of what had occurred would gradually fade away.  It is these three incidents which give rise to Count 1 on the indictment. 

8.      So far as the incident which occurred on 28th May was concerned, the applicant maintained that Child B had pointed at him and said "What's that?" to which Child A had replied "Oh its only a willy".  Child A had then touched the applicant's penis and Child B had then reached out and held it.  The applicant admitted that Child B had held his penis exactly as Child B had described during the taped video interview conducted with her.  He maintained that, on that occasion, his penis had not been erect and that the touching had lasted a matter of seconds by both children.  These facts gave rise to Counts 2 and 3 on the indictment.

9.      It was on this version of events that the Court was requested by both the Crown and the defence to sentence the applicant.  The Crown moved for a total of 3 ½ imprisonment years made up as to 2 years on Count 1 and 18 months on Counts 2 and 3 (concurrent) but consecutive to Count 1.  As we have said, the Court imposed a total of 2 ½ years.  It did this by increasing the sentence on Count 1 to 2 ½ years and making all the sentences concurrent.   

Grounds of Appeal

(i)         The Social Enquiry Report

 

10.    Mr Tremoceiro bases this application on four grounds.  The first is that the Court below refused him an adjournment to allow for the obtaining of a report from an expert in connection with certain opinions expressed in the social enquiry report.  His complaint in respect of the social enquiry report is that it was prepared by the probation officer on the basis of the version of events given by the two mothers in their police witness statements, which in turn was based upon what Child A and Child B had said to them respectively.  This went beyond what the applicant had admitted, which was the agreed basis for sentencing.  In particular, he had denied any inducement in the form of promises of sweets and had denied any encouragement to the children to do what they had done. 

11.    In the report the probation officer referred to the well known tendency of sex offenders to seek to blame others or external factors or try to justify, excuse or minimise their behaviour.  The report is written, says Mr Tremoceiro, on the premise that, insofar as he did not admit the full extent of the allegations in the statements in the prosecution case file, the applicant was "minimising" his involvement.  For example, in paragraph 14 it is stated:-

"Although Martin Brewster admits to these offences, this admission is limited in as much as he denies full responsibility for encouraging and teaching [Child A] to masturbate him, eventually saying that he 'must have done'". 

Further on in the same paragraph the report says:-

"The incident on 28th May 2000, which led to these offences being discovered, is minimised by Mr Brewster, which, as stated above, is a common reaction from sex offenders when confronted with their deviant behaviour".

Another example is in paragraph 20 where the report says:-

"When discussing these offences and surrounding events with Mr Brewster, he generally maintained a minimising viewpoint and although he did not attempt to justify his behaviour, he did endeavour to displace responsibility for it".

12.    Mr Tremoceiro referred to the unreported English case of R -v- D.S. (6th November 2000) WL 1720232.  That was a case where D.S. originally faced eight counts alleging a variety of sexual offences against three children.  Ultimately he pleaded guilty to only two very minor offences, one against a step-daughter and the other against a step-granddaughter.  The probation report and another report before the sentencing court were clearly based entirely on the scope of the offences as disclosed in the prosecution case rather than on the two minor offences to which he had pleaded guilty.  The Court of Appeal said this:-

"This Court is conscious of the difficulties facing both a probation officer preparing a report in circumstances such as these and a judge in passing sentence.  However, it is not acceptable that an offender should be sentenced on any basis other than for offences of which he has been convicted, either by a jury or upon his own admission.  Those who write pre-sentence reports should ascertain the charges upon which the offender is to be sentenced and the factual basis upon which the judge is to sentence.  They should understand it is unacceptable to make judgments on an offender based upon allegations which the offender denies and which have not been proved against him.  The Court should be scrupulous in ensuring that they sentence only for the offences of which the offender has been convicted".

13.    We agree that, so far as possible, the social enquiry report should be prepared in the light of the facts upon which the Court will be invited to sentence an offender.  A report prepared on the basis of a wholly different set of allegations is unlikely to be of much assistance.  But such matters are often resolved only at the last minute and it is therefore impossible for preparation of reports always to reflect exactly what has been agreed. 

14.    The first point to make is that the fact that an offender does not like the views expressed by a probation officer is no ground for seeking a further report.  A probation officer is an independent expert whose views are made available for the assistance of the Court.  Such views may be adverse to the prosecution or to the defence.  Either may comment on the contents of the report but mere dissatisfaction with the views expressed is no reason for further reports to be ordered at the instance of either side. 

15.    Where the facts of the offence referred to in the social enquiry report differ from the facts upon which the Court is being invited to sentence, it is a matter of discretion for the sentencing Court as to how to proceed having regard to the nature and degree of the differences.  If the differences are such as substantially to affect the usefulness of the report, the Court may well decide that a new report should be obtained.  We note that that was done in R -v- D.S..  However the report would be a new one ordered by the Court.  In the case of a social enquiry report, the Court would probably order a further report to be prepared by a different probation officer unless it thinks that a report from a different discipline would be appropriate for the particular case.  The relevant expert would therefore be reporting directly to the Court and accountable to the Court.  We do not think that the right response to a defective social enquiry report is for the defendant to be entitled to obtain a report from an expert instructed by him.  That is to misunderstand the nature of reports prepared for sentencing purposes at the Court's request. 

16.    But in the vast majority of cases we do not think that it will be necessary to order a new report.  The correct way of dealing with inaccuracies in a social enquiry report in such cases is for counsel to make submissions.  Clearly where it is shown by counsel that there is a factual error in the report, the Court will take this into account and proceed accordingly when it considers the weight to be attached to any opinions expressed in the report.  In some cases it may seek clarification from the author of the report who, in Jersey, is usually present in Court.  In essence, it is a matter of discretion for the sentencing Court as to whether it thinks that the interests of justice require a new report or whether it can proceed by way of submission and comment.  We have considered carefully the criticisms of the report in this case made by Mr Tremoceiro.  In our judgment those criticisms come nowhere near the level of seriousness which would have required the production of a new report.  They were all matters which could be perfectly satisfactorily dealt with by means of submissions made during counsel's plea in mitigation.  We conclude therefore that the Inferior Number were quite entitled to refuse to order a further report as requested. 

17.    For the sake of completeness we should add that, unlike in the case of R v D.S., where the judge expressly relied when pronouncing sentence upon erroneous parts of the reports, there is no evidence that the Court below was in any way misled by the contents of the social enquiry report. 

(ii)         Inadmissible evidence in the Crown's summary of facts

 

(iii)        Prejudicial material in the Crown's summary of facts

 

18.    The second ground of appeal is that the summary of facts placed before the Court by the Crown Advocate contained inadmissible evidence which unfairly prejudiced the applicant.  Mr Tremoceiro referred to four occasions when one or other of the children is reported to have made comments to her mother about what had happened, which comments were then built in to the written statements made by the mother to the police so as to form part of the prosecution case file.  Parts of these statements were inconsistent with the applicant's version of events upon which he was to be sentenced.  The mother's statements were hearsay and therefore inadmissible; they were also prejudicial. 

19.    The third ground is very similar and we can conveniently take them together.  Mr Tremoceiro objects to the fact that the summary of facts included reference to the applicant having surfed pornographic web sites on his computer when no charges had been brought in that respect and there was no evidence whatsoever that the pornography was child pornography. 

20.    In the Court below, Mr Tremoceiro asked that the Court adjourn sentencing to a differently constituted Court before whom the inadmissible and prejudicial material in the summary of facts would not be included.  The Court rejected that application and Mr Tremoceiro says that it was wrong to do so. 

21.    A not dissimilar point was taken by counsel in the case of Cooper -v- Attorney General (Jersey Unreported 10th January 2001).  In that case counsel asserted that the Crown Advocate had included material which was not strictly necessary and was unduly prejudicial.  The Court, sitting on appeal from the Inferior Number, gave consideration to the duty of the Crown at a sentencing hearing and said as follows:-

"16.    In our judgment great caution has to be exercised in referring to the duties of prosecuting counsel in England in considering sentencing matters.  This is because the system in Jersey is quite different.  In England the prosecution are completely neutral when it comes to sentencing and play no part.  In Jersey, on the other hand, the Attorney General, usually nowadays appearing through a Crown Advocate, is duty bound to recommend a particular sentence to the Court.  In doing so he sets out any mitigating and aggravating features and is entitled to make comment on the nature of the case in order to set the scene for his conclusions.  These comments may very well include some characterisation or description of the defendant's conduct and of the defendant and his or her attitude towards the offences. 

17.      The Crown Advocate, on behalf of the Attorney General, is however fulfilling a quasi-judicial role.  It is incumbent upon him to be measured in his language.  Most importantly, there is a heavy duty upon him to be both fair and accurate.  He must satisfy himself that he can justify any description or assertion which he makes and that it is a fair reflection of the case.  However, within these bounds he is free to comment on the case in such manner as he thinks fit to assist in developing his conclusions. 

18.      On balance we do not think that anything Mr O'Connell said in this case went beyond the bounds of what was permissible.  Even if they did, that would not, of itself, be a valid ground of appeal.  We have an adversarial system; it is always open to defence counsel to take issue with something said by the Crown and the Court can then consider the respective arguments. 

19.      Furthermore, the Court consists of experienced members and can be expected to ignore emotive language and concentrate on the essential facts and the real issues.  It is only if there is evidence that the Court has been led into error as to the facts, because of what has been said by the Crown, that a valid ground of appeal may arise.  ..."

22.    We endorse what was said by the Court in Cooper.  We see no objection to the Crown summarising what the two children were alleged to have said to their mothers.  It is part of the overall picture.  Indeed it was not possible sensibly to introduce the history of how the offences came to light without recounting this aspect.  In any event it is a misconception to suggest that, at a sentencing hearing, the prosecution can only include material which would be strictly admissible in the case of a trial on a not guilty plea.  The Crown is not so limited.  The Court is entitled to receive the fullest picture consistent with the Crown's duty as explained in Cooper. 

23.    Indeed it is often the case that the Crown and the defence do not agree on exactly what happened but the Crown is willing for the defendant to be sentenced on his version of events.  In these cases it is normal practice for the Crown to summarise what its witnesses say, spell out what the defendant says and make clear to the Court which version it is inviting the Court to sentence upon.

24.    We see nothing wrong with what was included in the summary of facts in relation to the children's statements to their mothers.  The Crown Advocate made it clear that the Court was being asked to sentence on the basis of the facts admitted by the applicant and the Court expressly said that it was doing this when passing sentence.

25.    As to the pornography, this formed part of the narrative because it was the discovery that the applicant had been looking at pornography which was one of the factors which caused the mother of Child A to revert to the police after the first interview and led therefore to the second interview of the applicant.  We think that the Crown was somewhat grudging in its phraseology when accepting that there was no evidence that the applicant had been looking at child pornography as opposed to ordinary pornography, but we note that no reference to the question of pornography was made by the Crown in its final conclusions on sentence nor by the Court in its judgment. 

26.    Ultimately it is a matter of judgment for the Crown as to what it puts into its summary of facts and conclusions.  It is not an agreed document nor is it a document to be negotiated between the Crown Advocate and defence counsel.  It is a document whereby the Crown sets out its stall and expresses its view of the matter for the assistance of the Court.  But the Crown must always bear in mind its overriding duty to the interests of justice and the need to be both fair and accurate.  In particular the Crown Advocate must satisfy himself that he can justify any description or assertion which he makes and that what he says is a fair reflection of the case.  However, we have an adversarial system and the remedy of the defendant, if he does not like what is said by the Crown, is to make submissions to the Court.  If these submissions are correct, the Court will no doubt accept that it should ignore the part to which objection is taken.  All the members of the Court are familiar with sentencing hearings where this has taken place. 

27.    Furthermore we repeat what was said in Cooper, namely that the Court is composed of experienced members under the presidency of a judge of law.  It is perfectly capable of ignoring extraneous and prejudicial matter and concentrating on the essential facts and the real issues. 

28.    In the circumstances we have no doubt that the Court below was quite right to reject Mr Tremoceiro's application that sentencing be adjourned to a differently constituted Court. 

29.    We would however accept that one paragraph of the Crown's summary was not fair and accurate and fell below the standard which is required.  The Crown had made it clear that sentence was to be passed on the applicant's version of events which included the fact that he had not induced the conduct by the use of sweets etc. nor had he in any way encouraged the physical acts which took place.  Despite this the Crown said at paragraph 25 of its summary:-

"However, it is clear from his repeated comments during that interview, to the effect that he did not invite or encourage the children to engage in the sexual conduct ... that he has sought to minimise the offending ...".

The only natural meaning of this is that the applicant was minimising the offending by asserting that he did not invite or encourage the children.  This in turn can only mean that the Crown was implying that he did invite or encourage them; that being quite contrary to the basis upon which the Crown was inviting the Court to proceed.  The passage should not have been included in this form.  During the hearing of this application, the Crown Advocate very realistically accepted that perhaps this paragraph had not been phrased as well as it should have been.  Nevertheless the fact that the Crown's summary contains an error is not in itself any ground of appeal.  It is only if there is evidence that the Court has been led into error as to the facts, because of what has been said by the Crown, that a ground of appeal may arise. 

(iv)        Errors of fact in the judgment

 

30.    The fourth ground relied upon by Mr Tremoceiro is that two errors of fact were made by the Court when it passed sentence.  The first was when the Court said "This defendant admitted masturbating in front of one of the children to the point of ejaculation ...".  It is accepted by both the Crown and the defence that there was no allegation of the defendant having ejaculated during any of these incidents.  The second error referred to is when the Court said "He also admitted allowing the child briefly to touch his penis with her mouth or tongue" (emphasis added).  Mr Tremoceiro asserts that the defendant at all times made clear that he had told Child A to stop the moment this occurred and Child A had stopped.  He had not therefore "allowed" the child to touch his penis in this way.  Nor had he "tolerated it", as referred to elsewhere in the judgment. 

31.    We agree that the first point was an error of fact.  As to the second criticism, we think that this is to a considerable degree a matter of interpretation but we are content for present purposes to proceed on the assumption that the Court below went too far in categorising what the Defendant admitted having done as "allowing" the event to take place. 

Conclusions

32.    In summary, we have dismissed most of the applicant's grounds of appeal but we have found that two errors of fact were made by the Court when pronouncing sentence.  We therefore thought it right to give leave to appeal on the basis that, in the light of those errors, it was proper for the matter to come before the Superior Number as a Court of Appeal.  We therefore turn to consider the correct sentence for the offences. 

33.    We begin by commenting on the submission that there is a general sentencing band of eighteen months to three years for offences of indecent assault and gross indecency.  We think that to put it in this way gives a misleading impression and suggests that there is some form of onus on a Court to justify stepping outside that bracket.  Offences of this nature vary almost infinitely in their seriousness.  In some cases less than eighteen months will suffice; in many more cases, sentences substantially in excess of three years are required.  A study of sentences passed by the Court in recent times in relation to child abuse shows many cases where sentences well in excess of three years have been passed. 

34.    Furthermore we think that care must be taken in placing weight on older cases.  In recent years society has become ever more aware of the level of child abuse and the serious long term consequences which are so often suffered by those who have been abused.  In our judgment the Courts must take note of these factors and pass sentences which reflect them and which reflect the abhorrence which all right thinking members of society have for the corruption of young children.  We hope to hear less of an eighteen month to three year sentencing band in future.  The correct approach is to consider all the circumstances of the case and arrive at the correct sentence which in some cases may fall within such a bracket but in many cases will fall outside it. 

35.    The offending in this case was not at the top end of the scale.  Nevertheless we regard it as serious.  We must consider the appropriate sentence by reference to the defendant's version of events.  But the fact remains that he was in a position of trust and he betrayed that trust in relation to a young child of six.  Nor was the offending confined to one incident.  The first incident may be said to be comparatively minor.  Nevertheless, knowing what had happened on that occasion and knowing that he was in a position of trust in relation to Child A, the applicant had another bath with her, masturbated in her presence and then allowed her to masturbate him.  He did not at any stage ask her to stop.  Despite this incident, he got himself into a position where a further incident took place when he either masturbated himself in her presence or allowed her to masturbate him again.  On this occasion she then touched his penis with her mouth or tongue and only then did he tell her to stop.  Finally there was the admittedly less serious incident of 28th May, but this did involve a second child.

36.    In mitigation he can of course point to his good character for so many years, his plea of guilty (which spared the children from giving evidence), the fact that he did not offer any inducements or threats, and the fact that he would probably not have faced any charges had he not come forward voluntarily to confess after the police had indicated that there was insufficient evidence to proceed.  All these stand him in good stead. 

37.    Nevertheless this was a serious breach of trust in relation to a child of six coupled with one incident in relation to a child of four.  We think that the two errors of fact in the judgment were of no significance in relation to the outcome.  It is the unanimous view of the Jurats that a sentence of 2 ½ years was not a day too long for these offences.  That is why, having, in accordance with customary practice, treated the application for leave as the hearing of the appeal, the Court dismissed the appeal.

 

Authorities

Cooper-v-AG (10^th January, 2001) Jersey Unreported CofA; [2001/6]

R-v-D.S. (2000) WL 1720232.