Jersey Unreported Judgments

2001/3

5 pages

ROYAL COURT

(Samedi Division)

 

5^th January, 2001

 

Before:    Sir Philip Bailhache, Bailiff; and

                                                      Jurats Quérée and Le Brocq.

 

 

The Attorney General

 

-v-

 

Martin Leslie Brewster

 

3 counts of                                                             gross indecency (counts 1-3)

 

Age:    46.

 

Plea: Guilty

 

Details of Offence:

 

Two female children aged 6 and 4 respectively were left in the care of Brewster whilst the mothers went out.   Brewster was effectively in the position of a parent to one of the children, Child A, as this was the child of Brewster's partner.   The following morning, the other child, Child B, stated that Brewster had told her to touch his penis.   The mother of Child A was concerned at such a comment as her daughter had, approximately 6 or 7 weeks previously, made a similar comment.  The mothers reported their concerns to the Police and Brewster was subsequently arrested.   The two children were video interviewed.   Child A made no disclosures of any inappropriate conduct or touching between herself and Brewster.    Child B disclosed that she had touched Brewster's penis in return for sweets, although Child A had touched the penis first of all.   When interviewed, Brewster admitted that the children had come into the bathroom when he was getting changed and that, whilst the children had tried to touch his penis, he denied having told either child to touch his penis, and further denied inducing the children's conduct by withholding their sweets. Subsequent comments made by Child A to her mother to the effect that she had come into contact with Brewster's penis orally resulted in him being interviewed again.   He, once again, denied the allegations, although he admitted that Child A had come into the bathroom when he was naked and that the child had made to grab his penis in an attempt to lick it, but he had not allowed this to occur.  He also admitted accessing pornographic Websites, but denied downloading any images depicting young children.  

 

He was, once again, released pending further enquiries and was subsequently advised by the Police that, whilst the file would remain open, due to insufficient evidence no charges would be brought against him.   However, approximately 6 weeks later, Brewster contacted the investigating Officer and stated that he wanted to make a confession.   Arrangements were, therefore, made for Brewster to attend voluntarily. He was then interviewed at length during the course of which he admitted that during a low, depressed period of his life, he was looking at "bizarre" sites on the Internet and masturbating.  It was during this period of time that, whilst in the bath with Child A, he allowed Child A to touch his penis and to wash his penis with a flannel.   On another occasion, he showed her how to masturbate him and allowed her to masturbate him without him ejaculating.  On another occasion, Child A came into the bathroom and, according to Brewster, tried to masturbate him, then she probably touched his penis with her mouth or tongue.   He stated that he had immediately told Child A not to do that, but admitted that, at the time, he had an erection which had been achieved either by playing with himself or letting Child A play with him.   He denied that he had asked or encouraged Child A to act in this way and denied offering her any inducements, although he admitted that he subsequently made a conscious effort to buy her presents and sweets in an effort to spoil her so that her memory of events would fade (these were the facts which gave rise to Count 1).

 

In so far as concerns the incident which gave rise to his original arrest (Counts 2 and 3), Brewster stated that the two children had come into the bathroom and that both children had touched his penis, albeit for a matter of seconds.   Again, he disputed offering any inducement or telling the children to act in this manner.

 

These offences involved a blatant breach of trust.   Whilst Brewster had accepted full responsibility for the offences, his repeated comments during interview and to the Probation Officer, to the effect that he did not invite or encourage the children to engage in the sexual contact, resulted in Brewster minimising the offending.   Brewster sought to describe the offences as a short term problem which occurred as a result of a "mid-life crisis".   He, therefore, did not accept that he was a sex offender.

 

It is to be noted that Defence Counsel made an application for an adjournment at the outset of the hearing on the grounds that Brewster did not agree with the Social Enquiry Report.  He sought an adjournment to obtain "an independent second opinion" from a Forensic Psychologist.   The Court's decision was that the matters which Brewster took issue with were all matters which could properly be dealt with by Defence Counsel in his submissions.   The matters sought to be raised were an inappropriate function of an Expert Report.   The application for adjournment was refused. 

 

Defence Counsel then submitted that the Crown's Summary of Facts contained inadmissible evidence and that, accordingly, the Court as presently constituted should refrain from sentencing his client as they had read the Crown's Summary of Facts.   The Court rejected this application, stating that the Crown was entitled to include in the Summary of Facts matters which were disputed by the Defendant, provided the Defendant's position was clearly set out.   The Court concluded that there was nothing within the Crown's Summary of Facts which was unfair or prejudicial to the Accused.

 

Details of Mitigation:

 

Brewster had substantial mitigation available to him.   He was aged 46 and a first offender, therefore the offences were out of character.    Despite being told that no charges would be brought against him, he attended voluntarily at the Police Station  to unburden himself.   He was, therefore, to be sentenced on the basis of his confession.   He had entered guilty pleas which carried greater significance in such cases.

 

Defence Counsel contended there was no premeditation, no inducement and no force or threats towards the victims.   The incidents themselves were of a short duration.  Defence Counsel also suggested that the Court should have regard to the totality principle in considering the appropriate sentence.

 

Previous Convictions:   None.

 

Conclusions:               Count 1:                               2 years' imprisonment.

                      Count 2:   18 months' imprisonment, consecutive.

                      Count 3:   18 months' imprisonment, concurrent.

                      TOTAL: 3½ years' imprisonment

 

Sentence & Observations of Court:

 

                      Count 1:   2½  years' imprisonment.

                      Count 2:   18 months' imprisonment, concurrent.

                      Count 3:   18 months' imprisonment, concurrent.

                      TOTAL: 2½ years' imprisonment.

 

It was agreed by both Counsel that Brewster should be sentenced on the basis of his confession and the Court agreed that this was the appropriate way of proceeding.  Brewster had admitted masturbating in front of the child and permitting a child to masturbate him, and also touch his testicles.   He also admitted to letting the child touch his penis with her mouth.   He claimed that the had not encouraged or induced the children to act in this way, but to tolerate such behaviour is serious enough in itself.   Such conduct is to be viewed with abhorrence by right thinking members of society.   Such offending results in the corruption of the young child and the corruption of the trust which children of that age have in adults.   The offences were aggravated because he was in a position of trust.   However, the Court acknowledged that he had substantial mitigation as he had attended voluntarily and unburdened himself after being told no charges were to be brought.   He was a first offender and had pleaded guilty.   In the light of those matters of mitigation, the Court found able to slightly reduce the Conclusions so as to place the offending in its proper context.  

 

 

                                               J.C .Gollop, Esq., Crown Advocate

                                        Advocate R. Tremoceiro for the Defendant.

 

 

JUDGMENT

 

THE BAILIFF:

 

Judgment on preliminary application by the Defendant for an adjournment to allow time for the preparation of an expert's report in response to the Social Enquiry Report prepared for the Court.

 

1.    Sometimes the Court is assisted by experts' reports in determining what is the fair and proper sentence to impose in any particular case.  What has happened here - as made clear in the arguments submitted to us by counsel for the defendant - is that after receipt of the social enquiry report, prepared by the Probation Officer, the defendant took exception to part of its contents and conclusions, as being in his view damaging to his position and as having a possibly negative impact upon the sentence which he is likely to receive.  It is said that the report impeaches the defendant's credibility and his motives.  Mr. Tremoceiro for the Defendant has accordingly asked the Court to adjourn so that a forensic psychologist can be employed at public expense to produce a further report with a view to informing the Court about the defendant's truthfulness in a number of respects but particularly about his remorse.

 

2.    In our judgment this is an inadequate and inappropriate reason for requesting an expert report.  All the matters which have been raised by counsel in relation to the report of the probation officer can be addressed fully by him in his submissions in mitigation on behalf of the Defendant.  We do not think it is appropriate therefore to adjourn this matter for the production of a further expert report and the application for an adjournment is accordingly refused.

 

Judgment on preliminary application by the Defendant for an adjournment, to allow sentencing before a differently constituted Court, after objection was taken by the defence Counsel to parts of the summary of the facts, placed before the Court by the Crown.

 

THE BAILIFF:

 

1.    Objection has been taken by Counsel to parts of the Summary of Facts which have been placed before the Court by the Crown Advocate.  In particular, Mr. Tremoceiro has objected to a number of passages setting out accounts given by the mother of one of the children which are not accepted by the Defendant.  The Crown is entitled in our judgment to include in the Summary of Facts matters which are disputed by the Defendant provided of course that the Defendant's position in relation to each such matter is fully explained.  The Crown should naturally be careful not to include material which might unfairly prejudice the mind of the sentencing Court and discretion should therefore be exercised.  The important consideration however is that the Court is given the full picture, that is, an account of the Defendant's conduct and of his offending viewed from every relevant perspective.  We think that there is nothing in the Crown's Summary of Facts in this case which is unfairly prejudicial to the Defendant.  We therefore refuse the application to adjourn the sentencing to another Court.

 

 

JUDGMENT

 

THE BAILIFF:

 

1.    Both Counsel agreed that the Defendant should be sentenced on the basis of his confession.  We also agree in this case that that is the proper approach.

 

2.    This Defendant admitted masturbating in front of one of the children to the point of ejaculation and allowing that child to touch his testicles and to masturbate him.  He also admitted allowing the child briefly to touch his penis with her mouth or tongue.  He claimed that these actions of the child were not encouraged or induced by him, but to tolerate this activity is serious enough.  Offences of indecency involving children are regarded by all right thinking people with abhorrence.  The removal of a child's innocence and the corruption of the trust which children naturally feel for adults are so serious that, other than in exceptional circumstances, they must be punished with imprisonment.  The offences committed by Brewster were aggravated by the fact that with regard to one child he was in the position of a parent.

 

3.    There is however substantial mitigation available to him.  He had been told by the police that he was not to be prosecuted in relation to the initial complaints made against him, yet he attended voluntarily at the Police Station and unburdened himself of the matters which have brought about this prosecution.  He is aged 46 and is a first offender.  He has pleaded guilty to the indictment.  He is entitled to credit for all these mitigating factors.  We take account of them and we propose accordingly to reduce the conclusions.  However abhorrent the Defendant's conduct was it must be placed in its proper context having regard to other cases of child abuse which have come before this Court.

 

4.    Brewster, the sentence of the Court is that on Count 1 you will go to prison for 30 months; on Count 2 you will go to prison for 18 months concurrent; and on Count 3 to prison for 18 months concurrent; making a total of 30 months imprisonment.

 

 

AUTHORITIES.

 

A.G.-v-Jouan (15^th March, 1996) Jersey Unreported

 

Jouan-v-A.G. (19^th June, 1996) Jersey Unreported. CofA.

 

Whelan: Aspects of Sentencing in the Superior Courts of Jersey: pp.96-102.

 

Ibid (May, 1995-96): pp.41-43.

 

Ibid (May, 1996-97): pp.47-48.

 

A.G.-v-Bouhaire (1^st November, 2000) Jersey Unreported.

 

Jervis Dykes-v-A.G. (13^th July, 1999) Jersey Unreported. CofA.

 

A.G. -v- Hampson (15^th May, 1998) Jersey Unreported.

 

Wall -v- A.G. (9^th July, 1998) Jersey Unreported.

 

A.G. -v- McIntyre (21^st January, 1999) Jersey Unreported.

 

Riant -v- A.G. (27^th January, 2000) Jersey Unreported CofA.