Jersey Unreported Judgments

 2002/67

ROYAL COURT

(Samedi Division)

 

22nd March 2002

 

 

The Attorney General

-v-

Lyndon Thomas Rosser

 

 

1 count of:

Unlawful sexual intercourse with a girl under 16 years of age, contrary to Article 4(1) of the Loi (1895) modifiant le droit criminel.

 

 

Age:     25

 

Plea:    Guilty.

 

Details of Offence:

Night duty manager of hotel at which children/young persons' party was being held; encountered drunken 15 and half year old girl who was plainly incapacitated by drink; took her to hotel bedroom so that she could 'sober up'; oral sex, digital penetration and full intercourse; girl frightened and pretended to be asleep throughout; she submitted - no protest or resistance; prosecution case put on the basis that in the absence of those things the accused may have believed - albeit unreasonably - that the girl was acquiescent.  Marked element of breach of trust present; girl greatly distressed.

 

Details of Mitigation:

Belief in acquiescence; youth; character; remorse; general distinction with worse examples of the offence, advanced by the defence.

 

Previous Convictions:

None relevant

 

Conclusions:

2½ years' imprisonment.

 

Sentence and Observations of Court:

Conclusions granted.

 

 

 

C.E. Whelan, Esq., Crown Advocate.

Advocate N. Benest for the defendant.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        This was a case of a man in his mid-twenties taking advantage of a 15 year old girl, who was clearly very drunk, in order to gratify his sexual urges.

2.        That conduct was aggravated by the fact that the defendant was in a position of trust.  Other youngsters that evening were concerned about the victim, and how she was going to get home in view of her drunken state.  The defendant was the duty manager at the hotel and was wearing a uniform, and he suggested that she should go upstairs and lie down in one of the hotel rooms.  It is impossible to believe that if a man not in uniform, and not the duty manager, had suggested that he take the victim off to a bedroom, either the girl or her acquaintances would have agreed to it.  They trusted him because of his position, and the defendant then betrayed that trust by having sexual intercourse with her, when it must have been apparent that she was drunk.

3.        As the case of R-v-Taylor & Ors (1977) 64 Cr.App.R.183 makes clear, a man in a supervisory capacity, who abuses his position of trust for sexual gratification, ought to get a sentence somewhere near the maximum, which in those days was two years.  Since then the legislature has increased the maximum sentence to five years, thereby indicating that it takes a more serious view of offences of this nature, particularly at the higher end of the scale, than had hitherto been the case.

4.        It follows that all the cases decided under the old law are of limited assistance.  However, we do accept the point which Miss Benest made, namely that the breach of trust in this case was not as serious as a person in a long term position of trust towards the victim, such as a teacher, or a social worker, or a person who is in a more obvious position of trust such as a police officer.

5.        Nevertheless, there were aggravating features in the case, namely the element of the breach of trust, and the fact that the defendant took advantage of a drunken and inexperienced teenage girl who was a complete stranger to him.

6.        The offence clearly caused some distress to the victim.  We have received a victim impact statement.  Miss Benest made some sustained criticisms of that report, and we have to say that, for the most part, those criticisms appear to us to be well merited.  There appear to be a number of internal inconsistencies and inaccuracies in the report and we place no weight on it.

7.        Miss Benest has put forward persuasively the mitigating factors in this case.  In particular she refers to the defendant's plea of guilty, and his acceptance of responsibility, thereby not putting the victim through the trauma of giving evidence.  That is always a weighty matter in a case such as this.

8.        She pointed out that he used a condom; that he is of previous good character, and we have read the references which have been prepared, which show that there is an extremely good side to this young man.  She has also pointed out that the girl was 15½, nearly 16.  This is not one of those cases where the victim is 13; nor was there a great age disparity as compared with some cases.  Most importantly, she said there was no element of premeditation.  This was a spur of the moment offence which took place without any planning, and we accept that.  Furthermore, the defendant has expressed his remorse which we also accept.

9.        As can be seen by the time that we have been in recess, we have not found this easy.  Nevertheless, we have concluded that taking account of the aggravating factors, and the general circumstances in which this offence was committed, the Crown has allowed enough for the mitigating factors; accordingly the sentence is one of 2½ years' imprisonment.

 

Authorities

A.G. -v- Queally (9^th December, 1996) Jersey Unreported.

R-v-Taylor & Ors. (1977) 64 Cr.App.R.183.

AG-v-Clark (9^th September, 1994) Jersey Unreported.

AG-v-Perkins (9^th January, 1998) Jersey Unreported.

Dewar (1986) 8 Cr.App.R.(S) 311.