Jersey Unreported Judgments

[2005]JRC175

ROYAL COURT

(Samedi Division)

19^th December 2005

The Attorney General

-v-

Scott Andrew Kelly

Sentencing by the Inferior Number of the Royal Court, on a guilty plea to:

Age:  21.

Plea: Guilty.

Details of Offence:

Kelly was intoxicated on alcohol and cocaine.   After meeting the victim in a nightclub, where kisses were exchanged, Kelly walked through town with her and invited her into a flat.  Once inside, Kelly made advances which were rejected by the victim.  When she indicated that she wanted to leave, Kelly forced her into a bedroom, undressed himself and held her down by her throat.  He cut off her belt with a pair of scissors before pulling off her trousers and pants.  He hit her three times and threatened to kill her.  He threw the victim's phone away when she tried to call the police.  She screamed at him to stop.  He tried to open her legs and climbed on top of her.  When the victim pushed him off, he penetrated her digitally and tried to force her to fellate him.  The victim ended up kicking him, and making an escape to the nearby Police Station.  After his arrest, the Defendant said that he could not remember the incident due to his intoxication, but accepted that it had taken place as described by the victim.  The victim suffered severe trauma as set out in a Victim Impact Statement that was before the Court.

Details of Mitigation:

Guilty plea saved trauma of trial; youth (aged 20 at the time of the offence); out of character; previous good character; had a new baby with his girlfriend who stood by him; good references; remorse.

Previous Convictions:

None.

Conclusions:

3 years' youth detention.

Sentence and Observations of Court:

This was a very serious indecent assault that verged on being an attempted rape, something which the victim reasonably believed was going to happen.  Although Kelly was 20 at the time, prison was the only viable option.  Conclusions granted.

C.M.M. Yates, Esq., Crown Advocate.

Advocate R. Macrae for the accused.

JUDGMENT

THE BAILIFF:

1.        Kelly is to be sentenced for a very serious indecent assault, which verges closely upon an attempt to rape.  The defendant showed a complete disregard for the rights and feelings of a young woman who had trusted him to help her to find her way home.  The assault continues to affect the victim and the way in which she lives her life.  The indecent assault which involved digital penetration, was coupled with threats to kill, violence and other indignities which substantially aggravated the offence. 

2.        The victim reasonably believed that she was going to be raped and, but for her courageous resistance, that might well have been the outcome.  It is a further aggravating feature that the defendant was drunk at the time.

3.        Although the defendant is now 21 he was at the date of conviction aged 20 and the provisions of Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 apply.  Counsel realistically accepted, and we have no hesitation in concluding however, that this offence is so serious that a non-custodial sentence cannot be justified.

4.        In mitigation Kelly is a young man, with no previous convictions.  A number of excellent references have been placed before us which show that this offence was out of character and that the defendant is in general a likeable and hard working individual.  He comes from a close and supportive family.  He has a girlfriend with whom he has a small baby and who continues to support him. 

5.        Counsel rightly drew attention to the value in this case of the early guilty plea, which has avoided a trial and is evidence of remorse.  Defence counsel also told us that the closed circuit television pictures in the nightclub showed the defendant and victim kissing and cuddling over an extended period.  The Crown Advocate submitted that whatever the victim may have done in engaging the defendant in conversation and more at the nightclub did not justify the subsequent attack once the victim had clearly rebuffed the defendant's advances.

6.        Kelly, your advocate has said everything that could be said on your behalf.  At the end of the day you committed a very nasty indecent assault which has traumatised your victim.  We must punish you for that and we impose, in accordance with the conclusions of the Crown Advocate which seem to us to be absolutely right, a sentence of 3 years' imprisonment.

Authorities

AG -v- Vibert (1991) JRC56A.

AG -v- Schollhammer & Ors (1989) JRC129.

AG -v- De Brito (1992) JRC182.

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n).

Criminal Justice (Young Offenders)(Jersey) Law 1994.