Jersey Unreported Judgments

[2009]JRC177

ROYAL COURT

(Samedi Division)

7^th September 2009

The Attorney General

-v-

C

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 30^th June, 2009, following guilty pleas to the following charges:

Age:  37.

Plea: Guilty.

Details of Offence:

Counts 1 and 2 on the Indictment relate to an incident that took place between December 2003 and 22^nd January 2005.  The victim in relation to these two counts is the Defendant's eldest daughter and the incidents therefore took place when she was between 13 and 14 years of age.  At the time the assaults took place within the family home.

An initial complaint was made by the eldest daughter on 21^st January 2005 to her schoolteacher and who in turn informed the relevant authorities.

In interview, the eldest daughter stated that the Defendant had sexually abused her, which she went on to say meant that he had indecently assaulted her by way of touching of the breasts and vagina over the clothes (Count 1) and also that he had digitally penetrated her vagina and performed oral sex on her on a separate occasion (Count 2).  The Defendant actively manipulated situations whereby he could commit these offences without the other members of his family knowing about them, and the indecent assaults showed an increasing degree of severity moving from inappropriate touching over the clothing to digital penetration and cunnilingus.

The Defendant was interviewed under caution in relation to these allegations on 26^th January 2005.  He denied all allegations.  He was released following that interview but advised not to return to the family home unless supervised and his eldest daughter and her siblings were placed into the care of Health and Social Services.  However, the investigation was not pursued when the eldest daughter indicated that she did not want to assist in the matter further and no charges were brought at this time.  The eldest daughter and her siblings were subsequently returned to the family home together with the Defendant.

Count 3 on the Indictment relates to an incident that took place on 19^th September 2008.  The victim in relation to this count is the Defendant's second daughter and took place when she was aged 14 years.  The second daughter made the initial complaint to her schoolteacher that the Defendant had asked her to "sleep with" him, which when questioned, she understood to mean "probably have sex or something."  She stated that he had offered her inducements to acquiesce to his advances in that he offered to pay for her mobile phone bills, for a tattoo and also for a belly-button piercing.  When she failed to accede to his request, however, he threatened that if she did not comply then she would be evicted from the family home.  As a result of the disclosure made by the second daughter, the Police contacted the elder daughter and asked if she wished to pursue her original complaint.  She confirmed that the initial allegations which had been made in 2005 were true and that she wanted the Police to continue with their enquiries and pursue the complaint.  The Defendant was arrested and questioned and he denied all of the allegations made by the second daughter and gave no comment answers when questioned directly about the allegations made by the elder daughter in 2005.

The assault had a significant impact on the elder daughter psychologically.  As she grew up she became severely depressed, self-harmed, experimented with cannabis, and abused solvents and she felt unable to provide a Victim Impact Statement because of the feelings this might unearth.  Similarly, the second daughter did not provide a Victim Impact Statement.

Although he pleaded guilty to all three offences, the Defendant maintained his innocence in relation to them and showed no remorse for his actions or acknowledgement of wrongdoing.  Similarly, he gave no comment answers in interview when questioned about the offences in relation to the elder daughter, and specifically denied the allegations made by the second daughter and the Defendant could not be said to have been co-operative with the investigation.

The Defendant also refused to co-operate with the Probation Service regarding the preparation of an SER and also declined to be interviewed for a specialist psychological report.

Details of Mitigation:

Guilty pleas.  Spared the victims the distress of giving evidence at trial.  Unhappy childhood; victim of physical, emotional and sexual abuse.

Previous Convictions:

Previous conviction on 22^nd June 1999 for an assault on a child under 8 years old.  The facts of the incident are that the Defendant struck his elder daughter with a dog lead, for which he was placed on probation for 18 months, with 40 hours community service and a condition to attend an ACT programme.  The probation order was subsequently revoked for good behaviour and progress on 8^th May 2000.

Conclusions:

Total:  5 years' imprisonment.

Sentence and Observations of Court:

Total:  4½ years' imprisonment.

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The defendant stands indicted for two counts of indecent assault against his eldest daughter when she was thirteen or fourteen.  The first involved touching her breasts and vagina over her clothing, the second involved digital penetration and oral sex by the defendant on his daughter.  His daughter originally complained in January 2005 when she was 14.  The defendant gave a "no comment" interview at the time and the investigation was not proceeded with when the daughter said that she did not wish to proceed.  The events in question took place in 2004 or January 2005. 

2.        In 2008 the defendant tried, on various occasions, to persuade his second daughter, by then also fourteen, to have sexual intercourse with him.  As part of the process he offered inducements to her, such as paying for her mobile phone bills or for a tattoo and he also threatened her with eviction from the family home should she not accede to his request.  When this matter came to light the eldest daughter confirmed her original allegations and the defendant was therefore charged in respect of both daughters.

3.        These offences were the most appalling breach of trust.  A family home ought to be a place of safety and security, not somewhere where a father seeks to satisfy his sexual desires with his own daughters.

4.        In mitigation Mr Haines has referred to the guilty plea.  It was quite late in the day but there were originally more serious charges.  In particular, given the recent statements made by the two daughters, we think that the plea was undoubtedly of value and we think therefore that a full discount should be given for it.  The defendant does have one previous conviction for cruelty to a child under sixteen when he struck the elder daughter in 1999 with a dog lead.

5.        We also take into account that he had an unhappy childhood as contained in a report in family proceedings which has been shown to us by the defence but it is right to point out that the defendant has refused to see the Probation Service for the preparation of a report nor has he agreed to see a psychologist for preparation of a psychological report.  There have been no expressions of remorse on his part. 

6.        Mr Haines argues that for the nature of the offending in this case by this offender, a total of 5 years is too high.  He has referred us to two cases, AG-v-L [2007] JRC 029 and AG-v-AP [2009] JRC 025 where the nature of the offending was undoubtedly more serious but the sentences passed were less than that moved for by the Crown in this case.  In those two cases the defendants were aged 82 and 75 respectively, and the Court, in each case, made it clear that the sentence would have been much greater if those two defendants had been younger.  We do not therefore think that we can derive any assistance from those cases. 

7.        Mr Haines has also placed much reliance on the recent case of AG-v-G [2009] JRC 148.  G committed four sexual offences against his fourteen year old daughter over a two-month period when his wife was terminally ill.  He also committed one offence against a fifteen year old friend of his daughter in the same period.  He was sentenced by this Court to 4 years' imprisonment for the offences against his daughter and 6 months' imprisonment, concurrent for the offence against the friend.  The offending against the daughter in that case was broadly similar to that in this case against the elder daughter, but we do accept Mr Haines' submission that the offending by G was slightly more serious.  But there were certain key differences which point the other way.  First, the offences in G were all committed over a two month period when the defendant was said to be under stress when his wife was terminally ill.  There was no suggestion of offending outside that period and he had no previous convictions.  Here the defendant has committed offences on different daughters many years apart and this shows, in our judgment, that he is a continuing risk to his children.  Furthermore, he has one previous conviction for cruelty to a child in relation to the elder daughter, as we have already indicated.    The second difference was that G, on the reports, was extremely remorseful whereas here the defendant has not expressed any remorse at all.  Thirdly, the offence against the younger daughter in this case has aggravating features because not only did he offer inducements to her to sleep with him but he threatened to evict his fourteen year old daughter from the family home if she didn't let him have sex with her.  In our judgment that was a very cruel and manipulative thing to do and adds to the seriousness of the offence.

8.        Taking all these matters in the round we must consider what the correct overall sentence is.  Two of the Jurats would have imposed the sentence moved for by the Crown but the remaining four Jurats are of the view that the totality of the offending, taking into account the mitigating factors, should result in an aggregate sentence of 4½ years.  All the Jurats are agreed that the sentence in respect of the younger daughter must be consecutive because it related to a separate victim many years later.  This is to be contrasted with G where all the offending took place at the same time.

9.        C, the sentence of the Court is as follows, on Count 1; 2 years' imprisonment, on Count 2; 3½ years' imprisonment, concurrent and on Count 3; 12 months' imprisonment, consecutive, making a total of 4½ years' imprisonment.

10.      Before leaving this case may I just remind the media of their duty, of which I know they are well aware.  The difficulty in a case like this is that if you mention the relationship and the name of the defendant you identify the child.  So you have to decide which way to go, either do not mention the relationship or do not mention the name.

Authorities

AG-v-L [2007] JRC029.

AG-v-AP [2009] JRC025.

AG-v-G [2009] JRC148.

AG v Brewster 2001/3.

AG v Bouhaire 2000/212.

AG v Duckworth [2009] JRC 058.

Whelan's Aspects of Sentencing in the Superior Courts in Jersey.

AG v Myles and Vale [2005] JRC 026.

L v AG [2007] JRC 114.