Jersey Unreported Judgments

[2009]JRC228

ROYAL COURT

(Samedi Division)

27^th November 2009

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Tibbo and King

The Attorney General

-v-

T

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Inciting an act of gross indecency (Count 1).
1 count of:	Procuring an act of gross indecency (Count 2).

Age:  71.

Plea: Guilty.

Details of Offence:

The offences were committed against a male child between 1981 and 1984.  In relation to the first count, the defendant exposed his erect penis to the child, who was then aged between 11 and 14 years, and invited him to touch it. 

The second offence was committed in 1983 when the child was aged 13 years.  The defendant exposed his erect, naked penis to the child in the course of masturbation and grabbed him by the wrist and forced him to touch it.

Details of Mitigation:

Guilty plea; the defendant's age (71 years) and that he has not committed another offence in the 25 years since his conviction in 1984; the considerable show of contrition evidenced in his behaviour; and that the wife of the defendant is of unsound health and reliant on the defendant for many daily activities.

Previous Convictions:

1.     Previous sexual offences against children in 1984:-

a) Procuring an act of gross indecency with a girl (aged 11 -15 years).

b) Indecent assault on a girl (aged 10-13).

c) Procuring an act of gross indecency with same girl (1984)

Conclusions:

The charges brought against the defendant are historic and he has exhibited extreme contrition for his behaviour.  The SER outs him at low risk of re-offending.  His wife's current state of health is such that she would find it very difficult for the defendant to be away from her for any length of time.  Notwithstanding this, he has committed a serious breach of trust and the offence appears to have done lasting psychological damage to the victim.  Additionally, the defendant's previous convictions show the offence to be part of a pattern of deviant and destructive behaviour. 

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.

Total:  12 months' imprisonment.

Sentence and Observations of Court:

The Court confirmed that in historic cases of this type (old offender who had offended historically as a mature adult) a person was to be sentenced on today's sentencing practices.

The sentence that may have been passed at the time the offences were committed would not be relevant.  Sentencing practice had moved on.

Conclusions granted.

S. M. Baker, Esq., Crown Advocate.

Advocate C. Hall for the Defendant.

JUDGMENT

THE BAILIFF:

1.        In 1981, when he was twelve, the victim, who had previously been in various children's homes, was placed in foster care with you and your then wife.  In May 1984 you were sentenced to 18 months' imprisonment for sexual offences against two of your daughters.  When these offences came to light the victim in this case was asked whether you had offended against him, but he said, at that stage, that you had not.  In fact you had and he has now come forward. 

2.        The offending took place on two occasions, when he was thirteen or fourteen and you were in your early forties.  On the first occasion, when your penis was erect you asked him to touch it but he refused.  On the second occasion you were in your bedroom masturbating when you grabbed the victim by the wrist and forced him to touch your penis.  The victim touched it lightly with his fingertips before being able to pull his hand away.

3.        The Crown accepts that, so far as the physical nature of the acts in question are concerned, this was towards the lower end of the scale, but there are several factors which increase its seriousness.  The first is that this was a gross breach of trust.  This boy had been placed in your care as a foster parent and you were standing in for his parents.  You betrayed that trust.  Secondly, the victim was known by you to have come from a children's home and you must therefore have realised that he would be more vulnerable than most.  Thirdly, the offending took place more than once, despite the fact that on the first occasion the victim had refused to touch your penis and made it clear he did not want to do so.  So you knew that but you continued with the second offence. 

4.        However, there is much mitigation and Miss Hall has put that forward strongly.  First there is your guilty plea and we accept that, in a case like this, that is of great value because it spares the victim having to re-live what happened in the witness box.  Secondly, since your release from prison you have not offended further; you have been in employment, you have remarried and have lived a perfectly proper life for twenty-five years.  Thirdly, you are now seventy-one and the background report makes it clear that you are at low risk of re-offending and this, of course, is supported by the fact that you have not re-offended for twenty-five years.  Fourthly, there is the health of your wife who is eighty-three.  She suffers from arthritis and other matters and it is clear that she depends on you to help with shopping, laundry, cleaning and so forth.  It is clear therefore that a prison sentence will operate hardly for her. 

5.        Both counsel have referred to the case of AG-v-Holland [2008] JRC 061 where the court worked out what sentence would have been passed if the offending, which was then before the court, had been dealt with at the time of other offences for which the defendant had been sentenced earlier.  Thus both counsel in this case tried to estimate what sentence the court would have passed for these current offences, had they been dealt with at the time the offences against your daughters were dealt with.  We are not convinced that this is very helpful.  The facts in Holland were extremely unusual, in particular because the prosecution had known at the time of the earlier court appearance about most of the offences which were before the court on the later occasion, but had failed to prosecute them at the correct time, so that they were dealt with on the first occasion.  We do not believe it was the intention of the court to lay down any general principle, and on this occasion, of course, there was no way that the prosecution could know about these offences, not least because you did not tell anyone about them, whereas you knew you had committed them. 

6.        In our judgment our task is to consider the correct sentence today for these offences which were committed twenty-five years ago.  The Court has repeatedly said that, save in exceptional cases, a custodial sentence is required for sexual offences against children.  This is not only to mark society's revulsion at such offences, but is also to recognise the psychological damage that such offences so often cause to the victims and which can affect them so much in later life.  Despite all the mitigation which Miss Hall has put forward on your behalf, we have no doubt that a prison sentence is required in this case and we think that the Crown's conclusions make sufficient allowance for the mitigation.

7.        The sentence of the Court is that there will be a sentence of 12 months' imprisonment, concurrent on each Count.

Authorities

AG-v-Holland [2008] JRC 061.

AG-v-G [2009] JRC 148.

AG-v-AP [2009] JRC 025.

AG-v-Hayman [2008] JRC 211.

AG-v-Curtin [2007] JRC 223.

AG-v-Foster [2007] JRC 201.

AG-v-Abbott [2007] JRC 094.

AG-v-L [2007] JRC 029.

AG-v-Hamon [2006] JRC 160.

AG-v-Hamon [2003] JRC 149.

R-v-Millberry and others [2003] 2 Cr App R (S) 31.

AG-v-Freeman [2003] JRC 028.

AG-v-Hanby 2002/66.

AG-v-Hampson 1998/99.