Jersey Unreported Judgments

[2010]JRC184

ROYAL COURT

(Samedi Division)

8^th October 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Marett-Crosby.

The Attorney General

-v-

Allan Kittleson

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

1 count of:

Unlawful sexual intercourse, contrary to Article 4(1) of Loi (1895) Modifant Le Droit Criminel (Count 1).

Age:  55.

Plea: Guilty.

Details of Offence:

During the summer of 2008 and again at Christmas, Miss X started working in a town shop, in which Kittleson was a partner.  As a result she was invited to the staff Christmas party in December.  During this party they had what she describes as a "passionate kiss".  Miss X was born in 1994. 

At some point between January and March, Kittleson separated from his wife.  In March Miss X's parents began to have concerns as to the nature of Miss X's relationship with him.  He had bought her gifts, taken her out for meals and invited her on a trip to London.  Messages later recovered over the eight-week period of 11th August, 2009 to 1st October, 2009, shows that by August the relationship between Kittleson and Miss X had become sexual. 

On Saturday 22nd August Kittleson and Miss X met.  She returned home late and her parents became concerned and were out looking for her when she arrived.  They confiscated her mobile phone, and there was an exchange between her and Kittleson via Facebook messaging the next day where she tells him what happened.  One response from Kittleson reads " Darlin wev got to get our act to-gether its easy to get complacent when we c each other so often I don't want either of us to end up in deep shit...cos I luv u so much."

On Monday 28th August, 2009, there was a long exchange of messages between them, again on Facebook, many of which are explicitly sexual in nature, and they also arrange for Kittleson to contact Miss X on a different mobile phone number.  Her original mobile phone was returned on Tuesday 25th August, 2009, and the text messaging resumed. 

On 3rd September, 2009, Miss X's father discovered further texts from Kittleson.  The police were contacted and attended at Miss X's school together with a social worker at around 11am.  Miss X was reluctant to speak to officers and called Kittleson at work and told him that the police had come to her school.  Soon after this he briefly left work.  He was arrested at the shop at 14:00pm.  When police attended his flat shortly after 15:00pm they noted that his bed had been stripped and the sheets were in the washing machine, which was mid-cycle. 

When Miss X's father, who is fifteen years younger than Kittleson, collected her from school that day says she admitted having a sexual relationship with Kittleson, and that it had started at the Christmas party.  She said that they had wanted to wait until she was sixteen but could not and that during the summer she was with him while she was supposed to have been having sleepovers at a friend's house.  In fact they had been having sexual intercourse at his flat and at the shop. 

Officers strongly advised Kittleson not to contact Miss X.  Days later Kittleson and Miss X resumed communication, now using new mobile phone numbers as their phones were with the police.  The content of the messages remains the same, and on one exchange Miss X says:- "Can u imagin if we didn't hav it til march?  Itd b a bitch w8in but itd b awesum wen it was hapnin."  At some point after Miss X's birthday in March this year, she moved into Kittleson's flat. 

Kittleson was interviewed four times and maintained his innocence in the face of increasingly damning evidence.  The content of some of the text messages were put to him.  The first that had been recovered had been sent on 11^th August from Kittleson to Miss X:- "Watcha cok if u an lola r comn round 2 nite...wat do u wanna eat?  I no wat lola wants!!! But how bowt my darln?  Misn u xxx".

He initially said he did not know what the message was about and it was put to him that "Lola" was his name for Miss X's vagina.  He denied this initially but in a later interview agreed.  He also said that he could not remember whether Miss X had been to his flat for a meal, as suggested by that text.  Two days after this text, after apparently meeting her for coffee, Miss X sent him the following:- "Uv got me going now!  Cny stop thinking bowt sex!!  Cnt wait to get home..im nt gna go 2 the bbq so il cum rnd like 7ish xx".  He replied:- "Me 2 need u now...realy horny...bring ur s exy kit...wana get rite in2 it 2 nite!!!!X". 

In interview he said that the texts had just been a bit of fun.  He was insistent that they had not had sex, despite one text being put to him in which he said he missed her being next to him and "the sex as well".  At some point after Miss X's 16^th birthday, she moved into Kittleson's flat. 

The impact on the family had been devastating.  While there is still regular contact between Miss X and her parents, they believe that the relationship is unlikely to ever be the same again. 

Details of Mitigation:

Guilty plea; victim mature for age; no breach of trust; no grooming; no danger to young girls; letters of support; genuine emotional relationship; separated from wife and at emotional low point; victim urges leniency and they remain together.  Social Enquiry report recommends non-custodial disposal. 

Previous Convictions:

None relevant. 

Conclusions:

Count 1:

2 years' imprisonment.

Sentence and Observations of Court:

Count 1:

2 years' imprisonment, suspended for a period of 2 years.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Courts have made it clear that when a much older man has sexual intercourse with a girl under 16, an immediate prison sentence must be imposed unless there are exceptional circumstances.  There is a very substantial age gap in your case, and what has happened has had a devastating effect on her family and her relationship with her family.  We have read the victim impact statements and we fully understand their sense of outrage at what you did. 

2.        However, Mr Preston has urged that there are exceptional circumstances in this case which would justify the imposition of a non-custodial penalty, and we would summarise them as follows:-

(i)        This was an entirely consensual relationship, the victim was nearly 15½ when the offending started and she was clearly mature for her years. 

(ii)       We do not consider this to be a classic case of breach of trust.  If there had been, prison would indeed be inevitable. 

(iii)      This is not a case where we consider that you have groomed a young person in order to have sexual intercourse; this appears to have been a relationship which developed mutually in a natural way. 

(iv)      It is not a case where you are assessed as being any form of danger to young girls.  The probation report assesses you as being at low risk of re-offending; you have strong letters of support from your wife, from whom you are separated; from your former wife, from whom you are divorced of course; from your step-daughter and from others.  They all speak of your character and of the fact that this appears to be entirely out of character. 

(v)       This is a case where, on all the evidence, there is a genuine emotional relationship between you; it is not a simple case of an older man satisfying his physical desires.  Furthermore, at the time it started you had just separated from your wife and were no doubt at an emotional low point. 

(vi)      Most significantly, since she attained the age of 16, you and the victim have lived together.  She has urged the Court to show leniency to you and if we were to send you to prison it is not clear what would happen to her. 

(vii)     The background report has recommended a non-custodial penalty and it is clear from the report that you are extremely remorseful for what you have done. 

(viii)    Finally, Mr Preston points out that you pleaded guilty; you have avoided the need for a Newton Hearing, even though you do not accept all of the detailed factual statements by the Crown, because you do not wish to put the victim through any such hearing; and you, of course, have no previous convictions. 

3.        Despite all these matters we think a prison sentence must be imposed; but we have just been persuaded, and you can see that it has been a very finely balanced matter by the time we have spent in retirement, that that sentence can be suspended because there are exceptional circumstances. 

4.        Accordingly, the sentence of the Court is that you go to prison for 2 years but that is suspended for 2 years.  What that means is that if you do not commit any further offence of any seriousness within the 2 year period, you will not have to serve the sentence.  But if you do, then not only will you be punished for whatever future offence you commit, but you will then have to serve, in addition, the 2 years we have just imposed.  That is the sentence of the Court. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

AG-v-Clarke 1994/N7b.

AG-v-Hughes (Unreported, 9^th October 1989).

AG-v-Perkins 1998/2.

AG-v-Rosser 2002/67.

AG-v-Corcoran [2009] JRC 167.

AG-v-Hatte [2004] JRC 176.