Jersey Unreported Judgments

Inferior Number Sentencing - breach of a restraining order, contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010.

[2011]JRC214

Royal Court

(Samedi)

4 November 2011

Before     :

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

The Attorney General

-v-

G

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

1 count of:

Breach of a restraining order, contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010 (Count 1).

Age:  60.

Plea: Guilty.

Details of Offence:

During July 2009 the defendant was sentenced to a total of 4 years' imprisonment after having pleaded guilty to two counts of indecent assault, one count of procuring an act of gross indecency and two counts of child neglect.  In May 2011 he was placed on the notification register under the Sex Offenders (Jersey) Law 2010 for a maximum of 10 years, and made subject of several restrictive orders. 

The defendant was in particular subject to the following:-

(i)             That he be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the order other than any contact which is inadvertent or unavoidable.

(ii)            That in circumstances where he finds himself in contact with any persons named in Appendix A, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonable possible.

During August 2011 the defendant was seen outside a building together with five others, three of whom he knew were named in Appendix A of the order.  The police contacted some of those present who confirmed the witnesses account, and that D, B and C had been there.  All three are named in Appendix A. 

A said there was an arrangement to meet the defendant to pass him a key to the accommodation.  She met him outside and passed him the key.  She said B blew a kiss at the defendant and the defendant then briefly spoke to both D and B.  A had telephoned the defendant as they prepared to leave to say she would leave the keys in a secure place outside the flat but he replied that he was outside and would wait for them.  Miss N who was there said she pushed the two young children past him in the pram while A gave him the key.  D waved at the defendant who then came over to pat him on the head.  They then went to town leaving the defendant at the flat. 

C said that he did not know that the defendant would be outside.  He was aware that he was not meant to have contact with the defendant and that this restriction also applied to D and B.  When they went outside C was next to A as she handed the key over and he and the defendant hugged each other.  C then walked down to join Miss N and the other two younger children.  One of them waved at the defendant who came down and patted both children on the head, gave them a kiss and spoke to them.  The group then separated. 

Shortly afterwards Miss N realised that she had left her purse in the flat and asked C to go and fetch it.  He did so and encountered the defendant in the flat and said he was getting the purse and also has a brief exchange as C left. 

The defendant said in interview that when A met him he was surprised to see that she had children with her, and that Miss N wheeled them past him in a buggy.  He said that he had spoken to A about incidental matters for a minute or so and that he was affected from medicine he had taken.  He denied seeing C either outside the accommodation or inside, saying that when he was in the flat he was in the toilet and may not have been aware of anyone coming inside.  In the second interview he denied speaking to D or B, touching them, or seeing C.  He said that even if he had seen them he did not acknowledge them. 

Aggravating features

The defendant was not co-operative in interview, and denied knowing that any of the individuals were present at the time.  He cannot have been in any doubt as to the nature or extent of the orders. 

Details of Mitigation:

Whilst this was a breach of a restrictive order imposed by the Court to protect the public, and specific individuals from the threat of serious harm, it was to the lower end of the scale.  The breach was not pre-meditated, the physical contact with the three individuals was brief, and the situation endured for one to two minutes.  The mischief was in the fact that the defendant did not take steps to leave as soon as reasonably possible.  Guilty plea. 

Previous Convictions:

Indecent assault, one count of procuring an act of gross indecency, two counts of child neglect. 

Conclusions:

Due to time the defendant spent on remand this allowed for his immediate release. 

Count 1:

4 months' imprisonment.

Sentence and Observations of Court:

Count 1:

6 months' Probation Order.

Ms E. L. Hollywood., Crown Advocate.

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE bailiff:

1.        The defendant in this case was sentenced in July 2009 to 4 years' imprisonment for sexual offences in connection with two girls under the age of 16.  On 26^th May, 2011, after his release, the Court made certain restraining orders against him under the Sex Offenders (Jersey) Law 2010.  The relevant orders for our purposes today were as follows:-

"1.      That he be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of this order, other than any contact which is inadvertent or unavoidable, and

...

4.        That in circumstances where he finds himself in contact with any persons named in Appendix A, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible."

2.        On 12^th August of this year the defendant breached that restraining order in the manner described by the Crown Advocate and by Advocate Pearmain.  He arranged to meet A; unknown to him B, C and D, who are three of the people listed in Appendix A, were also there.  We will come in a moment to the exact circumstances of the breach. 

3.        This is the first breach of a restraining order under the 2010 Law and Advocate Pearmain has asked us if we could give some general guidance.  We are a little cautious about doing so because the only assistance we have had is the production by Mrs Pearmain, which is very helpful, of a section from Archbold Magistrate's Court Criminal Practice 2012 and in particular paragraph 14 - 299 which reads as follows:-

"In Fenton [2007] 1 Cr. App. R. (S) 97 it was held that where the breach does not involve any real or obvious risk to the section of the public sought to be protected by the order then a community penalty would be an appropriate sentence.  Where there are repeated breaches of any order a custodial sentence may be appropriate.  Where the person or persons sought to be protected are, as a result of the breach, put at a real and obvious risk then the breach should be treated more seriously."

There is then reference to another case Byrne [2010] 1 Cr App R (S) 65, where a 2 year sentence was imposed for a breach of an order on seven occasions.  The orders spoken of there are sexual offences prevention orders but they are the English equivalent of our restraining orders under the 2010 Law. 

4.        We have to say that, in our respectful opinion, that passage does not treat a breach sufficiently seriously but we do emphasise that we have not been referred to the cases themselves, and therefore we are relying entirely on Archbold's summary of them.  But one starts from the position that a restraining order is made because an offender poses a risk of serious sexual harm.  The order is therefore made for the protection of others because of the risk of that harm.  For a person who poses such a risk then to flout the order of the Court is, in our judgement, very serious.  Furthermore, Jersey is a small community and is very different in size and scale from England and Wales.  There is a considerable risk of an offender coming into the same area as a person he is prohibited from contacting and it is too easy for him to say that it was unavoidable.  A strong message therefore needs to be sent that offenders must take all reasonable steps to avoid breaching the order. 

5.        Furthermore, the probation report prepared for us in this case suggests that there is a view among offenders of this nature that breach of a restraining order is not a matter which will be taken particularly seriously.  We wish to make it clear that that is not the case and to disabuse any persons who hold such a view.  For the reasons we have given, we consider that breach of a restraining order will be treated seriously and in most cases is likely to result in a prison sentence, certainly if there is any deliberate breach of any significance. 

6.        But the Court must consider the facts of any particular case and we accept, as does the Crown in this case, that the breach here was at the very bottom of the scale.  The defendant did not know that B, C or D would be present and therefore the breach was completely unpremeditated and not the subject of any deliberation.  B and D are tiny youngsters; C is now 16, although he was not when the order was made.  The essence of the breach in this case lies in the fact that the defendant did not leave the scene as soon as he could.  Having met them all inadvertently because they were in company with A, he turned to speak briefly to the two toddlers and also received a hug from C who is, as we say, now over 16.  The whole incident lasted a matter of a minute or two and took place in a public street.  The mother of the toddlers was present throughout.  As we say, the essence of the breach was that he did not remove himself as soon as reasonably practical as ordered by the restraining order. 

7.        In all the circumstances this is one of those rare cases therefore where a breach does not merit a sentence of imprisonment.  It would have merited a sentence of community service.  However, the defendant has served the equivalent of 4 months' imprisonment on remand and therefore it would be wrong to impose community service as this would amount to double punishment.  Advocate Pearmain has asked us to impose a probation order and this is also referred to in the probation report.  This will formalise the support which the defendant is already voluntarily seeking from the Probation Service and we think it would assist him in resettling and that can only be for the benefit of the community as a whole. 

8.        In all the circumstances we impose a Probation Order of 6 months. 

9.        The defendant is still subject to the notification requirements and of course subject to the restraining orders and, whilst on this occasion the Court has accepted it was a brief inadvertent breach, should there be any repeat breach he can expect a much harsher penalty. 

Authorities

Sex Offenders (Jersey) Law 2010.

Archbold Magistrate's Court Criminal Practice 2012.

Byrne [2010] 1 Cr App R (S) 65.

AG-v-G [2009] JRC 148.