Jersey Unreported Judgments

Superior Number Sentencing - indecent assault - incest.

[2012]JRC041

Royal Court

(Samedi)

23 February 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Le Breton, Kerley, Crill, Milner and Liston.

The Attorney General

-v-

P

Sentencing by the Superior Number of the Royal Court, following conviction at Assize trial on the First Indictment on 6^th July, 2011, and following conviction at Assize trial on the Second Indictment on 11^th January, 2012, on the following charges:

First Indictment

1 count of:	Indecent assault (Count 1).
1 count of:	Incest (Count 3).
1 count of:	Attempted indecent assault (Count 4).

Second Indictment

1 count of:

Indecent assault (Count 7).

Age:  55.

Plea: Not guilty.

Details of Offence:

First Indictment

The three counts on this Indictment which came to trial all involved the defendant's daughter.  The daughter had a difficult upbringing with the mother and little or no contact with the defendant as her father until aged 13.  The daughter was living in children's homes and came into contact via the defendant's then 16 year old partner.  The defendant was aged 31.  The daughter used to stay over at her father's flat and would sleep on the floor/settee.  Alcohol was consumed.  She awoke one morning to find the defendant performing oral sex upon her.  She was aged 13 (Count 1).  The defendant then moved to other accommodation taking his daughter with him.  The accommodation was partially furnished but there was a double bed.  The defendant gave his daughter alcohol and a cannabis joint which made her sick.  She vomited on herself.  She got undressed and was helped by the defendant.  He then took off all of his clothing and they had sexual intercourse.  When giving evidence the complainant confirmed that her father had penetrated her with his penis.  She gave evidence that the defendant had a distinctive homemade tattoo on his penis.  This was corroborated by other witnesses and also the fact that the defendant and his daughter had been found sleeping together in the bed (Count 2). 

When the daughter was aged 16 she had a child of her own and would stay with her father in his then accommodation.  She would sleep on the floor or on the sofa with her young child.  The defendant was living with another woman at the time.  When she was asleep on the floor her father curled up behind her like a partner would and attempted to indecently assault her by putting his hand in her knickers.  She got up and moved away from him (Count 3). 

The defendant did not give evidence on his own behalf at trial.

Second Indictment

This was dealt with at the second trial.  Counts 1-6 were specimen Counts on the basis that it was alleged that indecent assaults of a similar nature occurred on a regular basis in each of those months.  However, to avoid a technical acquittal because the complainant was unable to assist as to the number of indecent assaults and the dates thereof the Crown was given leave to add the alternative Count 7 being an indecent assault committed on one occasion over the period of 6 months being the period covered by Counts 1-6. 

By a majority the defendant was found guilty of the alternative Count and the factual basis was that the complainant was then aged 12 and would be with her mother alternative weekends and stay overnight.  At the time the mother was in a relationship with the defendant.  There was only one bedroom and the mother, the defendant and the female child would all sleep in the same bed.  The complainant would either sleep between the two adults or on the side of the bed next to the defendant.  When the mother was asleep the defendant tickled her back and then put his hand down between her legs and stroked her vagina and bottom (Count 7). 

The defendant did not give evidence on his own behalf at trial. 

At sentencing the Crown described the defendant as a sexual predator and that the defendant had been interested in young female girls as in addition to the two complainants, he had relationships with two other young females (who were aged 16-17) when he was a mature adult.  The offences were committed when he was aged between 31 and 42.  The introduction to oral sex was viewed as an aggravating factor.  All of the offences involved a gross breach of trust on young vulnerable females.  From the evidence that the complainants gave at trial and also from the victim impact statements provided at sentencing, it was clear that the offences had a severe and long term impact upon them. 

The Royal Court ordered that two further indictments from two separate complainants involving allegations of historical abuse should remain on file. 

Details of Mitigation:

The Crown

The Crown submitted that the defendant had no mitigation.  He had pleaded not guilty resulting in both the complainants having to relive in public their experiences.  The defendant was a mature male aged between 31 and 42.  He showed no remorse or regret.  He has a substantial criminal record.  The defendant declined to cooperate in the production of a social enquiry report. 

The Defence

The Defence agreed that these were serious offences and inevitably warranted a lengthy term in custody.  The defence counsel did not find any personal mitigation but submissions were made as to the length of the conclusions sought by the Crown, the conclusions were too long and, therefore, wrong.  The defendant's behaviour was not a course of conduct over many years and, therefore, warranted a lesser sentence than sought by the Crown.  Totality justified a lower sentence. 

Previous Convictions:

21 convictions for 119 offences including numerous for public order and violence including manslaughter, dishonesty and motoring. 

Conclusions:

First Indictment

Count 1:	3 years' imprisonment.
Count 3:	8 years' imprisonment, concurrent.
Count 4:	2 years' imprisonment, consecutive.

Second Indictment

Count 7:

3 years' imprisonment, consecutive to the First Indictment.

Total: 13 years' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements.

Restraining Order under Article 10(4) with the following conditions:-

(i) That for a period of 5 years from the date of the defendant's release from custody he be prohibited from being alone with any female person under the age of 16 years.  The person will be considered to be alone if there is not a parent, guardian or adult over the age of 21 present. 

(ii) That if the defendant finds himself alone with a female person under the age of 16 during the same period of time, then he has a positive duty to remove himself from that situation as soon as reasonably possible. 

Sentence and Observations of Court:

The defendant, aged 55, was found guilty after the two Assize trials of offences of incest, indecent assault, attempted indecent assault and one count of indecent assault on a 12 year old female child.  All of the offences involved a gross breach of trust.  The complainants came from troubled backgrounds.  It is clear that the daughter had a difficult upbringing and all that she wanted was a father/daughter relationship but the defendant engaged in oral sex and full sexual intercourse with her.  In her words he treated her rather than a daughter but as a "couple".  Based on the evidence, the defendant had an interest in teenage girls.  All three counts involved a gross breach of trust.  The Second Indictment involved a vulnerable victim.  The defendant acted as a sexual predator.  Offences on the Second Indictment occurred when the defendant was aged 41.  There had been a severe impact on the life of both complainants and the Court had regard to victim impact statements.  In the view of the Crown the defendant had no mitigation.  He did not plead guilty and the offences were committed when he was a mature adult between the ages of 31 and 41.  He had an appalling record including offences of dishonesty and violence but none for sexual offences.  He had expressed no remorse or regret and had not cooperated with the probation department. 

The Royal Court noted that there had been two previous cases before it involving offences of incest and in both of these cases guilty pleas had been entered and defendants had received 5 years' imprisonment.  English Case Law was of limited assistance because there it was a statutory offence.  There was a demarcation line between offences committed on complainants under 13 for which the maximum sentence was life in contrast to complainants over 13 where the maximum sentence was 7 years' imprisonment.  The approach of the Jersey courts was more flexible as the offence of incest covered a wide range from complaints from late teens who were willing, compared to the other end of the scale, where young vulnerable females were used for the sexual gratification of their fathers.  There was often the fear of damaging the relationship between mother and father.  There was often a degree of corruption. 

The Court then quoted the aggravating and mitigating factors as cited in the case of the Attorney General's (1989) Reference.  Whilst the sentencing guidance was of no assistance to the Royal Court the aggravating and mitigating factors identified were noted.  However, none of the mitigating factors were present in the current case, concerned with two victims who had suffered psychologically.  The daughter had been introduced to oral sex, an experience which she had found frightening.  The Crown sought a sentence of 8 years' imprisonment for the incest offence and a further 2 years for the indecent assaults making a total of 10 years on the First Indictment and a consecutive sentence of 3 years on the Second Indictment making a total of 13 years.  Advocate Baker had criticised the length of sentence sought.  13 years was too long for the criminal conduct.  He referred to a number of authorities.  The facts of both these cases differed enormously and the facts were never properly explained in the judgments.  There were no guidelines and it was difficult to see how any such guidelines could be applied given the range of offences.  The Court viewed very seriously the offence of incest on a troubled vulnerable young female introduced to alcohol and drugs, the abuse causing her long term psychological problems.  The Court accepted the Crown's conclusions were entirely correct in relation to both Indictments.  However, notwithstanding the appalling offences, the Court had stood back and reflected upon the totality of the sentenced and concluded that 13 years was too high.  This was not a case of prolonged abuse.  The Court's view was that a sentence of 10 years was an appropriate sentence to mark the culpability of the defendant.  In arriving at this sentence the Court would reduce the conclusions on the alternative Count 7 but made it quite clear it did not in any way diminish the seriousness of the offence and the second complainant.  Whilst it may have been only one offence, it was committed on a vulnerable girl who should have safe and secure in her mother's bed.  This offence must be met with a consecutive sentence.  Finally the Court wished to recognise the courage of the complainants in coming forward and giving their evidence. 

First Indictment

Count 1:	3 years' imprisonment.
Count 3:	8 years' imprisonment, concurrent.
Count 4:	2 years' imprisonment, concurrent.

Second Indictment

Count 7:

2 years' imprisonment, consecutive to the First Indictment.

Total: 10 years' imprisonment. 

Court satisfied under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to be no longer subject to the notification requirements of the law. 

Conditions (i) and (ii) of the restraining order under Article 10(4) granted. 

J. C. Gollop, Esq., Crown Advocate.

Advocate S. M. Baker for the Defendant.

JUDGMENT

THE commissioner:

1.        Article 5(1) of the Sex Offenders (Jersey) Law 2010 requires us, before sentencing, to specify a period that must expire before an application under sub paragraph (5) may be made.  We specify the period of 10 years and will come to the reasons later. 

2.        Turning now to the sentencing of the defendant, who is aged 55, he has been found guilty following one Assize of indecent assault, incest and attempted indecent assault on or with his daughter, who was aged 13-14 for the first two offences and 16 for the last.  In a second Assize he was found guilty of one count of indecent assault upon the complainant who was aged 12.  All of the offences involved gross breaches of trust committed in homes where the complainants, who came from troubled backgrounds, should have been safe and secure. 

3.        It is clear from the information that is available that the defendant's daughter had an extremely difficult upbringing.  She looked to her father to provide a proper family and she told the jury what she wanted was a normal father and daughter relationship.  Instead her father acted as a sexual predator introducing her to oral sex and, after giving her alcohol and cannabis, he then engaged in full sexual intercourse with her.  Once again, in the words of the daughter, rather than being a father to her he was simply treating her as though they were a couple.  The defendant was aged 31 at the times when Counts 1 and 3 were committed. 

4.        It is equally clear from the evidence that the defendant has a particular interest in teenage females as can be seen not only from the age of the two complainants in this case but also from the ages of the women with whom he was in relationships from the time those relationships commenced. 

5.        The complainant in the Second Indictment was also from a very unsettled family upbringing and was vulnerable.  At a time when she should have felt safe and secure being in her mother's bed, she was subject to the predatory sexual habits of the defendant who indecently assaulted her. The indecent assault was committed by the defendant when he would have been aged 41. 

6.        There can be no question that these offences have had a severe and long-term impact upon both complainants.  This is abundantly clear from the victim impact statements which have been provided to the Court. 

7.        In the view of the Crown the defendant has no mitigation.  He did not plead guilty; the offences were committed when he was a mature adult, between 31 and 41; he has an appalling record including offences of dishonesty and violence, although none for sexual offences; he has expressed no remorse or regret and he has decided not to cooperate with the probation department and therefore, we do not have the benefit of a social enquiry report.  The Defence did not demur from this. 

8.        In terms of incest there have been only two previous cases before the Royal Court, both involving guilty pleas where sentences of 5 years were imposed.  English cases are, in our view, of limited assistance as there incest is a statutory offence.  Under the Sexual Offences Act 1956 the age of 13, which in most cases will mean that the complainant has achieved puberty, is the demarcation line chosen so that incest by a man with a girl under 13 has a maximum penalty of life imprisonment, and over 13 a maximum sentence of 7 years' imprisonment.

9.         Here in Jersey the sentence is at large and the Court has more flexibility (which we think it is very important for the Court to retain) to take into account the often very different circumstances ranging from one end of the scale where the daughter may be in her late teens or older and is a willing participant or even the instigator, to the other end of the scale where the girl is, from the very relationship, in a particularly vulnerable position, which the father exploits for his own sexual gratification due to her dependence and inexperience and possibly fear of disrupting relations between the father and mother, or fear of the father if she refuses to comply with his demands.  The gravity of the offence therefore varies greatly according, primarily, to the age of the girl and the degree of coercion or corruption. 

10.      Although the sentencing guidelines set down in the case of Attorney General's Reference (No 1 of 1989) under Criminal Justice Act 1988 Section 36 (1989) 11 Cr. App. R. (S) 409, are of no assistance to this Court because of their being based upon a statutory regime, we think the other aggravating and mitigating factors set out in that case may be of assistance to the Court:-

"Other aggravating factors, whatever the age of the girl may be, are (inter alia) as follows:

(1) If there is evidence that the girl has suffered physically or psychologically from the incest.

(2) If the incest has continued at frequent intervals over a long period of time.

3) If the girl has been threatened or treated violently by or was terrified of the father.

(4) If the incest has been accompanied by perversions abhorrent to the girl, e.g. buggery or fellatio.

(5) If the girl has become pregnant by reason of the father failing to take contraceptive measures.

(6) If the defendant has committed similar offences against more than one girl.

Possible mitigating features are (inter alia) the following:

(1) A plea of guilty.  It is seldom that such a plea is not entered, and it should be met by an appropriate discount, depending on the usual consideration, that is to say how promptly the defendant confessed and his degree of contrition and so on.

(2) If it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations.

(3) Where the girl has had previous sexual experience.

(4) Where the girl had made deliberate attempts at seduction.

(5) Where, as very occasionally is the case, a shorter term of imprisonment for the father may be of benefit to the victim and the family."

11.      None of the mitigating factors set out in that case are present here and in terms of the aggravating factors, the two victims have suffered psychologically.  In our view their statements make disturbing reading.  In one case oral sex was involved, albeit on an earlier occasion, which the victim clearly found frightening and disturbing, and the defendant has committed sexual offences against more then one girl, albeit not offences of incest. 

12.      The Crown seek a sentence of 8 years for the incest and 2 years for the indecent assault committed when his daughter was 16, which it regards as a separate incident to be treated consecutively, giving a total of 10 years for the First Indictment.  The Crown then seeks a sentence of 3 years for the indecent assault under the Second Indictment to be consecutive which would give a total of 13 years' imprisonment. 

13.      Mr Baker limited his submissions to the length of the sentences arguing that 13 years in the totality is too high.  He referred us to a number of cases and to the commentary of Cyril Whelan but the facts of these cases differ enormously in circumstances where the full details are never properly explained or set out either in the reports or the commentaries.  There are no guidelines applicable in this jurisdiction and it would be very difficult to have any bearing in mind the very different circumstances in which these offences take place. 

14.      We wish to say from the outset that we regard the offence of incest committed on such a vulnerable girl who came from a troubled background and who looked to the defendant as her father for love and protection only to have that grossly abused with the long term psychological effects we can see from her statement as abhorrent.  On behalf of society we must make it clear that such conduct will be met with condign punishment.  We express the same sentiments in relation to the other offences committed against both complainants.  We therefore accept the conclusions of the Crown on the two indictments. 

15.      However, notwithstanding the appalling nature of these crimes, we have to stand back and look at the totality of the sentences sought by the Crown and, after careful reflection, we do agree with Mr Baker that 13 years is too high, bearing in mind that we are not dealing here with a prolonged course of conduct.  In our view 10 years is the appropriate sentence to meet the criminality of the defendant and we are going to achieve that by making the sentence on Count 4 of the First Indictment concurrent and reducing the sentence on Count 7 of the Second Indictment to 2 years. 

16.      We wish to make it clear that this does not in any way diminish the seriousness of the offence in relation to the second complainant, accepting, as we must, that the defendant stands to be sentenced for the one incident alone.  This was an offence committed against a vulnerable girl whose mother was unwell in the very heart of what should have been the safest place for her, namely in her mother's bed.  The prolonged impact upon her is clear from the statement.  In our view this offence must be met with a consecutive sentence. 

17.      Finally, before passing sentence, we would wish to formally recognise the courage of the two complainants in coming forward and giving their evidence before a jury. 

18.      On Count 1 of the First Indictment you are sentenced to 3 years' imprisonment, on Count 3; 8 years' imprisonment, concurrent and Count 4; 2 years' imprisonment, concurrent.  On the Second Indictment you are sentenced to 2 years' imprisonment, consecutive to the other counts, which makes a total of 10 years. 

19.      Turning to the Sex Offenders Law we agree with the Crown that there are no reasons justifying a shorter period than 5 years set out in Article 5(4) in relation to the notification requirements.  The defendant has been assessed at a medium risk of sexual recidivism and scored high in terms of combined sexual and violent recidivism.  We take into account his not guilty pleas and lack of any cooperation with the probation department and agree with the Crown that 10 years is the appropriate period.

20.      Turning to the restraining orders sought we again agree with the Crown that the defendant poses a threat of serious sexual harm and that a restraining order is appropriate in the following terms:-

(i)        That for a period of 5 years from the date of the defendant's release from custody he be prohibited from being alone with any female person under the age of 16 years.  The person will be considered to be alone if there is not a parent, guardian or adult over the age of 21 present.

(ii)       That if the defendant finds himself alone with a female person under the age of 16 during the same period of time, then he has a positive duty to remove himself from that situation as soon as reasonably possible.

Authorities

Sex Offenders (Jersey) Law 2010.

Sexual Offences Act 1956.

Attorney General's Reference (No 1 of 1989) under Criminal Justice Act 1988 Section 36 (1989) 11 Cr. App. R. (S) 409.

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

Archbold 2012 Edition.

R-v-Corless (1989) 11 Cr. App. R. (S) 47.

AG-v-C [2009] JRC 177.