Jersey Unreported Judgments

Superior Number Sentencing - rape - gross indecency.

[2012]JRC058

Royal Court

(Samedi)

16 March 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Le Breton, Fisher, Marett-Crosby and Tibbo.

The Attorney General

-v-

A

Sentencing by the Superior Number of the Royal Court, following conviction at Assize trial on 8th February, 2012, on the following charges:

1 count of:	Rape (Count 2).
1 count of:	Gross indecency (Count 3).

Age:  60.

Plea: Not guilty.

Details of Offence:

In 1978, when he was aged about 27, the defendant raped vaginally his 15 year old adopted daughter in the marital bedroom of the family home.  Having raped her, he then forced her to perform oral sex on him, which gave rise to the count of gross indecency.  The offences occurred when the girl's natural mother and the other children of the family were away visiting family in the UK.  Her older sister was also absent.  The defendant came to the victim's bedroom door after she had gone to bed for the night.  He was naked.  He placed a hand over her mouth when she tried to scream, telling her it was no use screaming because no-one would hear her.  He forced her to the marital bedroom where he raped her on the bed.  This was immediately followed by forcing her to perform oral sex on him.  When he had finished he threatened he would kill her if she told anyone.  The victim did not tell anyone either then or for many years thereafter.  She left Jersey aged 24 and did not return.  The defendant's marriage to her natural mother ended in the 1980's. 

The allegation came to light in 2011 when a woman who worked with the defendant went to use his computer and noticed on his list of web site favourites a reference to "pre-pubescent children".  She confronted him, accusing him of accessing child pornography.  She reported the matter to the police and also told them that she had been in a relationship with the defendant in the 1980's, after his marriage to his then wife had ended.  The witness told the police that before beginning his relationship with her the defendant had confessed to raping his step-daughter in England before the family moved to Jersey.  This referred to the rape of the victim's elder sister, whose account of rape was heard by the Assize jury on the basis that it corroborated the victim's own account.  It was this, together with an analysis of the defendant's computers, which showed he had indeed been viewing paedophilic and paedophilic incest pornography which led the police to trace and interview with the victim in England.  The evidence of his computer use was admitted at trial to rebut the defence that the victim was either mistaken or lying.

The defendant did not give evidence. 

For the purposes of the Sex Offenders (Jersey) Law 2010 the Crown proposed a notification period of 10 years under Article 5 and sought restraint and child protection orders under Articles 10 and 11 of the Law. 

Details of Mitigation:

The Crown

The Crown argued that there was no mitigation.  The defendant showed neither remorse nor insight into his conduct, which he continued to deny.  In so far as he had no previous convictions it could not be said in light of his accessing child pornography that he was of previous good character.  In any event that previous good character could only properly relate to his character as a young man before committing the rape.  The probation report concluded that he represented a low risk of re-offending, albeit if he did offend sexually the risk would be of serious sexual harm to any victim.  His age - at 60 - could not be described as advanced. 

Delay in such cases was common, and it was always open to the defendant to admit what he had done. 

The Defence

The defence argued that some credit for his good character up to the age of 27 was warranted, as was an acknowledgement that he had not re-offended.  His medical condition was relied upon, although the defence produced no medical evidence in support.  The effect of a lengthy custodial on a man of his age was also advanced. 

Previous Convictions:

None.

Conclusions:

Applying the sentencing principles in Millberry, the Crown adopted a starting point of 8 years' imprisonment, increasing that by 12 months to 9 years to allow for the additional aggravating features of the gross indecency, the use of force and the threat to kill. 

Count 2:	9 years' imprisonment.
Count 3:	5 years' imprisonment, concurrent.

Total: 9 years' imprisonment. 

Order 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 sought.

Order pursuant to Article 10(4) sought with the following conditions:-

(i) For as long as A shall remain subject to the notification requirements of the said Law he is prohibited from acquiring, possessing or using any computer software which possesses the capability to destroy, delete or disguise internet activity on any device which may access the internet, or any computer software which is designed to encrypt data held on such a device, save for any encryption which may be demonstrated to be for a  legitimate purpose by the provision of any password or access code to a police officer.

(ii) For as long as A shall remain subject to the notification requirements of the said Law he shall permit access to his place of residence or vehicle by a police officer at all times for the purposes of inspecting any computer present there.

And pursuant to Article 11(4) of the said Law:-

(iii) The defendant is prohibited from knowingly being alone with any female under the age of 16 years except in the presence of that person's parent guardian or a responsible adult over the age of 21 and who is aware of his convictions.  This prohibition does not operate to prohibit contact with females under the age of 16 years, that is inadvertent and unavoidable in the course of lawful daily activities, for example when travelling as a passenger on public transport, when buying items in a shop or when ordering a meal in a restaurant. 

(iv) That in circumstances where the defendant finds himself in breach of the above mentioned order he has a positive duty to remove himself from that situation as soon as possible as reasonably possible.

Forfeiture and destruction of computers sought.

Sentence and Observations of Court:

Some credit would be given for previous good character.  His age and (unspecified) medical condition would also be taken into account.  It was correct to treat the gross indecency as an aggravating feature of the rape and impose a concurrent sentencing accordingly.  The use of force over and above that necessary to commit the offences as well as the threat to kill his victim, were aggravating factors.  

Count 2:	8 years' imprisonment.
Count 3:	5 years' imprisonment, concurrent.

Total: 8 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.

Restraint Orders were made in the following terms:-

1. For 10 years from 16^th March, 2012, the defendant is prohibited from acquiring, possessing or using any computer software which possess the capability to destroy, delete or disguise internet activity on any device which may access the internet, or any computer software which is designed to encrypt data held on such a device, save for any encryption which may be demonstrated to be for a legitimate purpose by the provision of any password or access code to a police officer.

2. For 10 years from 16^th March, 2012, the defendant shall produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone, which belongs to him or is in his possession, it being noted the such request may be made anywhere including by the police attending at his place of residence. 

Child Protection Orders were made in the following terms:-

1. Until further order, the defendant is prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent, guardian or a responsible adult over the age of 21 and who is aware of his convictions.  This prohibition does not operate to prohibit contact with females under the age of 16 years that is inadvertent and unavoidable in the course of lawful daily activities, for example, when travelling as a passenger on public transport, when buying items in a shop, or when ordering a meal in a restaurant. 

2. That in circumstances where the defendant finds himself in breach of the above mentioned Order, he has a positive duty to remove himself from the situation as soon as reasonably possible. 

3. A specific child protection order in respect of two named individuals and of any further children born to their parents during the currency of the order was made in terms that prohibited the defendant until further order from contacting or approaching them directly or indirectly. 

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 23^rd February the Court ordered reporting restrictions to apply until the defendant's appeal which was set down for 21^st May, 2012, and that order continues to apply. 

2.        The first matter that we have to deal with is the question of the notification requirements and the application by the Attorney General for a restraining order under the Sex Offenders (Jersey) Law 2010.  The defendant is automatically subject to the notification requirements but it is for the Court to settle the period during which the defendant is not permitted to apply to be released from those notification requirements.  The Crown moves for a period of 10 years and the Court thinks that is the correct figure and so in accordance with Article 5 the defendant is subject to the notification requirements and cannot apply to have them disapplied to him for 10 years from today. 

3.        I now turn to the question of restraining orders.  The Court is satisfied under Article 10(4) that the defendant poses a threat of serious sexual harm to the public and accordingly is minded to make restraining orders as follows. 

4.        The Crown moves for restraining orders to be time linked to the subsistence of the notification requirements.  It is always important when looking at English decisions on the sexual offences prevention orders to recognise that their legislation is not entirely consistent with our own but nonetheless, looking at the English regime, in R-v-Smith [2011] EWCA Crim 451, the English Court of Appeal said at paragraph 17:-

"It does not follow that the duration of a sexual offences prevention order ought generally to be the same as the duration of notification requirements.  Notification requirements and the conditions of a sexual offences prevention order are generally two different things.  The first require positive action by the defendant who must report his movements to the police.  The second prohibit him from doing specified things.  Ordinarily there ought to be little or no overlap between them.  If circumstances require it, we can see no objection to the prohibition provisions of a sexual offences prevention order extending beyond the notification requirements of the statute.  It may also be possible that a sexual offences prevention order for less than an indefinite period might be found to be the right order in a case where the notification requirements endure forever.  That also is permissible in law."

5.        For that reason we are minded to think that the approach which has been taken by Mr Jowitt on behalf of the Attorney General is not one that ought to be followed.  We also think that it is an approach which is capable of muddling where the burden of proof lies in relation to a sexual offences prevention order equivalent i.e. a restraining order, under Article 10 of our legislation.  The orders we are going to make are as follows.  They will last for 10 years from today subject to Article 10(11) of the Sex Offenders (Jersey) Law 2010 which enables the Attorney General to apply to renew those orders and of course enables the defendant to apply to have the time period shortened; in the absence of either application they will last for 10 years from today:-

(i)        The defendant is prohibited from acquiring, possessing or using any computer software which possesses the capability to destroy, delete or disguise internet activity on any device which may access the internet, or any computer software which is designed to encrypt data held on such a device, save for any encryption which may be demonstrated to be for a legitimate purpose by the provision of any password or access code to a police officer.

(ii)       The defendant shall produce to a police officer, forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone which belongs to him or is in his possession, it being noted that such request may be made anywhere including by the police attending at his place of residence.

The third and fourth orders will be as Advocate Preston proposed to us, in place of paragraph 3 of Mr Jowitt's order:-

(iii)      The defendant is prohibited from knowingly being alone with any female under the age of 16 years except in the presence of that person's parent, guardian or a responsible adult over the age of 21 and who is aware of his convictions.  This prohibition does not operate to prohibit contact with females under the age of 16 years that is inadvertent and unavoidable in the course of lawful daily activities, for example when travelling as a passenger on public transport, when buying items in a shop or when ordering a meal in a restaurant. 

(iv)      That in circumstances where the defendant finds himself in breach of the above mentioned order he has a positive duty to remove himself from that situation as soon as reasonably possible. 

The Court considers that first of all it is right that the restraining order be limited to contact with females and secondly, that it is not appropriate for supervised access to be at the direction of the Children's Service and that is why the Court makes the order as contended for by Advocate Preston:-

(v)       Until further order the defendant is prohibited from contacting or approaching directly or indirectly the children of Mr and Mrs C, namely D and E, and that continues at any time and that applies also to any other child who may be born during the currency of this order to those parents.

6.        The defendant falls to be sentenced on a count of rape and a count of indecent assault for which he was convicted before the Assizes. 

7.        The evidence from the complainant was that when she was aged 15 the defendant came to her room, put his hand over her face and told her to be quiet, he forced her to the marital bed, he did not say anything, she did not say anything, she was trying to scream, he told her not to cry, he then, according to her, raped her on the bed, he forced himself on her and, she says, "I couldn't do anything, I was too frightened, he forced his penis into my vagina, he penetrated a few times, I can't remember how many, he was controlled, he knew what he was doing.  He said don't try screaming, no-one will hear you."  Subsequently he forced his penis into her mouth.  He was asked by her if she could go to the toilet and she said that he replied "Just do it there" just go to the toilet where she was.  Subsequently, she told the jury, he said to her "Don't tell anyone else or I will kill you".

8.        The Court approaches the question of sentence having regard to the English Court of Appeal decision in R-v-Millberry [2003] 1 WLR 546 which has been applied in this Court previously and we have looked at the cases of AG-v-Donnelly [2009] JRC 170 and AG-v-X [2010] JRC 111 which were in the bundle.  We accept the approach which both the Crown and Mr Preston have urged on us that forced oral sex is an aggravating factor to be taken into account on Count 1 and that the sentence on Count 2 can thus run concurrently.  We also consider that the threat to the victim, aged 15, with death if she told anyone was an aggravating factor.  The breach of trust by reason of her age and her relationship to him is not an aggravating factor because that is already built into the starting point which we take as being 8 years.  We have had regard to the victim impact statement and it is plain from that statement that the offences of which the defendant has been convicted have had a very serious impact on the victim. 

9.        Mr Preston has said everything that could properly be said and we have taken into account everything indeed that he has said.  In particular we think that some credit is available to the defendant for his age and his state of health and furthermore some credit, although not much because these offences are very serious, can be given to him for good character certainly up to the age of 27.  We take into account this was a single incident.  Nonetheless, it was a very serious offence and inevitably it must be marked with a lengthy period of imprisonment.

10.      Having regard to the conclusion of the jury to find you guilty of these offences and to all the circumstances the Court sentences you to a period of 8 years' imprisonment on the first count.  There is a sentence of 5 years' imprisonment on the second count which runs concurrently, making a total of 8 years' imprisonment. 

11.      We also order that the two computers be forfeited and destroyed. 

Authorities

Sex Offenders (Jersey) Law 2010.

Criminal Justice (Forfeiture Orders)(Jersey) Law 2001.

R-v-Smith [2011] EWCA Crim. 451.

R-v-Smith [2012] 1 All ER 458.

R-v-Millberry [2003] 1 WLR 546.

AG-v-Donnelly [2009] JRC 170.

AG-v-X [2010] JRC 111.

AG-v-Godwin [2007] JLR N 22.

AG-v-Velosa [2011] JRC 026.