Jersey Unreported Judgments

Application for leave to appeal against sentence of the Superior Number of the Royal Court passed on 23rd February on 2 counts of indecent assault, 1 count of incest and 1 count of attempted indecent assault.

[2012]JCA070

Court of Appeal

27 March 2012

Before     :

Sir John Nutting, Bt., Q.C., President; John Martin, Q.C., and; Jonathan Crow, Q.C..

P

-v-

The Attorney General

Application for leave to appeal against sentence of the Superior Number of the Royal Court passed on 23^rd February on 2 counts of indecent assault, 1 count of incest and 1 count of attempted indecent assault.

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

Advocate S. M. Baker for the Applicant.

JUDGMENT

crow ja:

Introduction

1.        This is an application for leave to appeal against sentence by P ("the Applicant").  An application for leave to appeal against conviction has been abandoned.  No complaint is made about the orders made under the Sex Offenders (Jersey) Law 2010.  At the close of the Applicant's oral argument yesterday, we refused leave to appeal.  We will now give our reasons.

2.        The Applicant was convicted on the 5^th July 2011 at an Assize trial on three counts of sexual offences committed against C, the Applicant's daughter, on various dates between 1988 and 1991.  They consisted of indecent assault (involving oral sex) and sexual intercourse when the victim was 13, and an attempted indecent assault (involving stroking the victim's vagina) when she was 16.  The Applicant was aged between 31 and 35 at the time the offences were committed.

3.        On a separate indictment the Applicant was also convicted in January 2012 on one count of indecent assault (involving touching the vagina and bottom) of D, a 12 year-old girl, between June and December 1998.

4.        On the 23^rd February 2012 the Applicant was sentenced by Commissioner Clyde-Smith and Jurats to a total of 10 years.  As to the First Indictment, the sentence comprised: 3 years for the offence of indecent assault; 8 years concurrent for the offence of incest; and 2 years concurrent for the attempted indecent assault.  On the Second Indictment, the Applicant was sentenced to 2 years, consecutive.  The Crown had sought a total of 13 years, comprising 8 years for incest and 2 years consecutive for the attempted assault under the First Indictment, and a further 3 years consecutive on the Second Indictment.

Grounds of appeal

5.        The appeal is based on the submission that the sentence was manifestly excessive.  That submission is in turn based on two propositions:-

(i)        that the sentence imposed for the single act of incest (8 years) was in itself manifestly excessive and

(ii)       the totality of the sentence (10 years) was out of proportion to the conduct for which the Applicant had been sentenced, serious though that conduct was.

6.        As to the sentence for incest, it is pointed out that the age of 13 is not only a watershed in the English statutory offence of incest but also in the Jersey law on sexual intercourse with minors.  In England the maximum sentence for an offence of incest with a girl aged 13 or above is 7 years, whereas the maximum sentence in relation to a victim who is under 13 is life.  Similarly, in Jersey the maximum sentence for sexual intercourse with a minor (not involving incest) is 5 years if the victim is 13 or more, but life if the victim is under 13.  The sentence imposed on this Applicant for a single offence of incest was accordingly more than the maximum sentence available for a comparable offence in England, and significantly more than the maximum available in Jersey for unlawful sexual intercourse with a minor of that age (not involving incest).  Using England as a comparator, it was suggested by reference to AG's Reference (No. 1 of 1989) (1989) 11 Cr. App. R. (S) 409 that 3-5 years was the appropriate bracket. 

7.        It is also pointed out that this was an isolated incident; no violence was used; no buggery or fellatio was committed; the victim was not impregnated; there was only one victim of incest; and the Applicant had not been a cohabiting father figure who had corrupted the victim, because they only met when she was 13.  It is suggested that the sentence of 8 years was imposed without reference to principle and was therefore manifestly excessive.

8.        Turning to English comparators, it is pointed out that AG's Reference (No. 1 of 1989) involved intercourse 2-3 times week over 4-5 years starting when the daughter was 11, and that this ultimately resulted in a sentence of only 6 years after a guilty plea.  We were also taken through the various other English cases mentioned in AG's Reference (No. 1 of 1989) in support of the proposition that a 10 year sentence could only properly be imposed for offences involving multiple acts of incest over an extended period of years.

9.        In justifying his reference to English case-law, the Applicant seeks in his written submissions to rely on the observations made in De La Haye v AG [2010] JCA 092:-

"In a relatively small jurisdiction, there will be many issues which arise too rarely for the courts to have generated a coherent body of indigenous legal principle.  In the interests of legal certainty, it is undesirable for the courts to reinvent the legal wheel each time that an issue of principle arises which is not covered by existing Jersey authority, when there is a substantial and coherent body of case law available from a jurisdiction with which Jersey has close historical links and with which, on most issues, it shares common social or moral values and a common legal culture and from which it derives most of its criminal statutes." 

In the course of oral submissions, reliance was also placed on a number of decisions of the Jersey courts in which, it was suggested, guidance had been derived in this area from English case-law - in particular the decisions in AG v Donnelly [2009] JRC 170, AG v X [2010] JRC 111 and AG v U [2011] JRC 219.  Our attention has also been drawn to the decision of the Guernsey Court of Appeal in Gunter v. Law Officers of the Crown CA 423 15 July 2011 in which that court sought to align English and Guernsey sentencing policies.

10.      The Applicant's second proposition is that, even if 8 years is accepted as the correct sentence for the single incident of incest, when taken with the other sentences passed the total of 10 years is disproportionate to his offending taken in the round.  No challenge is made to the 2 year sentence on the second indictment in itself, but objection is taken to the fact that it was ordered to run consecutively to the 8 year sentence for incest.  The Applicant says that the Court added the two sentences together "without apparently stepping back from the maths to ask whether a ten year sentence was necessary to reflect the Applicant's overall offending." 

11.      The Applicant also suggests that the Court erred in stepping back from "the prosecutor's conclusions" but failed to step back from "its own proposed sentence of 10 years and to consider totality." 

12.      He objects that he was not guilty of rape, but that his overall sentence equates with that applicable to aggravated rape.  He submits that the sentence "might have been expected to come in at around 7 years or so."  

The correct approach

13.      The issue in this case is whether the 10 year sentence was manifestly excessive.  In order to address that issue, it is necessary first to identify the correct approach, both for the sentencing court and for this court.

14.      One of the main points raised by the Applicant is the utility of English case-law and English guidelines as a point of reference.  In particular, in his written submissions he relied on the passage in De la Haye quoted above.  Of course, the judgment in that case contains observations which are both true and important.  However, the context in which those observations were made, and hence their limitations, must also be borne in mind.  As is clear from the passage quoted above, the court was dealing there with cases which involve a question of "legal principle" - in that case, the necessary mens rea as a constituent element in the substantive offence of assault.  By contrast, the appropriate level of a sentence for any particular offence, which is always going to be a fact-specific and judgmental issue, does not raise any comparable issue of legal principle. 

15.      Furthermore, whilst recognising the truth and importance of what was said in De la Haye, it is equally true and important to recognise that, in a relatively small jurisdiction with its own cultural and legal heritage, with its separate constitutional existence from that of the United Kingdom, with its own unique sentencing procedures (including a recommendation from the Attorney General and the participation of the Jurats in fixing the sentence), and with its own social issues and its own criminal landscape, the courts here are fully entitled to develop their own sentencing jurisprudence, without necessarily having to import the same starting points as apply in England - a country with its own separate constitutional status, its own distinct cultural and legal heritage, its own sentencing procedures and its own social issues and criminal landscape, all of which have some similarities to, but also significant differences from, those in Jersey.  This has been the consistent approach of the courts here, as was recently illustrated in AG v. U [2011] JRC 219, at paragraphs 12-13 (citing earlier authority to similar effect).  We also note that the Guernsey Court of Appeal, sitting with a panel of 7, has now revisited the decision in Gunter in its recent judgment in Wicks, Sharp & Towers v. Law Officers of the Crown CA 22 March 2012.

16.      One further point can be made about guidelines, particularly in an area such as incest.  Social and judicial attitudes change over time.  It is therefore not only dangerous to try drawing too much assistance from the case-law of other jurisdictions, but it is also dangerous to try drawing too much assistance from the case-law of yesteryear.  For example, one of the decisions cited in AG's Reference (No. 1 of 1989) was Stagg (1980) 2 Cr. App. R. (S) 53, in which a 4 year sentence was ultimately imposed for offences of incestuous rape and buggery over a period of 8 years:  it is highly questionable whether that would be the outcome in England now.  It is also striking that in the decision in AG's Reference (No. 1 of 1989) itself the court said that it would be an aggravating factor in any case of incest "if" there was evidence that the victim had suffered physically or psychologically from the incest:  it is questionable whether the court in England would now expect anything other than psychological suffering from a victim of incest.

17.      Accordingly, whilst it would be wrong to ignore the English case-law altogether, it would be equally wrong to fall into the habit of treating it as the correct starting point.  The correct starting point is to recognise that the sentencing court here enjoyed a wide discretion, which would be exercised by reference to the facts of the particular case in hand taking into account all relevant mitigating and aggravating circumstances, and that this court will not interfere unless it is satisfied that the sentence is manifestly excessive or that the sentencing court has erred in principle, for example by taking into account irrelevant matters in aggravation, or ignoring relevant matters in mitigation.

18.      In that context, it is obvious that various factors which some English judges have taken into account in relation to aggravation and mitigation in this kind of case (for example in AG's Reference (No. 1 of 1989) and in R v. Corless (1989) 11 Cr. App. R. (S) 47) are also likely to be relevant in these courts.  But that is simply because these are inherently and obviously relevant factors, not because their recognition as such in the English case-law gives them any special legitimacy.  Thus, the sentencing court in cases of this nature will take into account (i) the age of the victim;  (ii) whether the victim was sexually experienced;  (iii) whether any violence or threats were used;  (iv) whether any corruption was used;  (v) the extent to which there was a betrayal of trust;  (vi) whether perversions were practised;  (vii) the number of victims;  (viii) the frequency of the offending;  (ix) the period of time over which the offences took place;  (x) the defendant's criminal record;  and (xi) whether the defendant pleaded guilty, thereby saving the victim from having to give evidence.

19.      Specifically in relation to the age of the victim, it is right to recognise (as the Applicant points out) that the age of 13 is regarded by the legislator as a significant watershed, at least in relation to the maximum sentences available in relation to unlawful sexual intercourse with a minor (not involving incest) under the Loi (1895) Modifiant le Droit Criminel.  However, in exercising its sentencing powers in relation to incest, it would be wrong for the court to attach too great a significance to the question whether the victim happens to have reached any particular birthday.  Legislators are entitled to take hard-edged policy decisions resulting in hard-edged rules, which are often based either on informed debate following public consultation and expert evidence, or on political will, or both.  By contrast, the courts must move forward on a case-by-case basis.  It would be wrong for judges to adopt arbitrary and inflexible rules.  For example, some 13 year-olds may be sexually active and apparently mature for their years, whereas others will not:  it would be irrational to take disproportionate account of a victim's age.  That being so, and in the absence of any directly applicable legislation, the court is fully entitled (indeed, required) to retain a degree of flexibility.  The age of the victim is significant, but the question whether a victim has or has not reached their 13^th birthday should not necessarily make a quantitative difference to the sentence.

20.      Looking at previous case-law involving incest in the Jersey courts, the only closely comparable case mentioned in Whelan 'Aspects of Sentencing' is the case of Miller (15.4.75) at §894 where the father of a 15 year-old girl was sentenced to 5 years' imprisonment for 2 offences of incest following a guilty plea.  In the more recent case of case of AG v. X [2010] JRC 111, the defendant was convicted of indecent assaults against two victims stretching over many years and one incident of rape.  The victims were his daughter and stepdaughter.  The sentences were:  4 years for the indecent assaults and 8 years concurrent for the rape against the first victim; and 4 years for the indecent assaults against the second victim, consecutive to the sentence in relation to the first victim, making a total of 12 years' imprisonment.

The sentence for incest in this case

21.      Taking these various considerations into account in relation to the conviction for incest in this case:  (i) The victim was 13.  As such, the offence is neither at the most heinous nor at the most moderate end of the spectrum.  (ii) There was no suggestion at trial that the victim was in any way sexually active at the time of the offence.  (iii) No violence or threats were used, but the victim was given alcohol and drugs beforehand which caused her to vomit.  (iv) & (v) The Applicant was not a consistent father figure to the victim, in the sense that he did not have custody of her for any extended period of time.  However, it seems paradoxical to suggest that the Applicant's failure to perform the role of a responsible father is a mitigating factor.  Indeed, the fact that the victim had had a chaotic upbringing, and had been rejected by her mother, meant that she was all the more vulnerable, and when she met her father she turned to him for support in the hope that he would provide the parenting she had so far lacked.  Instead, he subjected her to sexual abuse.  In the circumstances, it is impossible to regard the fact that the Applicant and the victim had not been cohabiting for any length of time as a mitigating factor.  On the contrary, the fact that she was living a peripatetic and unstable lifestyle, and that the Applicant took advantage of her when she was vulnerable, are plainly aggravating factors involving a gross breach of trust.  (vi) No perversions were practised in the course of committing incest, although oral sex was the first offence.  (vii) There was only one victim.  (viii) & (ix) There was only one act of incest.  (x) The Applicant has an appalling criminal record, with 21 convictions for 119 offences including manslaughter, violence, dishonesty, and motoring offences.  However, he has no previous convictions for any sexual offences.  (xi) The Applicant pleaded not guilty.  That is not an aggravating factor, but it does mean that there is an absence of the mitigation that would have been available if he had saved his own daughter from the distress of having to give evidence:  and it may also be indicative of a lack of any contrition on his part.

22.      The Applicant did not cooperate in the preparation of a Social Enquiry Report.  Nevertheless, the Risk Assessment describes him as manifesting a medium risk of sexual recidivism, a high risk of violent recidivism and a high risk of combined sexual and violent recidivism.

23.      The victim impact statement makes distressing reading.  The victim was understandably petrified at the time.  Afterwards, she wondered if she had done something wrong.  She left school with no qualifications.  She developed a low sense of self-worth, and resorted to self harming and alcohol from an early age.  She felt a sense of social isolation because she did not feel normal.  She has subsequently been through a succession of abusive relationships.  She suffers from flashbacks and nightmares.  She takes anti-depressants.  She now has a daughter herself, about whom she is anxious and protective as a result of her own experiences.  She scored 45 on the Revised Impact of Events Scale, where a score of 30 would indicate a clinically significant problem with post-traumatic stress symptoms.  She scored 31 on the Dissociative Experiences Scale, which is above the clinically significant threshold of 30.  She scored 31 on the Beck's Depression Inventory (BDI-II), which lies within the severe depression range of 29-63.

24.      Finally, it is not unfair to mention that in the course of the sentencing hearing the Applicant's advocate was constrained to accept that he could not quibble with 7 years for the offence of incest.

25.      Taking all these factors into account, we recognise that 8 years is a severe sentence, but we cannot conclude that it was manifestly excessive.

The sentence on the second indictment

26.      As noted above, the Applicant's second proposition starts form the assumption that 8 years is the correct sentence for the single incident of incest.  It also accepts that 2 years is an appropriate sentence for the conviction on the second indictment.  Nevertheless, the Applicant says that the court failed to stand back and consider the totality of the sentence, and/or that in standing back it considered the sentence recommended by the prosecution (13 years) and not the sentence it had selected (10 years).

27.      There is nothing in either of these points.  The court did exactly what it ought to have done.  Having considered the competing arguments on the appropriate level of sentencing for the different offences, the court said this (para 14):  "We therefore accept the conclusions of the Crown on the two indictments."  Having said that, the court then went on to say this (para 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 [the Advocate for the Applicant] that 13 years is too high, bearing in mind that we are not dealing with a prolonged course of conduct.  In our view 10 years is the appropriate sentence to meet the criminality of the defendant".  Following "judicial instinct and a sense of fairness rather than any guideline" (Breen, Croke, Crook & Buckley v AG 2002/167), the court accordingly settled on 10 years as the appropriate overall sentence.

28.      The Applicant's submission that the court stepped back from "the prosecutor's conclusions" instead of stepping back from "its own proposed sentence of 10 years" must also be rejected.  As noted above, the court accepted the Crown's contentions as its own (para 14) and then stepped back to consider whether the proposed 13 year sentence was excessive.  It concluded that it was, and fixed instead upon 10 years.  Having done so, it was not then required to take a second step back to consider whether 10 years the right figure.  It had already concluded that it was.

29.      Finally, the suggestion that the sentence might have been expected to come in at around 7 years or so appears to be inconsistent with the predicate for the Applicant's second submission - namely, that 8 years is accepted, for these purposes, to have been the correct sentence for the offence of incest (albeit that concession was only made on the basis that the sentence for the separate offence should be concurrent).

Conclusion

30.      We are grateful to Advocate Baker for his measured and realistic submissions on behalf of the Applicant.  He has advanced his client's case admirably, but in the event, for the reasons we have given, we consider that the sentence was not manifestly excessive and we have accordingly refused the application for permission to appeal.

Authorities

Sex Offenders (Jersey) Law 2010.

AG's Reference (No. 1 of 1989) (1989) 11 Cr. App. R. (S) 409.

De La Haye v AG [2010] JCA 092.

AG v Donnelly [2009] JRC 170.

AG v X [2010] JRC 111.

AG v U [2011] JRC 219.

Gunter v Law Officers of the Crown CA 423 15 July 2011.

Wicks, Sharp & Towers v. Law Officers of the Crown CA 22 March 2012.

Stagg (1980) 2 Cr. App. R. (S) 53.

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

Loi (1895) Modifiant le Droit Criminel.

Whelan Aspects of Sentencing.

Miller (15.4.75).

Breen, Croke, Crook & Buckley 2002/167.