Jersey Unreported Judgments

Superior Number Sentencing - indecent assault.

[2013]JRC010

Royal Court

(Samedi)

16 January 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham, Kerley, Marett-Crosby, Nicolle, Crill and Blampied.

The Attorney General

-v-

H

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial on 11^th December, 2012, on the following charges:-

5 counts of:

Indecent assault (Counts 1, 2, 4, 6 and 7).

Age:  78.

Plea: Not guilty.

Details of Offence:

Two offences were committed against the defendant's granddaughter when she was 12 years of age.  The victim had been hospitalised due to a severe anxiety disorder and upon release from hospital was unable to attend school and therefore spent time at her grandfather's house.  On one occasion the defendant put his hands under the victim's top and held her naked breasts.  On a second occasion he fondled her naked breasts, put his hand inside the waistband of her trousers towards her crotch but stopped when she moved in such a way as to prevent him and kissed her on her naked breast. 

Two offences related to the daughter of the defendant's housekeeper who was aged between 6-9 years.  On one occasion whilst she was sitting on his lap using his computer he put his hands under her top and played with her undeveloped breasts and nipples.  These actions comprised a course of conduct which formed the basis of the second count relating to this victim. 

A further offence related to the second daughter of the defendant's housekeeper who was aged between 7-11 years.  The defendant, on various occasions, would put his hands under the victims clothing and play with her breasts and nipples and put his hands down her trousers and touch and rub her bottom. 

Aggravating features

1. The offending occurred over a 7-8 years period against these three victims who were aged from 6-12 years.

2. All the offences were committed in breach of trust.  The breach of trust in respect of the granddaughter was particularly acute as she was seriously ill and entrusted to his care at a particularly difficult time in her life.  Furthermore, the defendant was in a position of power, having complete control over the income and housing of the granddaughter's family which made disclosure of the offending much more difficult and damaging to the victim and her family.  In relation to the housekeeper's family, again their income and housing were dependent upon the defendant. 

3. Victim impact statements and a personal statement were available which illustrated the impact of the offending and the subsequent trial on the victims.  It was not however proposed by the Crown that particular psychological damage was an aggravating feature. 

Details of Mitigation:

There was no credit for a guilty plea or any evidence of remorse.  The only mitigation available to the defendant was his lack of previous convictions, positive good character evidence by numerous references provided on his behalf, and his age. 

Previous Convictions:

None. 

Conclusions:

Count 1:	4½ years' imprisonment.
Count 2:	4½ years' imprisonment, concurrent.
Count 4:	4½ years' imprisonment, concurrent.
Count 6:	4½ years' imprisonment, concurrent.
Count 7:	4½ years' imprisonment, concurrent.

Total: 4½ years' imprisonment.

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

Restraining order to commence from date of release, under Article 10(4) with the following conditions:-

i)       that the defendant is prohibited from being alone with any female person under the age of 16 years, save for any contact which is inadvertent and not reasonably avoidable in the course of daily life, without the prior written approval of the Probation Service.  He will be considered to be alone if there is not a parent, guardian or person over the age of 21 years also present who is aware of his criminal convictions; and

ii)      that the defendant is prohibited from engaging in any form of teaching, training or instruction of children under the age of 16 years or from any form of care, advice, guidance or therapy of children under the age of 16 years, or from being involved in any activities involving children under the age of 16 years, without prior written approval of the Probation Service. 

Compensation Orders sought in the sum of £5,000 for Victim 2 and Victim 3 to be paid within 3 months, or 3 months' imprisonment in default.

Compensation Order hearing for Victim 1 to be adjourned to 8^th February, 2013.

Costs of the Prosecution sought in the sum of £35,000 payable within a 3-6 month period.

Sentence and Observations of Court:

Count 1:	2½ years, imprisonment.
Count 2:	2½ years' imprisonment, concurrent.
Count 4:	2½ years' imprisonment, concurrent.
Count 6:	2½ years' imprisonment, concurrent.
Count 7:	2½ years' imprisonment, concurrent.

Total: 2½ years' imprisonment. 

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

No Restraining Order made.

Compensation orders made in the sum of £5,000 for Victim 2 and Victim 3, to be paid within 3 months, or 3 months' imprisonment in default.

Compensation Order hearing for Victim 1 adjourned to 8^th February, 2013.

Costs of the Prosecution in the sum of £35,000 payable by the defendant within a 6 month period. 

Mrs S. E. Fitz, Crown Advocate.

Advocate S. M. Baker for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for five counts of indecent assault against three children, spanning a total period of 7 - 8 years, for which he was found guilty following an Assize trial which lasted seven days.  The defendant was acquitted of three counts. 

2.        The Prosecution accept that these offences are at the lower end of the scale in terms of seriousness, in that they involved indecent touching under the clothing in the main of the victims breasts and did not involve some of the more overtly sexual and damaging behaviour that can be involved in cases of indecency, such as digital penetration or oral sex.  They did not involve any violence, coercion or threats.  However, the Prosecution submit that there are several features of the case that are important to the issue of sentencing:-

(i)        the Prosecution say they all involved a breach of trust, which in the case of the first victim can be described as appalling;

(ii)       there are three victims and the offending took place, according to the Prosecution, over a number of years, some 7-8 years, when the victims were aged between 7 and 14;

(iii)      by pleading not guilty, two of the victims had to give evidence in the presence, although not in the view of the defendant and in the presence of a not insignificant number of members of the public, and to be extensively cross-examined.  The third victim also of course had to give evidence via a television link;

(iv)      in the case of the first victim we have a personal statement, which it is clear from Whelan we should treat with caution, and in the case of the other two victims we have impact statements of the effect of the offences and the trial upon them. 

3.        Mr Baker expressed some concern over all three of these statements but the Prosecution only ask us to take them into account in this way:-

(i)        victims must have a voice in the sentencing process to balance that of the defendant;

(ii)       the statements show that in general terms, victims of abuse who have to give evidence at trial, suffer and it is right for the Court to know this; and

(iii)      the Prosecution are not putting forward psychological damage as an aggravating feature in this case and we have therefore taken into account those statements to that limited extent.

4.        The Prosecution say that the delay in these offences being reported should not constitute mitigation for the defendant partly because it is not uncommon for young victims not to disclose abuse for many years.  In this case, the Prosecution say, the delay was due to the need for the victims to mature sufficiently to understand what had happened to them.  Furthermore in this case, the defendant was in a position of financial power over them, in the case of the first victim, complete power, say the Prosecution in the sense that the defendant controlled the family's income and the house in which they live.  The Prosecution say there is minimal general mitigation available to the defendant, he has no credit for a guilty plea and his previous good character and charity work must be tempered against the fact that for some seven or eight years, whilst enjoying a good reputation amongst his peers, he was regularly indecently assaulting children in his home.  Previous good character is strong mitigation for a one-off offence but, the Prosecution say, should carry less weight in the face of continued offending.

5.        The Probation Department have assessed the defendant at the lower end of a moderate risk of sexual reconviction.  He has shown no remorse for these offences informing the Probation Department that the victims have colluded to wrongfully incriminate him, motivated by jealousy and financial gain. 

6.        The Prosecution submit that these offences against the three victims could, legitimately, be sentenced consecutively with due regard being paid to the totality principle.  As said by the Court of Appeal in Dykes-v-AG 1999/126:-

"The sentencing Court can arrange the sentences in respect of each count how it may; in the final analysis it is the length of the total period of imprisonment that matters."

7.        The Court has often said that comparison with other cases is unhelpful as each case turns on its facts.  Having made an assessment of the appropriate overall sentence it can be of assistance to look at other cases to ensure the sentence is consistent with the Court's general approach.  The Prosecution point us to the case of AG-v-BR [2006] JRC 155 which it says may be of assistance; that case concerned a serious breach of trust involving stroking of the vagina of a 6-7 year old vulnerable child, without any penetration, on at least six occasions over a period of 14 months attracting a sentence of 3½ years.  This involved one victim, a defendant of 72 years and, significantly, was after a guilty plea.  The sentence after a not guilty plea would therefore have been 5 years and 3 months.  The present case in contrast, say the Prosecution, involves three victims, serious breaches of trust particularly in relation to the first victim, offending that went on for many years and was frequent, a gruelling trial for the victims and a complete lack of remorse. 

8.        In all the circumstances and taking appropriate account of the defendant's previous good character and age, the Prosecution seek a sentence of 4 years and 6 months' imprisonment on each of Counts 1, 2, 4, 6 and 7, concurrent.  Had the defendant pleaded guilty he would have received full credit for that plea and the Prosecution say his sentence would then have been one of 3 years, which illustrates, it says, the appropriateness of the sentence for which it moves. 

9.        Turning to the Defence submissions, Mr Baker reminded the Court of the offences for which the defendant has actually been convicted; the defendant is actually to be sentenced, he said, for a limited number of offences which, in his submission and on the acknowledgement of the Prosecution, could fairly be said to be at the lower end of the scale of offending.  They amounted, Mr Baker said, to brief touching of the breasts and touching of the flat chest of a child.  There is one instance of a brief kiss on the breast and two instances of the bottom being touched.  None of these offences, he said, involved touching of the genitals in any way, let alone penetratively, nor did they involve indecent exposure or acts of gross indecency.  He said the Prosecution address was dangerously misleading when it recited the offending therefore occurred against these three children over a period of 7-8 years.  The correct formulation in his view is that the misconduct occurred on limited isolated occasions between those years. 

10.      The Defence therefore submitted that a community sentence would be appropriate and that was in the proper range of sentences of a case of this kind, citing the authority of Attorney General's Reference No 70 of 2008 [2009] 2 Cr App R (S) 64, failing which the Court should impose a suspended sentence of 15 months.  In terms of general mitigation Mr Baker put forward the following features for the Court's consideration:-

(i)        the limited nature of the sexual activity, including in particular the touching of undeveloped flat chest of a child.  He added in support of that proposition that this is an exceptional case in that he was unable to find any case in Jersey or in England in which that conduct had been recorded as an indecent assault;

(ii)       that the conduct did not involve vaginal assault, indecent exposure or any act of gross indecency;

(iii)      the limited number of occasions in which this narrow form of conduct took place;

(iv)      the total absence of threats or the use of physical or psychological force of any kind;

(v)       the absence of grooming in the case.  He said the evidence was actually to the contrary in that the defendant had often regarded the attentions of two of the victims as intrusive; he never invited them in and indeed sometimes locked the back door to prevent them coming in;

(vi)      the defendant's positive good character for charitable and community work over many decades as evidenced by the unusual number of character references which the authors have chosen spontaneously to provide;

(vii)     the fact that there has been no repetition of the conduct during the many years which have elapsed and in this regard he places particular importance on the sworn testimony of both of the defendant's step-daughters, as well as that of the other people who associated with him and his family during their childhood.  Put shortly, he said, there is no evidence to suggest that the defendant is at risk of reoffending or that he is a danger to children;

(viii)    that in his 77 year lifetime the defendant has been found to act in this way only within a narrow timespan.  There is nothing, he said, to show that he acted wrongly towards children as a matter of propensity and practice throughout his adult life or is likely to begin to do so.  It is particularly noticeable, Mr Baker said, that his computers, his camera cards, his removable hard drives and other electronic equipment were seized and analysed forensically and that his home was searched and that not one item of evidence was found to suggest any sort of paedophiliac interest or predisposition on the part of the defendant. 

11.      We have considered the submissions of both the Prosecution and the Defence very carefully.  By way of preliminary observations we do not accept that these offences can all be described as isolated; that is of course the case in relation to the first victim, Counts 1 and 2.  As to the other victims, the jury did not have, as Mr Baker suggests, in our view, two versions of the facts before them.  The defendant accepted regularly holding these two victims on his lap but denied any indecent assault; the jury had the evidence of the two victims as to the frequency with which these offences took place.  The reference in Counts 6 and 7 to various occasions, in our view, describes a course of conduct rather than isolated occurrences.  Nor do we think it right for the defendant to be sentenced as to the extent only of what he admitted to the police in his interview, in effect, ignoring the evidence of the complainants as to what occurred. 

12.      Having said that, we have to accept that without diminishing the seriousness of the offences for which the defendant has been found guilty, this case does fall at the lower end of the scale and cannot be equated to the facts in AG-v-BR.  There was no touching of the vagina or digital penetration or oral sex, and no violence, coercion or threat. 

13.      This conduct still comes within the policy of the Court that a custodial sentence will be imposed on those who indecently assault children to reflect society's abhorrence of such offences unless there are exceptional circumstances.  For that, one can look at the judgment of the Bailiff in AG-v-Welland [2003] JRC 179.  In this case the Court, by a majority, have concluded that there were no exceptional circumstances warranting a departure from that policy.  However, the Court was unanimously of the view that a sentence of 4 years 6 months' would be manifestly excessive.  We have avoided an analysis of past cases because the facts and mitigation are always so different and, indeed, they are not always fully reported.  The Court approached the sentence by looking at the totality and, by a majority, the Court has concluded that 2½ years is the appropriate total sentence and which, notwithstanding the defendant's not guilty plea, reflects the very substantial mitigation put forward on his behalf by Mr Baker.  A minority of two jurats would have imposed a shorter sentence.  For a man of 77 it constitutes a substantial sentence. 

14.      Before sentencing a person of a sexual offence of this kind, Article 5 of Sex Offenders (Jersey) Law 2010 provides that the Court must specify a period that must expire before an application to lift the notification period to which the defendant is now automatically subject.  Article 5(4), as amended, provides that:- "unless the court is satisfied that there is a reason why a shorter period would be appropriate, the period specified must be a period of at least 5 years, being a period that the court is satisfied takes into account the risk of sexual harm to the public or to any particular person or persons that the person subject to the application requirements of this Law poses by virtue of the likelihood of reoffending."

Mr Baker did not seek to argue for a shorter period than 5 years and we are satisfied that that is the appropriate period and we therefore specify a period of 5 years running from the date of the defendant's conviction. 

15.      In terms of the Restraining Orders we have to be satisfied that on a balance of probability the defendant poses a threat of serious sexual harm and that Restraining Orders are necessary.  The Prosecution rely on the probation report in this respect and that assesses, as we have said earlier, the defendant at the lower end of a moderate risk of sexual reconviction.  But having regard to the protective factors set out in that report, namely the age, the ability and lifestyle of the defendant, we are not satisfied that the defendant now poses such a risk and we decline therefore to impose Restraining Orders. 

16.      Turning to sentence, for each of Counts 1, 2, 4, 6 and 7 you are sentenced to 2½ years' imprisonment, concurrent.  That makes a total sentence of 2½ years. 

17.      Turning to the Compensation Orders, compensation payments are not opposed by the Defence for Victim 2 and Victim 3 and we therefore order the defendant to pay each of them £5,000 within three months, with a default sentence of 3 months' imprisonment to run consecutively.  The application for compensation on behalf of Victim 1 is adjourned by consent to 8^th February, 2013. 

18.      In terms of costs, an order in the sum of £35,000 is not opposed by the Defence and we therefore order the defendant to pay the Prosecution's costs in the agreed sum of £35,000 within 6 months. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

Dykes-v-AG 1999/126.

AG-v-BR [2006] JRC 155.

Attorney General's Reference No 70 of 2008 [2009] 2 Cr App R (S) 64.

AG-v-Welland [2003] JRC 179.

Hamilton and Owens-v-AG [2010] JCA 136A.

AG-v-Holland [2008] JRC 061.

Attorney General's Reference No 50 of 1997 [1998] 2 Cr. App. R. (S) 155.

Dykes-v-AG [1999] JLR 146.