Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault - contempt of court.

[2013]JRC037

Royal Court

(Samedi)

15 February 2013

The Attorney General

-v-

Jose Antonio Pereira Roque

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

Age:  51.

Plea: Guilty.

Details of Offence:

The indecent assault took place during the Summer of 2009 within the lift of a residential property.  The defendant entered the lift with his young son and at the same time as the victim, a 27 year old female, entered with her 3 year old son.  When the lift began moving, the defendant started playing with the victim's hair and touching her neck.  Then, without warning, he kissed the victim on the lips.  It was a long kiss which was not reciprocated and at no point did the victim consent to being touched.  The victim did not make a formal complaint to the police until April 2010. 

The contempt of court count relates to the defendant's failure to appear in the Magistrate's Court in June 2010.  He absconded to Maderia where he remained for 2½ years.  He returned to Jersey in November 2012 when he handed himself into the police.  He was remanded in custody until sentencing. 

There were two further counts on the Indictment relating to an indecent assault and a common assault which remain on file. 

Details of Mitigation:

Guilty pleas.  In relation to the contempt of court, a guilty plea was unavoidable. 

The defendant has four children in Jersey.  The youngest is severely autistic and the child's mother relies on the defendant for support.

Previous Convictions:

Thirteen previous convictions including three indecent assaults.

Conclusions:

Total: 10 months' imprisonment. 

From the date of conviction that the defendant becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period of 5 years to elapse before the accused is permitted to apply under Article 5(5) of the Law to be no longer subject to the notification requirements of the Law.

Recommendation for deportation sought.

Sentence and Observations of Court:

In view of the totality principle and the time the defendant has spent on remand, the Community Service Orders are to be served concurrently. 

The Court observed that there was a small difference between this case and those of Donachie and Stirton in that the defendant chose to return and was not brought back to Jersey on a warrant. 

Total: 180 hours' Community Service Order, equivalent to 12 months' imprisonment, plus a 3 year Probation Order together with a Treatment Order.

From the date of conviction that the defendant becomes subject to the notification requirements of the Sex Offenders(Jersey) Law 2010 for a minimum period of 5  years to elapse before the defendant is permitted to apply under Article 5(5) of the Law to no longer be subject to the notification requirements of the Law.

No deportation recommendation made.

R. C. P. Pedley, Esq., Crown Advocate.

Advocate J. N. Heywood for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are here to be sentenced today on an Indictment which originally contained four counts but two of them have been left on file and so the two counts with which we are today concerned are an indecent assault and a contempt of court. 

2.        The indecent assault occurred in 2009 when the victim, a female aged 27, was in a lift with you and with her three year old child.  Once the lift began moving you played with the victim's hair, and then, without warning, you kissed her on the lips.  It was, we are told, a long kiss and she did not reciprocate.  She did not at any point consent to being touched.  Her child apparently subsequently asked her "What was that man doing mum?"  She must have been extraordinarily frightened.  She was in a confined space and she would not have any knowledge as to where your assault was going to lead. 

3.        The second part of the Indictment is that you left the Island when you had been charged in the Magistrate's Court and you had pleaded guilty.  You returned to your native Madeira and came back here only because your former partner agreed to pay the cost of your ticket and because she wanted your help, and you were prepared to give it, in looking after an autistic 6 year old child. 

4.        The Court has been asked to make orders in relation to deportation and the Sex Offenders (Jersey) Law 2010 and also to impose a sentence of imprisonment upon you and I have to tell you that the Court is divided as to what is the right way to deal with this case.  One Jurat favours the imposition of a custodial sentence and deportation; the other Jurat favours the imposition of community service plus a probation order and no deportation.  In the circumstances it falls to me and I have, after some careful consideration, decided to side with the Jurat who favours non-deportation and the imposition of a probation order. 

5.        I would like you to know that this has been a very marginal decision.  You have three previous convictions for indecent assault.  The Court is seriously concerned at the risk which you pose to members of the public, particularly female members of the public.  But we have taken into account in particular the possibility that the probation order which we intend to impose and the participation in the sexual offending programme, which you will be required to participate in, may provide the help and support which will enable you to avoid offending of this kind in the future.  We note that you have been in Jersey since 1992 and the indecent assault offences have been committed over a five year period or so, between 2004 and 2009. 

6.        The Court is completely satisfied that the first part of the Camacho-v-AG [2007] JCA 145 test is met, that is to say that conduct of this kind is sufficient to merit a deportation order.  And in particular the previous convictions and the description by the probation service of your being at high risk of further sexual offending supports the view that the first part of that test is met.  Nonetheless, we have to balance the interests of your former partner and your 6 year old child and I have to say that were it not for the possibility that the probation order might be successful the balance would come down, without question, in favour of deportation despite the undoubted adverse impact for your former partner and your child.  I want to say to you as clearly as possible, that if there is any repetition of this kind of conduct in the future, there is very little likelihood of a deportation order being avoided, very little likelihood indeed. 

7.        In the circumstance we are going to impose on Count 1 a Community Service Order of 180 hours and the alternative is a 12 month custodial sentence and on Count 2 a Community Service Order of 90 hours, where the alternative would have been 3 months' custody.  In relation to Count 2 I add that we do see a small difference between this case and the cases of AG-v-Donachie [2012] JRC 019 and AG-v-Stirton [2012] JRC 108 where the defendants had to be brought back on a warrant and in this case you chose to come back and we have reflected that in the order we have made.  In theory the two periods of community service should be performed consecutively, but we have had regard to the issues of totality and also to the fact that you have served some time on remand, and in those circumstance the Community Service Orders are to be performed concurrently, so the total is 180 hours' community service.  In addition you are placed on probation for 3 years and the usual conditions of the Probation Order will apply, in particular you will be required to attend such courses as are required of you by the probation service. 

8.        I warn you that any breach of the Community Service Order or the Probation Order is going to make you liable to be brought back to court and you can be re-sentenced on the two counts on the Indictment.  I am not clear that it would be open to the Court to revisit the question of deportation, but we express the hope that if this should come about, the Attorney General will consider the revisiting of the charges which have been left on file and we express the view that the Court might well be minded at that stage to give leave to the Attorney General to bring those charges forward again to enable, if there is a conviction, deportation questions to be revisited. 

9.        I cannot emphasise to you enough how unacceptable this conduct is.  Women in this Island are entitled to be protected from assaults of this kind.  The Orders that we are making have been reached with some hesitation and you should work carefully with the probation office to ensure that they stand a good chance of success. 

10.      As a matter of Law you are subject to the notification requirements under the Sex Offenders (Jersey) Law 2010 and they should apply for a period of at least 5 years before you can make any application to have the notification requirements disapplied to you.  

Authorities

Sex Offenders (Jersey) Law 2010.

Camacho-v-AG [2007] JCA 145.

AG-v-Donachie [2012] JRC 019.

AG-v-Stirton [2012] JRC 108.

AG-v-Sousa 2001/219.

Harrison-v-AG [2004] JLR 111.