Jersey Unreported Judgments

Inferior Number Sentencing - drugs - importation - Class B - larceny - malicious damage - improper use of telecommunication system - indecent photographs - indecent assault - procuring an act of gross indecency.

[2013]JRC128

Royal Court

(Samedi)

26 June 2013

Before     :

Sir Michael Birt, Kt, Bailiff, and Jurats Marett-Crosby and Crill.

The Attorney General

-v-

Guy William Olivotti

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

First Indictment

6 counts of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Counts 7, 8, 9, 10, 11 and12).

Third Indictment

1 count of:	Larceny (Count 1).
1 count of:	Malicious damage (Count 2).

Fourth Indictment

9 counts of:	Improper use of public telecommunication system, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Counts 5, 6, 7, 8, 9, 10, 11, 12 and 13).
5 counts of:	Inciting the making of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 14, 15, 16, 17 and 18).
8 counts of:	Possessing an indecent photograph of a child, contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (Counts 19, 20, 21, 22, 23, 24, 25 and 26).

Fifth Indictment

3 counts of:	Indecent assault (Counts 2, 3 and 6).
2 counts of:	Procuring an act of gross indecency (Counts 4 and 5).

Age:  23.

Plea: Guilty.

Details of Offence:

First Indictment

535 grams of cannabis and 1,701 diazepam tablets were imported over the course of twelve postal importations, contrary to the Customs and Excise (Jersey) Law 1999, for which two co-defendants have already been sentenced.  Olivotti was involved in six (three cannabis importations totalling 224 grams and three diazepam importations of 1,301 tablets).  The importations were instigated by a co-defendant, Baugh.  Delivery addresses used were those of Lawlor, the remaining co-defendant, and himself.  He was a willing participant.  The importations relevant to Olivotti were as follows, in date order and indicating where the importation was either estimated (based on evidence) or seized by Customs: (6) 100 grams cannabis (estimated); (7) 300 diazepam tablets (estimated); (8) 28 grams cannabis (estimated); (9) 500 diazepam tablets (estimated); (10) 96 grams cannabis (seized); (11) 500 diazepam tablets (seized).  The drugs seized and estimated had a minimum street value of approximately £8,000.  Drugs were for personal use or to be shared between co-defendants; there was no evidence of financial benefit for drug trafficking or of an intention to supply on a wide commercial scale. 

Second Indictment

Olivotti stole from his own home address - and subsequently damaged - an Apple iPhone 4 mobile telephone.  The phone belonged to an electrician, Andre Bowman, who was carrying out works at that same address.  A Compensation Order was also sought in respect of these offences under the Criminal Justice (Compensation Order)(Jersey) Law 1994. 

Third Indictment

Olivotti sent six obscene text messages and three obscene images if his genitalia to a female child aged 15, contrary to the Telecommunications (Jersey) Law 2002; he incited the making on four occasions of an indecent photo of that same child and was in possession of nine indecent photos of the child, contrary to the Protection of Children (Jersey) Law 1994.  These offences all related to communications by mobile phone or internet chat with the same girl, a 15 year old, with whom he was in a relationship.  There was no evidence that he had possessed or sought images of any other underage children. 

Fourth Indictment

Three offences of indecent assault on the same girl when she was aged 15 years, involving pressing his penis against her bottom when clothed and inserting his finger in her vagina; two offences of inciting an act of gross indecency by that same child by procuring that she touch his erect penis. 

Details of Mitigation:

Consensual and loving relationship with the girl concerned who gave testimonials in his favour; no evidence of a general attraction towards underage girls; good character; relative youth, guilty pleas; background reports demonstrated that he had a very unstable and unsettling upbringing and found it difficult to form relationships. 

Previous Convictions:

No previous convictions. 

Conclusions:

First Indictment

Count 7:	4 months' imprisonment.
Count 8:	4 months' imprisonment, concurrent.
Count 9:	4 months' imprisonment, concurrent.
Count 10:	4 months' imprisonment, concurrent.
Count 11:	4 months' imprisonment, concurrent.
Count 12:	4 months' imprisonment, concurrent.

Third Indictment

Count 1:	2 months' imprisonment, consecutive to First Indictment.
Count 2:	1 month's imprisonment, consecutive to Count 1.

Fourth Indictment

Count 5:	1 month's imprisonment, consecutive to First Indictment.
Count 6:	1 month's imprisonment, concurrent.
Count 7:	1 month's imprisonment, concurrent.
Count 8:	1 month's imprisonment, concurrent.
Count 9:	1 month's imprisonment, concurrent.
Count 10:	1 month's imprisonment, concurrent.
Count 11:	1 month's imprisonment, concurrent.
Count 12:	1 month's imprisonment, concurrent.
Count 13:	1 month's imprisonment, concurrent.
Count 14:	1 month's imprisonment, consecutive to Count 1.
Count 15:	1 month's imprisonment, concurrent.
Count 16:	1 month's imprisonment, concurrent.
Count 17:	1 month's imprisonment, concurrent.
Count 18:	2 months' imprisonment, consecutive to Count 1.
Count 19:	2 months' imprisonment, concurrent.
Count 20:	2 months' imprisonment, concurrent.
Count 21:	2 months' imprisonment, concurrent.
Count 22:	2 months' imprisonment, concurrent.
Count 23:	2 months' imprisonment, concurrent.
Count 24:	2 months' imprisonment, concurrent.
Count 25:	2 months' imprisonment, concurrent.
Count 26:	2 months' imprisonment, concurrent.

Fifth Indictment

Count 2:	10 months' imprisonment, consecutive to First Indictment.
Count 3:	10 months' imprisonment, concurrent.
Count 4:	10 months' imprisonment, concurrent.
Count 5:	10 months' imprisonment, concurrent.
Count 6:	10 months' imprisonment, concurrent.

Total: 21 months' imprisonment.

Forfeiture and destruction of the drugs sought.

Compensation order in the sum of £674 sought.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse from 15^th March, 2013, before the accused is permitted to apply to no longer be subject to the notification requirements.

Sentence and Observations of Court:

The Court believed, given the "exceptional mitigation" in favour of the defendant, that the recommendations of the social enquiry and psychological reports should be followed in that a non-custodial sentence would be the best way of preventing any reoffending.  The Court had in mind the fact that the sexual offences were at the lower end of the scale; that the girl involved was an enthusiastic and willing participant; that she was 15 years old and had not made a complaint, indeed that she had written to the Court in support of him; that the relationship had begun virtuously as one of friendship and that they had been drawn together by mutual feelings of vulnerability before the relationship became suggestive and then sexual. 

The Court stressed however, that the defendant needed to be aware of the consequences of his actions, that young girls are entitled to protection from themselves, and that he should be able to exercise self-restraint. 

The Court said that had it been minded towards a custodial sentence, it would have agreed with the Crown's conclusions. 

The Court did not make a Compensation Order as it was not satisfied that the Crown had established the market value of the phone. 

First Indictment

Count 7:	80 hours' Community Service Order, 18 months' Probation Order and a 12 month Treatment Order.
Count 8:	80 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 9:	80 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 10:	80 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 11:	80 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 12:	80 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.

Third Indictment

Count 1:	50 hours' Community Service Order, consecutive to First Indictment, 18 months' Probation Order and a 12 month Treatment Order.
Count 2:	50 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.

Fourth Indictment

Count 5:	40 hours' Community Service Order, consecutive to First Indictment, 18 months' Probation Order and a 12 month Treatment Order.
Count 6:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 7:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 8:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 9:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 10:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 11:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 12:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 13:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 14:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 15:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 16:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 17:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 18:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 19:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 20:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 21:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 22:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 23:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 24:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 25:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 26:	40 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.

Fifth Indictment

Count 2:	100 hours' Community Service Order, consecutive to First Indictment, 18 months' Probation Order and a 12 month Treatment Order.
Count 3:	100 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 4:	100 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 5:	100 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.
Count 6:	100 hours' Community Service Order, concurrent, 18 months' Probation Order and a 12 month Treatment Order.

Total: 270 hours' Community Service Order, equivalent to 21 months' imprisonment, 18 months' Probation Order and a 12 month Treatment Order.

Forfeiture of the destruction of the drugs ordered.

Order made under Article 5(1) of the Sexual Offenders (Jersey) Law 2010 that a period of 2 years elapse from 15^th March, 2013, before the accused is permitted to apply to no longer be subject to the notification requirements.

S. M. Baker, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

The BAILIFF:

1.        The most serious offences you face are the offences involving the sexual contact with the complainant in this case.  We accept that they are at the lower end of the scale of such offences, she was 15 at the time and clearly a willing participant and you were 22.  It began as a friendship, as you were drawn together by shared loss, it moved then to the suggestive and then explicit texts between you and the sending of the images we have heard described; and then to kissing and cuddling, culminating in your playing with her vagina and she touching your penis, but it was entirely mutual.  The complainant never in fact made a complaint, these offences were discovered because of the drug offences and she has emphasised that she does not want to see you go to prison. 

2.        Nevertheless, as the Courts have said frequently, young girls are entitled to protection from themselves and it is the responsibility of older men to exercise restraint.  However, we also take into account, as the reports have said, that you are not someone who has a preference for underage girls.  We are of course also dealing with the drug offences and the larceny.  The larceny and malicious damage was a mean offence and the drug offences speak for themselves, although we accept again they are towards the lower end of the scale.

3.        Advocate Haines says that there is special mitigation in this case, which means that a non-custodial sentence can be imposed.  He refers first of all to the fact that you have no previous convictions of any sort and this is particularly commendable given your very difficult upbringing, which we have read about in all the reports.  We can well understand that many people with that upbringing might have ended up offending before now, and the fact that you have not is to you credit.  You have pleaded guilty and accepted responsibility.  Most importantly, we have read the content of all the reports and it is clear that you are a vulnerable young man, liable to depression and what you need is assistance and we are pleased to say you appear to have recognised that now.  We have been persuaded to agree with all of the reports, and that the best hope of your not reoffending is to give you that assistance now.

4.        Because of the offences you are going to be subject to the notification requirements, but given that we are satisfied that you are not a risk to underage girls, we think a period of 2 years' is sufficient, before you can apply to come off it.

5.        Turning to the sentence, we agree that if it were to be prison, the Crown's conclusions are correct, despite the mitigation; therefore the total sentence would have been one of 21 months'.  But we have, as I say, been persuaded that the best course in this case is not to send you to prison but to impose a Probation Order of 18 months', concurrent on all the Counts, and also a 12 month Treatment Order on all the Counts in order to give you the assistance which you will benefit from.  We hope in particular that you mean what you say about wishing to change and we strongly urge that you try and find work, because work will change things dramatically.

6.        You do need also to be punished though for these offences, so we are going to impose community service as well.  The total number of hours we will impose is 270 hours, which is the equivalent of the 21 month sentence that we had in mind.  We have had to break that down between the various Indictments and we do that as follows, on the First Indictment, on all the Counts, 80 hours' community service, concurrent.  On the Second Indictment 50 hours' community service, concurrent on both charges, but consecutive to the First Indictment.  On the Third Indictment, 40 hours' community service, concurrent on every charge, but consecutive to the other Indictments.  And finally, on the Fourth Indictment, 100 hours' community service, concurrent on every Count, but consecutive to the others, making the total of 270 hours.

7.        We are not going to make a Compensation Order because we are not satisfied that we have evidence of the market value of this phone; otherwise we would have made a Compensation Order and we hope that, if it can be ascertained, you will voluntarily agree to pay by instalments the loss that you have caused to this unfortunate electrician. 

8.        We also order the forfeiture and destruction of the drugs.

9.        You have been given a chance.  When we read the papers it seemed likely that you would go to prison, so you have been fortunate.  We hope you take advantage of it, but you must understand that if you do not do exactly what the probation officer says, if you do not turn up for the community service and work properly and work hard, if you reoffend, if you do not turn up to Drug and Alcohol Services, then you will brought back here and at that stage the likely course is that you would go to prison, because you failed to comply with these sentences we have imposed today.  So it lies entirely in your hands.  If you perform all these properly, then we hope that we will not see you again before the Courts.  If you fail to, you will be back here.

Authorities

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

AG-v-Hilario [2010] JRC 039.

AG-v-J [2012] JRC 234.

AG-v-Powell [2007] JRC 046.

AG-v-Baugh [2013] JRC 086.