Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault.

[2014]JRC120B

Royal Court

(Samedi)

29 May 2014

The Attorney General

-v-

Anthony Edward Lally

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

Age:  33.

Plea: Guilty.

Details of Offence:

The defendant and the victim were work colleagues who, with a third individual, each occupied a separate room in a property on a lodging basis.  The defendant and the victim were friends but they were not and never had been in a relationship.  The defendant returned home very drunk one evening.  He entered the victim's bedroom while she slept, climbed into her bed, put his arms round her so she could not move and aggressively pulled her hair. She shouted at him and he left.  He returned a few minutes later, naked and climbed back into the bed.  He held onto the victim who was frozen with fear.  He slid his hand under her lower clothing and touched her vagina and also under her clothing, touched her breasts forcefully over her bra.  He eventually fell asleep and the victim left the premises and called the police.  He was found by the police naked still in her bed.  He had no recollection of the incident. 

Details of Mitigation:

First offender; guilty plea, although the plea was entered  five months after the charge; lack of previous convictions; positive good character and work record; genuine remorse; full cooperation at interview; loss of employment, career and relationship; assessed at low risk of reoffending; offence was out of character.

Previous Convictions:

None.

Conclusions:

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 sought.

Sentence and Observations of Court:

The Court reiterated that its usual policy for offences of indecent assault is a custodial sentence.  In this case the exceptional mitigation lead the Court to conclude the interests of the public could be served by a non-custodial measure.

Court satisfied under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 3 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements made. 

Ms S. E. Fitz, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You and the victim in this case and another man were work colleagues who shared a flat.  There was no romantic relationship between you and the victim; you were just friends.  On the night in question you returned home drunk and you went into her bedroom at 03.40am where she was sound asleep.  You climbed into her bed fully clothed, you put your arms around her and you pulled her hair.  She shouted "Anthony, it is me get off".  You got out of bed and you left the room.  However, you did not stay out, you returned shortly afterwards completely naked, you climbed into her bed, you touched her vagina under her knickers and you touched her breasts under her upper clothing, although over her bra.  You then fell asleep. 

2.        The victim called a friend for help and she left the premises.  When at her friends she called the police and they came along at 8.40 in the morning to find you naked and still sleeping in her bed.  Although you can recall the first part of this incident, namely when you first went into her room, you have no recollection apparently of the second part when you returned naked.  But you have from the start accepted the victim's version.  You said to the police that she was a person of integrity and if she said something had happened, you accepted that it had. 

3.        It is clear from her personal statement, which we know you have read, that this incident has had a devastating effect upon her.  It has affected her confidence and her personal relationships.  So it is not surprising that the Crown has moved for a prison sentence because that is the normal sentence for offences of this nature. 

4.        Advocate Gollop on your behalf has urged that we should treat this as an exceptional case and that having regard to the nature of the assault, which while serious was not, he says, as serious as some, and having regard to the mitigation, we should impose a non-custodial sentence.  He has referred to your remorse.  It is quite easy for people who have committed an offence to assert to the court when they come to be sentenced that they are remorseful.  We have seen many such protestations in the past and one is not always very certain that they are genuine.  But all the evidence is that in your case it is.  We have read the probation report and that comes to the conclusion that you are genuinely ashamed of what you have done and devastated at the effects that is has caused the victim and that is borne out by the many references that we have read which are impressive. 

5.        The remorse is, we think, particularly significant given that you have described the victim in this case, through your counsel, as the person you would most talk to prior to this incident.  You regarded her as a good friend; hence your willingness to accept without question that what she was saying was the truth.  She is, of course, no longer your friend because of what you have done to her but we accept that your remorse is genuine. 

6.        Secondly, we accept that it is out of character.  You, of course, have no previous convictions but it is more than that, we have read the references from a wide variety of people and it is clear that this is a case of positive good character as opposed to a simple absence of previous convictions.  Thirdly, Advocate Gollop referred to the probation report.  This assesses you as being at low risk of committing any further offence and in particular a further sexual offence.  The probation officer considers that this was an isolated incident.  Advocate Gollop has also referred to the effect this has had on your life whilst emphasising that it cannot be compared to the effect it has had on the victim's life and we entirely endorse that.  You have brought this upon yourself.  She has not brought the consequences upon herself.  Nevertheless, it is clear you have lost your job, you have suffered a short period of imprisonment, you have lost your relationship with your girlfriend, your life has been adversely affected, although we emphasise it is not to be compared to what she has suffered. 

7.        Advocate Gollop has also referred to the guilty plea and the fact that when you were first interviewed you did not seek to deny anything or allege that she consented, you simply said that if she is saying this, it must be true.  The plea was not entered early but Advocate Gollop has explained the circumstances in which that occurred and we note that and take account of it. 

8.        We have to say we have found this to be a very difficult case.  On the one hand the Court has a firm sentencing policy for offences of indecent assault.  In this case this unfortunate victim was lying in her bed where she was entitled to feel safe.  You betrayed that trust - you betrayed her feeling of safety.  As against that we are satisfied that it really was wholly out of character and that you are not a risk to women generally.  That is the evidence before us.  So in this case do the interests of society require you to go to prison or can they be met by an alternative punishment?  It has been finely balanced but we have just been persuaded that, given all the matters which Advocate Gollop has most eloquently put before us, we can proceed by way of community service as a punishment rather than prison. 

9.        We think the correct sentence would have been 12 months.  We are going to impose an order that you carry out 180 hours of community service.  Now you must appreciate how fortunate you have been.  You must carry out this community service to the letter, you must turn up when required, you must work hard and, of course, you must not reoffend.  If you do not carry out the community service properly or, of course, if you do reoffend you will be brought back and you will be re-sentenced and in that case it is very hard to imagine anything but a prison sentence. 

10.      The final matter we should deal with is the question of the notification requirement.  The minimum period before a person can apply to be removed from those requirements, which apply automatically on conviction, is 5 years but as the Court said in the case of AG-v-Z [2011] JLR 107 the court should impose a lesser period when it would be disproportionate to insist upon the 5 years.  Given all the factors we have described and in particular the assessment of low risk of reoffending and that you are not a danger to women, we think 3 years is an adequate period before you can apply to come off the notification requirement. 

Authorities

AG-v-Z [2011] JLR 107.