Jersey Unreported Judgments

Superior Number Sentencing - indecent assault - procuring an act of gross indecency.

[2014]JRC135

Royal Court

(Samedi)

20 June 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Kerley, Marett-Crosby, Milner, Olsen and Liston.

The Attorney General

-v-

W

Sentencing by the Superior Number of the Royal Court after conviction at Assize trial on 15 April, 2014 on charges of:

4 counts of:	Indecent assault (Counts 7, 8, 9 and 10).
2 counts of:	Procuring an act of gross indecency (Counts 11 and 12).

Age:  76.

Plea: Not guilty.

Details of Offence:

The defendant was originally indicted on an Indictment containing 17 Counts against four victims.  Prior to trial some counts were withdrawn by the Crown and others were stayed by Order of the Royal Court.  The defendant stood trial in relation to the 12 Counts relating to 2 victims.

The four counts of indecent assault occurred when a female child was aged approximately 6/7 years.  They occurred in the family home in which the defendant occupied a position in "loco parentis".  Indecent assaults occurred whilst she was sitting watching TV alone with the defendant.  The defendant was sitting in an armchair and the child would share the chair with him.  He would put his arm round her waist and put his hand down her trouser bottoms.  He would then put a finger between her vaginal labia and moved it around in a circular motion.  (Counts 7-10).  The defendant would then take the hand of the child and place it on his penis outside his trousers.  He would move his hand over it in a rubbing motion.  She would pull her hand away but he would pull it back.  (Counts 11 and 12).

The offending took place approximately 40 years ago.  An allegation that the defendant had indecently assaulted the victim's daughter brought the defendant's offending to light. 

It was the Crown's submission that the acts of gross indecency were a separate form of conduct; they were additional acts to the vaginal assault and therefore capable of having an additional deleterious effect on the wellbeing of the infant.  The Crown moved for consecutive sentences on Counts 11 and 12 to the sentences moved for on Counts 7 to 10 inclusive.

Details of Mitigation:

The Crown

The defendant did not have the benefit of a guilty plea.  No previous convictions before the offending or during the 40 years since offending.  Advanced age.  No remorse as indicated intent to appeal conviction. 

The Defence

Not pre-meditated assaults.  No grooming.  Opportunistic.  No threats/force/emotional blackmail.  Short duration and of very limited repetition.  No vaginal penetration.  The Crown should have got an expert report on effect on victim rather than relying upon the Victim Personal Statement.  Emphasised age and good character.  Supportive character references provided to Court.  Possibility of appeal driven by lawyers not defendant.  Sentences for indecent assaults and procuring acts should be concurrent.  Totality of sentence.  Conclusions moved for outside what was appropriate in comparison to other cases.  Conclusions moved for too severe.  Custodial sentence not necessary or appropriate.  Low risk of re-offending.  Community Service was a direction alternative and was available. 

Previous Convictions:

None.

Conclusions:

Count 7:	3 years' imprisonment.
Count 8:	3 years' imprisonment, concurrent.
Count 9:	3 years' imprisonment, concurrent.
Count 10:	3 years' imprisonment, concurrent.
Count 11:	18 months' imprisonment, consecutive.
Count 12:	18 months' imprisonment, concurrent to Count 11 but consecutive to counts 7, 8, 9 and 10).

Total: 4½ years' imprisonment.

Order sought that from the date of sentence the accused becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period 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

Sentence and Observations of Court:

The Court confirmed that a period of 5 years was to elapse before the defendant could apply for notification requirements to lapse.  The defendant found guilty following trial by Inferior Number of four counts of indecent assault and two counts of procuring acts of gross indecency.  Offences committed on the same victim then aged 6 -7 years.  There was quite a complex set of family relationships.  The defendant in position of loco parentis.  The offences were committed whilst he was in his mid-30s.  The Court agreed with the Crown's contentions that it was not an appropriate case for a restraining order under the Sex Offenders (Jersey) Law 2010.  No credit for guilty plea and no remorse.  A man of good character.  The Court noted the contents of the character references.  The Court agreed with Defence submission that this was one set of offences with two component parts and therefore sentences should be concurrent and not consecutive.  The Court quoted from AG v Brewster.  The Court found no exceptional circumstances.  The Court had taken note of the fact that by pleading not guilty the victim had gone through the ordeal of giving evidence.  The Court had accepted the criticism of not having a professional report but felt able to have regard to the content of the Victim Personal Statement.  The Court agreed that 3 years' imprisonment was the correct sentence. 

Count 7:	3 years' imprisonment.
Count 8:	3 years' imprisonment, concurrent.
Count 9:	3 years' imprisonment, concurrent.
Count 10:	3 years' imprisonment, concurrent.
Count 11:	18 months' imprisonment, concurrent.
Count 12:	18 months' imprisonment, concurrent.

Total: 3 years' imprisonment.

Order made that from the date of sentence the accused becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period 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

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

Advocate D. M. Cadin for the Defendant.

JUDGMENT

THE commissioner:

1.        Firstly we order under Article 5(2) of the Sex Offenders (Jersey) Law 2010 that 5 years should elapse before the defendant can apply to no longer be subject to the notification requirements. 

2.        Turning to the sentencing the defendant was found guilty following a trial before the Inferior Number of four counts of indecent assault and two counts of procuring acts of gross indecency in respect of the same victim when she was 6 or 7.  There is a quite complex set of family relationships with the defendant originally facing a number of charges in respect of other victims, some of which were stayed and others of which he was acquitted. 

3.        In respect of the offences for which he stands to be sentenced today the defendant, who was then in his mid-thirties, had moved in with the victim's mother and her sibling, in or around 1974.  He was in loco parentis.  When the mother was out of the room preparing the meal or bathing the younger child he would sit watching TV with the victim.  She gave evidence that he put his arm around her waist and put his hand down her trouser bottoms.  He put a finger between her vaginal labia and moved it around in a circular motion.  These were the indecent assaults.  He would then at the same time take her hand and place it on his penis, outside his trousers, moving it over his penis in a rubbing motion.  She would pull her hand away but he would put it back.  The victim's best recollection is that this happened some four times over a course of weeks or months and it ceased after the victim complained to her mother. 

4.        The defendant, who is 76, was arrested on 29^th April, 2013, some 40 years after these offences.  The Prosecution say these were repeated offences involving vaginal interference to the point of digital insertion between the labia, against a young vulnerable child, in circumstances of extreme breach of trust.  Applying the principle set out in the case of R-v-H [2012] 1 WLR 1416 the Prosecution have moved conclusions according to the current sentencing policy or practice of this Court, taking into account the circumstances in which the offences were committed and there to the long intervening gap there had been no convictions recorded against the defendant, so he is taken fairly to have been a man of good character during those years. 

5.        The Prosecution submit that the acts of gross indecency are not subsumed within the indecent assaults and should therefore attract a consecutive sentence.  It has referred us to the case of Dykes-v-AG [1999] JLR 146 where the court said this:-

"There is no doubt at all that sentencing in cases such as this is one of the most difficult exercises that any court has to perform. Guidance can be obtained from reported cases but they have a limited use because no two cases are the same, and in the end the court has to perform what is often a most anxious balancing exercise between the competing interests of the expression of public revulsion at the betrayal of trust when a teacher sexually abuses young people in his care," (we would interpose there and of course here he was not in a position of a teacher but he was also in a position of trust), "the need to warn others who might be tempted to behave in the same way, and the requirement to reflect those aspects of the case which mitigated the offences and which should properly influence the court to a measure of mercy."

6.        Referring us to passages in Whelan on Aspects of Sentencing in the Superior Courts of Jersey the Court also referred us to the cases of AG-v-B. R. [2006] JRC 155, AG-v-G [2009] JRC 148, AG-v-C [2013] JRC 247 and AG-v-Foster [2007] JRC 201.  And having done so the Prosecution moved for sentence of 3 years for the indecent assaults and 18 months for the procuring acts of gross indecency, to be consecutive, which would give a total of 4 years and 6 months.  Notwithstanding a recommendation in the social enquiry report, the Prosecution says it can identify no proper basis on which to apply for restraining orders bearing in mind the length of time since the offending and the absence of offending in the intervening years.  As Advocate Gollop points out in a separate and further note on this matter, Article 4(b) of the Sex Offenders (Jersey) Law 2010 under that provision the court may only make an order where it is necessary to do so and the Prosecution say there is no material to support such a finding and we accept that approach and there will therefore be no restraining orders. 

7.        Turning to the mitigation, the defendant gets no credit for a guilty plea and because he continues to deny the offences, he has shown no remorse.  He is, of course, a man, as we have said, of good character.  We have looked at the many references that he has produced and it is clear that he is a respected painter and decorator with a good work ethic.  We have listened very carefully to everything Advocate Cadin has said on his behalf. 

8.        Taking first the issue of whether the sentence should be consecutive, we agree with Advocate Cadin.  These offences arose out of one set of facts with two component parts which took place one after the other if not at the same time.  In our view these offences should attract concurrent sentences. 

9.        We have considered the cases before us and the circumstances of the defendant and, in particular, the impact a sentence of imprisonment would have on his wife for whom we have sympathy.  But these are serious offences.  As was said in the case of AG-v-Brewster 2001/3:-

"Offences of indecency involving children are regarded by all right thinking people with abhorrence.  The removal of a child's innocence and the corruption of the trust which children naturally feel for adults are so serious that, other than in exceptional circumstances, they must be punished with imprisonment"

10.      We find that there are no exceptional circumstances here.  Furthermore we take note of the fact that by pleading not guilty the defendant caused the victim to go through the ordeal of giving evidence in Court and being cross-examined.  Whilst we accept the criticism of the Crown in failing to provide us with an impact statement and professional advice as to the effect of these offences on the victim, we feel we can account of what she says about the stress that the trial caused to her. 

11.      In the circumstances we therefore agree with the Crown in its conclusions that 3 years is the appropriate sentence for the indecent assaults. 

12.      On Count 7 you are sentenced to 3 years' imprisonment, on Count 8; 3 years' imprisonment, on Count 9; 3 years' imprisonment, on Count 10; 3 years' imprisonment, on Count 11; 18 months' imprisonment, and on Count 12; 18 months' imprisonment, all to be concurrent with each other, which makes a total of 3 years' imprisonment. 

13.      Finally we adjourn the issue of costs to be argued on 24^th July, 2014 at 2:30pm. 

Authorities

Sex Offenders (Jersey) Law 2010.

R-v-H [2012] 1 WLR 1416.

Dykes-v-AG [1999] JLR 146.

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

AG-v-B. R. [2006] JRC 155.

AG-v-G [2009] JRC 148.

AG-v-C [2013] JRC 247.

AG-v-Foster [2007] JRC 201.

AG-v-Brewster 2001/3.

R-v-Halloren [2004] Crim App R (S) 57.

R-v-Yates [2004] 1 Cr App R (S) 44.

R-v-D [2006] 2 Cr App R (S) 32.

R-v-Ripton Gordon [2012] EWCA Crim 354.

Attorney General's reference No 70 [2008] [W] [2009] EWCA Crim 100.