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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Santos [2015] JRC 067A (07 April 2015)
URL: http://www.bailii.org/je/cases/UR/2015/2015_067A.html
Cite as: [2015] JRC 067A, [2015] JRC 67A
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Superior Number Sentencing - attempted rape - indecent assault.
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Before : |
J. A. Clyde-Smith, Esq, Commissioner, and Jurats Kerley, Marett-Crosby, Nicolle, Crill, Olsen and Grime |
The Attorney General
-v-
Joao Pedro Pacheco Santos
Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 20th February, 2015, following guilty pleas to the following charges:
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1 count of: |
Attempted rape (Count 1). |
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2 counts of: |
Indecent assault (Counts 2 and 3). |
Age: 46 but 28 at time of offence.
Plea: Guilty.
Details of Offence:
In the early hours of 1st February, 1998, the 21-year-old victim was walking home up St Saviour's Hill alone. She was followed up the hill by the defendant, then aged 29, who was a stranger to her. As she neared home, the defendant attacked her. He dragged her into a near-by field through a barbed wire fence. He made a sustained attempt to rape her, thwarted only by his inability to become fully erect and by the victim clamping her legs together (Count 1). The defendant squeezed her neck tightly, banged her head on the ground, and told her that he had a knife. The defendant told the victim that he had been following her for two weeks and threatened to kill her. She was terrified and thought that she would be killed or die of hypothermia.
The defendant forced the victim to perform oral sex on him, causing her to gag (Count 2). He then threw her to the ground and managed to perform oral sex on her despite her squeezing her legs together (Count 3). The victim may have blacked out. The defendant then dragged the victim to the middle of the field before running from the scene. The victim made her way to her parent's home and the police were called. She was examined by the Force Medical Examiner and forensic samples were taken. The victim gave a very detailed statement, but the ensuing investigation did not identify her attacker.
In 2013, a cold case review identified that advances in forensic techniques might reveal useful evidence. Samples were resubmitted and a full DNA profile was obtained from semen on a swab taken from the victim's face. This was subsequently matched to the defendant's DNA profile held by the police as a result of his 2008 conviction for grave and criminal assault.
The defendant was arrested and gave no comment answers in interview. He pleaded guilty at a very early stage in the Magistrate's Court.
Details of Mitigation:
The Crown:
Guilty plea, low risk of reoffending, no relevant previous convictions at the time of the offence (though he has a conviction for grave and criminal assault on a woman which post-dates the offence), remorse expressed in his letter (though the Crown submitted that he minimised the seriousness of his actions).
The Defence:
Submitted remorse was genuine, employment record, family man (young son), "technical" abduction, Crown's starting point too high, questioned whether the offence had had a "particularly serious" effect within the meaning in Millberry.
Previous Convictions:
Three, including a grave and criminal assault on his partner in 2008 for which he was sentenced to probation and community service.
Conclusions:
The Crown submitted that, had the offence been complete, the correct starting point in accordance with Millberry would have been 8 years, as there had been an abduction. Aggravating features increased this to 11 years. The Crown adjusted this downwards by one year as the offence was an attempt. After mitigation the Crown moved for a sentence of 6 years' imprisonment.
The facts of the indecent assaults were taken into account as aggravating the attempted rape, and therefore concurrent sentences were moved for.
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Count 1: |
Starting point 10 years' imprisonment. 6 years' imprisonment. |
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Count 2: |
4 years' imprisonment, concurrent. |
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Count 3: |
4 years' imprisonment, concurrent. |
Total: 6 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 sentencing sought.
No restrictive orders sought.
The Crown did not seek a recommendation for deportation, submitting that although the first part of the test in Camacho was clearly met, the effect on the defendant's wife and young son was such that a recommendation should not be made.
Sentence and Observations of Court:
Due to a lateness of the hour, the Court gave only a brief judgment, with written reasons to follow. The Court generally accepted the Crown's conclusions, save the adjustment for attempt.
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Count 1: |
7 years' imprisonment. |
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Count 2: |
4 years' imprisonment, concurrent. |
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Count 3: |
4 years' imprisonment, concurrent. |
Total: 7 years' imprisonment.
Order made 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 sentencing.
By a majority, no recommendation for deportation.
C. M. M. Yates, Esq., Crown Advocate.
Advocate M. J. Haines for the Defendant.
JUDGMENT
THE commissioner:
1. As can be seen the Court has been some time in discussion on the number of issues that we have had to consider and, in view of the lateness of the hour, we are going to give our decision now but we will set out our reasons in a written judgment which will follow later.
2. Suffice it to say that in our view this is a very serious case in which the victim was subjected to a terrifying, degrading and demeaning ordeal at the hands of a stranger, which has had a devastating effect on her life. In general we have accepted the conclusions of the Crown, save in respect of the reduction for this being an attempted rape as opposed to the full offence. We will therefore be increasing the conclusions of the Crown.
3. Starting with the Sex Offenders (Jersey) Law 2010 we confirm that 5 years will be the minimum period for the defendant to apply to be released from the notification requirements and that will date from 20th February, 2014.
4. On Count 1 you are sentenced to 7 years' imprisonment, on Count 2; 4 years' imprisonment, concurrent, on Count 3; 4 years' imprisonment, concurrent, which makes a total of 7 years' imprisonment.
5. By a majority and after a difficult discussion, the Jurats have decided not to recommend the deportation of the defendant at the end of his sentence.
6. Advocate Yates, we do ask for the Attorney General to investigate the award made to the victim by the Criminal Compensation Board to see whether that can and should be, if appropriate, revisited.
Authorities
Sex Offenders (Jersey) Law 2010.
De la Haye v AG [1995] JLR N 27c.
AG v Herlihy [1995] JLR N22a.
AG-v-Herlihy 1995/042.
AG v Donnelly [2009] JRC 170.
R v Billam (1986) 82 Cr App R 347.
R v Millberry [2002] EWCA 2891.