Jersey Unreported Judgments

Criminal Hearing - reasons regarding sentence.

[2015]JRC077

Royal Court

(Samedi)

22 April 2015

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

C. M. M. Yates, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        On 7^th April, 2015, the Court pronounced the sentence in respect of the defendant, but because of the lateness of the hour, said it would give its reasons later, which we now do. 

2.        The defendant stood to be sentenced for one count of attempted rape and two counts of indecent assault committed on 1^st February, 1998. 

3.        The Crown gave a detailed account of the facts but by way of summary, a 21 year old girl was walking home from St Helier in the early hours of the morning after an argument with her boyfriend.  She was followed by the defendant, a stranger to her, who, when she was close to her home, attacked her, dragging her through barbed wire into a field where she was subjected to a sustained attempt to rape her.  She was put in fear of her life by the threatened use of a knife and was treated with particular violence by being choked to prevent her from screaming and having her head banged against the ground.  The defendant informed her that he had been following her for two weeks.  She was then subjected to further degradation by being forced to perform and receive oral sex, which are the subject of the two charges of indecent assault.  Following this, she was then dragged further into the field before the defendant left her. 

4.        The victim ran home and the police were called immediately.  She was able to give a detailed account of this horrifying ordeal and a description of the defendant.  Samples were taken, but it was only in 2014 that, with advances in forensic techniques, a full DNA 17 profile was obtained, which was then matched with that of the defendant. 

5.        As confirmed by the Court of Appeal in Da Graca v AG [2006] JCA 038, the sentencing policy of the Court in cases of rape is based on that adopted by the Court of Appeal in England, which is currently set out in the decisions in R v Billam [1986] 1 WLR 349 and R v Millberry [2002] 1 WLR 546.  As Millberry refines the guidance given in Billam, it is convenient to have regard to the judgment in Millberry, which confirms at paragraph 19 that the starting point (used in the sense of an initial figure from which there can be upward as well as downward movement) in a contested trial is 5 years for a single offence of rape on an adult victim by a single offender manifesting none of the features identified as attracting a higher starting point. 

6.        At paragraph 20 are set out seven features which attract a higher starting point of 8 years, the relevant feature for the purposes of this case being the following:-

"iii.     The offender abducts the victim and holds him or her captive".

The Crown submitted that there was an abduction in this case and that therefore 8 years was the appropriate starting point.  

7.        Advocate Haines submitted that there had only been an abduction in a "technical sense" (as described by the Court in AG v Z [2010] JRC 016, where the victim had also been forced into a field) and that even if it was abduction, it was at the lower end of the spectrum, allowing the Court to adopt a lower starting point of say 7 years, as the Court had done in AG v Herlihy [1995] JLR N 22a, where the victim had been dragged on to a beach.  

8.        To abduct is "to carry or lead away illegally" (Shorter Oxford English Dictionary) and we were in no doubt that this was an abduction.  The victim was dragged through barbed wire into a field where she was held captive and, after the assaults, she was dragged further into the field before being released.  It makes no difference in our view whether the abduction is to a field, a beach, a garage (as in AG v De La Haye 1995/236 (4th December 1995)) or elsewhere.  The victim is forced against her will to a place where she is held out of sight, and potentially earshot, of the public.  We agreed therefore with the Crown that 8 years was the correct starting point. 

9.        Millberry then identifies nine further aggravating factors at paragraph 32 as follows:-

"i.       the use of violence and above the force necessary to commit the rape

ii.        use of a weapon to frighten or injure the victim

iii.       the offence was planned

iv.       an especially serious physical or mental effect on the victim; this would include, for example, a rape resulting in pregnancy, or in transmission of a life-threatening or serious disease

v.        further degradation of the victim, e.g. by forced oral sex or urination on the victim (referred to in Billam as 'further sexual indignities or perversions')

vi        the offender has broken into or otherwise gained access to the place where the victim is living (mentioned in Billam as a factor attracting the eight year starting point)

vii       the presence of children when the offence is committed (cf. R v Collier (1992) 13 Cr App R (S) 33)

viii      the covert use of a drug to overcome the victim's resistance and/or obliterate his or her memory of the offence

ix        a history of sexual assaults or violence by the offender against the victim."

10.      The Crown submitted that the i and v features, namely the use of violence over and above the force necessary to commit the rape and the further degradation of the victim, applied in this case, and Advocate Haines did not demur from that.  The Crown also submitted that the iv feature, namely an especially serious mental effect on the victim applied.  Advocate Haines, whilst not seeking to diminish the effect of these assaults on the victim, questioned whether there had been an especially serious mental effect of the kind given by way of illustration. 

11.      Ordinarily in these cases the Court is assessing the likely impact on the victim in the future, but unusually here we had the benefit of seeing how the assaults had affected the victim over the ensuing 17 years.  The statement of the victim is both detailed and impressive.  There is no need for us to summarise it here, but we were left in no doubt that the victim's life had been permanently and profoundly affected in a way that was especially serious. 

12.      The Crown therefore submitted that the starting point should be increased to 11 years on the basis of a completed offence of rape in a contested case. 

13.      We agreed with the Crown's submissions in this respect, although we thought it was arguable that the ii and iii features also applied.  We do not know whether the defendant had a knife, but he led the victim to believe that he did in order to frighten her; it is her belief and consequent fear that is relevant.  He told her that he had been following her for two weeks and it was clear that he had followed the victim that night for some distance; actions indicative of planning. 

14.      The Crown then sought an adjustment down from that starting point of 11 years to reflect the fact that this was an attempted rape, as opposed to the full offence.  In Billam, the English Court of Appeal said:-

"The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage.  But, as illustrated by one of the cases now before the Court, attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence."

15.      The Crown submitted that the defendant was entitled to little credit for the fact that the offence is an attempted rape and not the full offence.  He did not desist at an early stage; he made a concerted effort to complete the offence and was thwarted by his inability to become fully erect and by the courageous actions of the victim who, by clamping her legs together, prevented the offender from penetrating her.  He responded by squeezing her neck and banging her head against the ground.  Having failed to rape the victim, the defendant forced her to perform oral sex on him before performing oral sex on her, following which he then dragged her further into the middle of the field.  The Crown therefore sought a deduction of one year to a starting point of 10 years' imprisonment. 

16.      In AG v Vincent [2013] JRC 203, no reduction was made for the fact that the offence was an attempt, because the accused "made every effort to penetrate the victim and indeed, the victim thought she had been penetrated.  The only reason why he failed was because of the victim's struggles and resistance throughout."  In our view, there should be no reduction in the starting point in the case before us.  As the Crown said, the defendant did not desist at an early stage but made a concerted effort to complete the offence.  The victim told the police that he attempted to penetrate her "for what seemed like ages".  We are sure that if he had been more than semi erect he would have succeeded.  Furthermore, his persistent attempt to rape the victim was followed by the victim being forced to accept his now fully erect penis into her mouth, causing her to gag as it hit the back of her throat.  In many ways, this forced act of oral sex was a more intimate act and arguably therefore more degrading and demeaning than the full offence.  We felt that it was at least as serious and that no deduction for the fact that the attempt to rape failed was justified.  The starting point was therefore 11 years before taking mitigation into account. 

17.      Allowing for mitigation, in particular the defendant's guilty plea (which we accept was made at the earliest opportunity), the Crown had moved for a sentence of 6 years for the attempted rape, with 4 year concurrent sentences for each of the indecent assaults. 

18.      The defendant had been assessed at a low risk of re-offending, principally because these offences were committed seventeen years ago and there was no evidence to suggest that he has committed any further sexually motivated offences.  The defendant says he has little or no memory of the attack, and that it was at a time when he was drinking heavily.  He says he must have drunk too much and lost control of his inhibitions.  In his letter, he threw himself on the mercy of the Court for offences that he says were out of character and caused by "the indiscretions of a foolish young man".  He is now a decent hard-working, respectable family man with a loving family and asked us to see it in our hearts to treat him mercifully.  

19.      Advocate Haines, who very properly and ably put forward all of the arguments that could be put on behalf of the defendant, took us through a number of cases from which he concluded that the range of sentence before the Court was between the 4½ years imposed in Herlihy (on a guilty plea) and the sentence which would have been imposed in De La Haye if a guilty plea had been entered, namely 6 years.  He moved for a lower sentence, potentially of 4½ years for the attempted rape.  We did not find the exercise particularly helpful, as the Billam and Millberry guidelines had been applied to facts, mitigation and victim impact which were always different, and not always fully clear from the judgments. 

20.      Advocate Haines pointed to the fact that the defendant had no relevant convictions (although he did have a conviction for grave and criminal assault on his partner in 2008.  It was as a result of that conviction that the police were able to match the DNA that was found with the samples taken from the victim). He had a consistent employment record and over the seventeen years had moved on from whatever it was that motivated him to commit these offences.  

21.      The defendant's letter to the Court referred to the harm caused to the victim by his "foolish actions" which he later described as an "idiotic mistake".  As the Crown pointed out, this seriously minimises what he did to the victim.  In any event, the Court took into account his letter and the other letters produced. 

22.      There was some discussion amongst the members of the Court as to whether the defendant should be given a full allowance for his guilty plea, bearing in mind the strength of the DNA evidence but, it was felt important for the Court to be seen to reward defendants who enter an early plea, and thus release the victim from the ordeal of having to give evidence and face cross examination in open Court. 

23.      Millberry contains this warning at paragraph 34:-

"The Role of Guidelines

34       Before concluding our general guidance with regard to sentencing on rape and turning to the cases of the individual appellants, we would emphasise that guidelines such as we have set out above can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines.  It is essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances.  Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately.  Guideline judgments are intended to assist the judge arrive at the correct sentence.  They do not purport to identify the correct sentence.  Doing so is the task of the trial judge."

24.      The indecent assaults have been taken into account in increasing the starting point for the attempted rape and we agreed with the Crown, therefore, that the sentence imposed for those offences should run concurrently.  There was therefore no double accounting in that respect. 

25.      Standing back and looking at the circumstances as a whole, there were some members of the Court who felt that 8 years was the appropriate sentence, but it was eventually agreed to impose a total sentence of 7 years for what were very serious offences.  These were terrifying and degrading sexual assaults at night upon a young woman by a complete stranger in which she feared for her life and which have had a life changing impact upon her.  We did empathise with the position of the defendant's family, and in particular his son, who will suffer the loss of his father for important years of his life, but this case was too serious for it to be appropriate for the Court to exercise its prerogative of mercy.  

26.      We therefore imposed the following sentences.  On Count 1 (attempted rape) - 7 years' imprisonment, on Count 2 (indecent assault) - 4 years' imprisonment, concurrent, and on Count 3 (indecent assault) - 4 years' imprisonment, concurrent, making a total of 7 years.  Before doing so, and with reference to the Sex Offenders (Jersey) Law 2010, the Court ordered that 5 years should be the minimum period before the defendant could apply to lift the notification requirements, that period to run from the date of the indictment namely 20^th February, 2014. 

27.      The defendant is a Portuguese national and the issue arose, therefore, as to whether a recommendation should be made for his deportation.  The Crown submitted and the Court agreed that the first part of the test in Camacho v AG [2007] JLR 462 was met, namely that the defendant's continued presence in the Island was detrimental to the public good.  As to the second part of the test, namely whether his deportation would be disproportionate having regard to the relevant Convention rights of the defendant and others not before the Court, the defendant had lived in Jersey since 1994 and had a long term partner (who is standing by him) and a young son.  With some hesitation the Crown had concluded that the effects on the defendant's partner and child were such that a recommendation for deportation should not be made. 

28.      Some members of the Court felt that the Convention rights of the defendant and his family were outweighed by the interests of the community in having him deported but, by a majority and with the same sense of hesitation it was decided not to make such a recommendation. 

29.      In her statement, the victim said this in relation to an award that had been made in her favour under the Criminal Injuries Compensation Scheme:-

"I remember receiving a letter from a lawyer stating that they were only going to give me half of the compensation as they thought I was an easy target as I was intoxicated.  I can't remember the exact wording, but this made me feel absolutely awful, like it was my fault, like I'd put myself in this position. I wish I still had a copy of the letter as it was quite unbelievable what they had written.  This didn't help with my recovery as I blamed myself even more then."

30.      In the absence of the letter and without knowing the reasons that may have been put forward for the award made to the victim, it would be wrong for this Court to criticise the Criminal Injuries Compensation Board.  We note that under Article 15(c) of the Scheme, the Board can reduce the compensation if it considers that it is appropriate to do so, having regard to the conduct of the applicant.  We struggle with the notion that a young girl walking home at night after a row with her boyfriend, whether intoxicated or not, can be regarded as being in any way to blame for such an attack and if the victim's award was reduced for this reason, then we would be very concerned.  We therefore asked the Attorney General to look into the matter to see whether the Board should be invited to review its award.  

Authorities

Da Graca v AG [2006] JCA 038.

R v Billam [1986] 1 WLR 349.

R v Millberry [2002] 1 WLR 546.

AG v Z [2010] JRC 016.

AG v Herlihy [1995] JLR N 22a.

AG v De La Haye [1995].JLR N 27c.

AG v Vincent [2013] JRC 203.

Sex Offenders (Jersey) Law 2010.

Camacho v AG [2007] JLR 462.