Jersey Unreported Judgments

Superior Number Sentencing - attempted rape.

[2015]JRC083

Royal Court

(Samedi)

27 April 2015

Before     :

Sir Michael Birt, Commissioner, and Jurats Fisher, Nicolle, Milner, Liston and Blampied

The Attorney General

-v-

Duarte Nuno Araujo Drumond Correia

Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial by Jurats on 2^nd March, 2015, on a charge of:

1 count of:

Attempted rape (Count 1).

Age:  19.

Plea: Not guilty.

Details of Offence:

On 4^th August, 2014, the victim was walking home from a friend's house in an intoxicated condition.  As she passed Howard Davis Park, the defendant followed her before accosting her in a car park and kissing her.  He then took her to a private parking area in Chapel Lane where he pinned her against a wall and attempted to rape her.  He ejaculated on her at which point he was disturbed by a passer-by who was walking his dogs.  He was challenged and fled the scene, chased by a member of the public.  The victim ran to a nearby house, where she made a 'recent complaint' of rape.  Other members of the public assisted, by identifying the house that the defendant ran to.  Police attended and the defendant was arrested.  He was interviewed and denied the offence, claiming that the victim instigated the sexual encounter. 

At trial (before Jurats) the defence claimed that the victim had 'made up' the complaint of attempted rape, to conceal the fact that she was in possession of a small amount of cannabis and to preserve her relationship with her then partner, which was unstable. 

On 2^nd March, 2015, following a four day trial, the defendant was convicted by the Jurats.  Through the Commissioner, the Jurats expressed the view that for the purpose of sentencing, they were sure that at the time of the offence the defendant knew that the victim was not consenting.  The defendant showed no remorse and continues to deny the offence. 

Details of Mitigation:

The defendant had little mitigation available.  He did not have the benefit of credit for plea and was convicted following a four day trial. 

The principal mitigation available to the defendant was his youth and personal circumstances. 

The defendant produced numerous character references, which were taken into consideration.  

Previous Convictions:

None.

Conclusions:

The Crown submitted that a custodial sentence was necessary for a variety of reasons.  Firstly it should mark the gravity of the offence and serve as a deterrent to others.  Secondly it should punish the offender, and last but by no means least it should emphasis the public disapproval and the need to protect women. 

Taking the defendant's youth into account, the Crown applied a reduction in the sentence sought. From a starting point of 8 years' the Crown moved for a sentence of 6 years' youth detention. 

Count 1:

Starting point 8 years' imprisonment.  6 years' youth detention.

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.

Recommendation for deportation sought.

Sentence and Observations of Court:

The Court described the attempted rape as 'every woman's nightmare'.  The Court noted that all the factors of a rape were present save the actual penetration.  The Court found that the two main aggravating factors were the fact that the defendant had deliberately selected a lone vulnerable female and had exercised a modest degree of abduction.  The Court noted that the aggravating factors could lift the starting point from 5 years, but not to the 8 years as sought by the Crown.  The Court noted the Authorities referred to by the defence, but reiterated the danger of trying to compare cases like by like.  In the present case the Court considered that the aggravating factors balanced out the mitigating factors and from a starting point of 5 years, the Court ended at a sentence of 5 years youth detention. 

Count 1:

Starting point 5 years' imprisonment.  5 years' youth detention.

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 made. 

No restrictive orders made.

Recommendation for deportation made.

The Court publicly commended the actions of Mr Talibard, the passer-by who intervened and gave chase, leading to the arrest of the defendant, so he may be brought to justice. 

R. J. MacRae, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE commissioner:

1.        It must be every woman's nightmare to be sexually attacked by a stranger in the street at night.  And that is what you did.  You accosted a clearly intoxicated woman on her way home and attempted to rape her.  You held her against a wall in a car park, just off a quiet road, and you attempted to penetrate her vagina from behind.  You were unsuccessful, but you nevertheless ejaculated.  Fortunately you were interrupted by a passer-by who was walking his dogs. 

2.        The English and Jersey Courts of Appeal have both laid down a starting point of 5 years' imprisonment for an offence of rape in a contested case without aggravating or mitigating features.  The leading English authority is the case of R-v-Milberry [2003] 1 Cr App R 25 following the earlier case of R-v-Billam and Others [1986] 1 WLR 349 and the leading Jersey case is Da Graca-v-AG [2006] JCA 038 where the Court said this at paragraph 3:-

"The sentencing policy of the Royal 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. Milberry [2003] 1 WLR 546. The effect of these decisions is that in a contested case with no mitigating or aggravating factors, the starting point will be a sentence of five years' imprisonment. The presence of any one of a number of specific aggravating factors will increase that starting point in such a case to eight years, fifteen years or life. The relevant starting point must then be reviewed against the whole range of relevant mitigating factors and other aggravating factors, and increased or reduced accordingly to produce the final sentence. This two-stage process can seem unduly mechanical. However, it needs to be borne in mind, as all the cases have emphasised, that these are only guidelines. Cases of rape are infinitely varied. Each one is unique. The sentencer is called upon to make a judgment about the cumulative effect of all the circumstances of the offence. Where there are major aggravating factors present, it may make little difference whether they are treated as increasing the starting point or the amount which is added to the starting point."

3.        Now the Crown accepts that none of the nine aggravating factors listed in Billam and Da Graca are present in this case but the Crown has listed nine other aggravating factors in its summary, including the fact that the victim was clearly intoxicated and therefore vulnerable, that she was taken against her will into a dark car park, and that there was full ejaculation near her vagina. 

4.        Turning to the question of attempted rape, in Billam the Court said this at 352:-

"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 is 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."

We have been referred today to the case of AG-v-Vincent [2013] JRC 203 and that was such a case. 

5.        In our judgment in this case the attempted rape is not more serious than the full offence but it is not less serious and there should be no reduction.  The attack involved everything one might expect in sexual intercourse except actual penetration and that was not through any lack of trying on your part. 

6.        In mitigation Advocate Fogarty has referred, quite rightly, to the fact that you are under 21.  At the time of the offence you were a few days short of your 20^th birthday.  Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 therefore applies but we are satisfied that the offending in this case was so serious that a non-custodial penalty cannot be justified.  Advocate Fogarty, very realistically, did not suggest otherwise.  Nevertheless, as the authorities have made clear, there should be a reduction in the sentence to reflect your youth, albeit that the amount of the reduction may be affected by how young the offender is.  The second key aspect of mitigation is your good character.  We have read the letters and references; it is clear not only that you have no previous convictions but that you are a hard working young man who has a good employment record and who is well regarded by his friends and family. 

7.        The Court finds that there are two aggravating features in this case.  First, that you selected a lone, intoxicated and vulnerable female, and secondly, that there was a modest element of abduction in that you took her to this dark car park in a quiet street.  However, we do not agree with the Crown that the aggravating features present are sufficient to lift the starting point from 5 years to 8 years.  Nevertheless, as the extract from Da Graca makes clear, the aggravating features can lift the sentence from the nominated starting point of 5 years in this case. 

8.        We have considered the other cases put forward by Advocate Fogarty, and indeed by the Crown, but we remind ourselves of the danger of trying to compare the detailed facts of one case with another so as to arrive at a sentence.  We have approached this in accordance with the guideline cases which we have described. 

9.        In our judgment the aggravating features which we have just described balance out the mitigating features of your youth and your good character.  Having taken therefore a starting point of 5 years' youth detention, we find that we end up at that level, having taken into account both the aggravating and mitigating features. 

10.      The sentence of the Court is one of 5 years' youth detention and I must tell you that you may be subject to supervision upon your release. 

11.      We also order that it will be 5 years from today before the defendant can apply to come off the notification requirements. 

12.      We turn next to deportation.  The Court has no hesitation in concluding that the defendant's continued presence in the Island would be detrimental.  This was a serious offence.  In addition the defendant is estimated as being at moderate risk of reoffending.  We accept the point made by Advocate Fogarty that from the social enquiry report this may well be largely because of the factor that the defendant has not been in a cohabiting relationship for two years and that this is thought to be a risk factor.  We acknowledge the difficulty in thinking that that is so and therefore we do not place great weight on the risk of reoffending, although clearly that is what the report says; we place our finding of detriment mainly on the seriousness of this offence.  We balance against that, of course, the right to family life of the defendant and his family members.  The defendant only came to Jersey in January 2014.  He joined his parents who had been here for many years, the father for longer than the mother.  The defendant was brought up in Madeira, his father having left to work here at an early age so he only saw him occasionally and the mother having left when he was a teenager.  He has members of his extended family in Madeira and, as we say, stayed there until January 2014.  In the circumstances we do not consider it would be disproportionate to recommend deportation.  The Court is determined to do what it can to protect the interests of women walking home alone in Jersey.  We consider that the public interest in this case outweighs the interference with the family life of the defendant and his family. 

13.      We therefore make the recommendation for deportation. 

14.      Finally, before leaving this case, we would like to publically commend Mr Talibard.  He was the witness who came upon this incident, made immediate intervention which enabled the victim to escape and, most particularly, he then gave chase to the defendant and phoned the police as he did so; his actions enabled the police to track down the defendant to his home almost immediately with the result that he has been brought to justice.  So we would be grateful if the Attorney would pass on our commendation to Mr Talibard. 

15.      That is the sentence of the Court. 

Authorities

Sex Offenders (Jersey) Law 2010.

R-v-Milberry [2003] 1 Cr App R 25.

R-v-Billam and Others [1986] 1 WLR 349.

AG-v-Da Graca [2005] JRC 161.

Da Graca-v-AG [2006] JLR N 8.

Da Graca-v-AG [2006] JCA 038.

AG-v-Vincent [2013] JRC 203.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

Camacho-v-AG [2007] JLR 462.

AG-v-R [2014] JRC 197.

AG-v-Kelley [2005] JRC 175.

AG-v-Taljaard [2006] JRC 117.

AG-v-Herlihy [1995] JLR N 22.