Jersey Unreported Judgments

Inferior Number Sentencing - incest - indecent assault - procuring act of gross indecency.

[2015]JRC184

Royal Court

(Samedi)

4 September 2015

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Olsen and Ramsden

The Attorney General

-v-

M

N

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

M

1 count of:	Incest (Count 1).
1 count of:	Indecent assault (Count 2).
1 count of:	Procuring an act of gross indecency (Count 3).

Age:  22.

Plea: Guilty.

Details of Offence:

The defendants had begun the sexual conduct on their sister several years before they reached the age of criminal responsibility and the conduct continued for several years afterwards.  They were sentenced on the basis that there was no violence but that the victim must have felt a level of coercion arising out of the fact that most of the offending took place when the brothers were together.  They were older than their sister (by 5 years and 2 years).  It would have been clear to them that she was not a willing participant and in any event she would have been too young to consent.  They were sentenced on the basis that in the case of M, he was the instigator and led N into the offending.  He offended at least eight times during the period.  In the case of N, the offending happened after his brother had stopped and N offended at least every other month. 

Incest: Sexual intercourse on the above basis.  The victim was unclear whether penetration was in full or in part and was also unclear as to whether ejaculation had taken place. 

Indecent assault: touching breasts and vagina over and under clothing and in the case of M, inserting fingers into vagina. 

Gross indecency: Making the victim masturbate him (M) and perform oral sex on them (M and N).  N was sentenced on the basis that it was one incident of oral sex.  Ejaculation took place in the case of both brothers. 

Details of Mitigation:

Guilty pleas; age. 

Family circumstances:- parents had separated and divorced shortly before offending began and parents, the mother in particular had left the children alone on a regular basis. 

N - recently diagnosed with autism and mild learning difficulties which had affected his upbringing, schooling and ability to form relationships.  Genuine remorse.  Psychological report showed him to be at low risk of offending. 

M- qualified remorse.  Psychological report showed him to be at low risk of offending. 

In both cases no offences of this nature had been committed against the victim or anyone else since the final date in the indictment. 

Previous Convictions:

None relevant.  Driving offences in the case of M and Parish Hall only in the case of N. 

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	2 years' imprisonment, concurrent.
Count 3:	2 years' imprisonment, concurrent.

Total: 2 years' imprisonment.

From the date of conviction the defendant becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period of 5 years to elapse before the defendant 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:

Count 1:	312 hours' Community Service Order, equivalent to 2 years' imprisonment, together with an 18 month Probation Order.
Count 2:	312 hours' Community Service Order, equivalent to 2 years' imprisonment, together with an 18 month Probation Order, concurrent.
Count 3:	312 hours' Community Service Order, equivalent to 2 years' imprisonment, together with an 18 month Probation Order, concurrent.

Total: 312 hours' Community Service Order, equivalent to 2 years' imprisonment, together with an 18 month Probation Order.

From the date of conviction the defendant becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period of 2 years to elapse before the defendant is permitted to apply under Article 5(5) of the Law to be no longer subject to the notification requirements of the Law. 

N

1 count of:	Incest (Count 4).
1 count of:	Indecent assault (Count 5).
1 count of:	Procuring an act of gross indecency (Count 6).

Age:  19.

Plea: Guilty.

Details of Offence:

See M above.

Details of Mitigation:

See M above.

Previous Convictions:

See M above.

Conclusions:

Count 4:	12 months' youth detention.
Count 5:	12 months' youth detention, concurrent.
Count 6:	12 months' youth detention, concurrent.

Total: 12 months' youth detention.

From the date of conviction (1^st July, 2015) the defendant becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period of 5 years to elapse before the defendant 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:

Count 4:	180 hours' Community Service Order, equivalent to 12 months' youth detention, together with an 18 month Probation Order.
Count 5:	180 hours' Community Service Order, equivalent to 12 months' youth detention, together with an 18 month Probation Order, concurrent.
Count 6:	180 hours' Community Service Order, equivalent to 12 months' youth detention, together with an 18 month Probation Order, concurrent.

Total: 180 hours' Community Service Order, equivalent to 12 months' youth detention, together with an 18 month Probation Order.

From the date of conviction (1^st July, 2015) the defendant becomes subject to the notification requirements of the Sex Offenders (Jersey) Law 2010 for a minimum period of 2 years to elapse before the defendant is permitted to apply under Article 5(5) of the Law to be no longer subject to the notification requirements of the Law. 

R. L. Morley-Kirk, Crown Advocate.

Advocate C. M. Fogarty for M.

Advocate M. J. Haines for N.

JUDGMENT

THE DEPUTY BAILIFF:

1.        We deal firstly with two preliminary matters.  Firstly we repeat the observations of the Crown that pursuant to Article 3 (1) of the Criminal Justice (Anonymity in Sexual Offences)(Jersey) Law 2002 no publicity may be given relating to the victim in this case that might lead to her identification.  In our view that extends to the naming of the accused in this case and we are glad to note, as has been communicated through counsel, that the media agree with this approach. 

2.        Secondly, for the reasons advanced by counsel for the defence, we direct that the period that must pass before either of you can apply to be taken off the Sexual Offenders Register is one of 2 years from the date of your conviction, namely 1^st July this year. 

3.        The offences for which you are to be sentenced are very serious indeed.  They identify a course of conduct of incest with your sister when, in the case of M, she was between the ages of 5 and 9, and in the case of N, she was between the ages of 7 and 11.  They also identify a course of conduct of indecent assault and procuring acts of gross indecency.  It all started before you were old enough to be criminally responsible but continued after that and the charges reflect these later examples. 

4.        We accept that there was no violence used as such but we also proceed on the basis that an element of coercion was used and that you threatened your sister and warned her not to tell anyone.  You kept a lookout for each other and you knew that what you were doing was wrong. 

5.        We have read your sister's letter to you both as part of her victim impact statement describing the effect of your actions on her and on her life.  The Crown describes that letter as harrowing and we can only agree with that characterisation.  We hope that she can find some peace and escape the effects of your actions in the time to come. 

6.        We have read with care the reports provided to us in this case, particularly the social enquiry reports and the psychological assessments and reports, and we have found much in those reports to be persuasive.  Not all of the contents of those reports to which we have had regard have been deployed or referred to in open court. 

7.        M, you have pleaded guilty and that carries with it a high value by way of mitigation.  You have spared your sister the ordeal of having to give evidence in court and it is perhaps the best evidence of remorse, although we view that remorse as somewhat qualified by the characterisation of it in the various reports.  We have read the references that apply to you, which speak well of you, and we have had regard to the delay, which was not of your making, from the time when you were first arrested to the time when you were charged.  In particular, as we are bound to do we have had particular regard to your youth at the time when you committed these offences.  You were a child yourself. 

8.        N, you too have pleaded guilty and you are entitled to the same amount of credit as your brother because it has the same benefit.  The Court accepts the genuineness of your remorse and, again, we have had regard to the references.  You were led into this initially by your brother and we accept that there was an element of bullying involved within the family relationship.  We have also paid particular regard in your case to the psychological reports and the challenges that you have faced in your life and, again, we have taken into account both delay and your youth, both at the time of your offending and now. 

9.        The Court has found this an extraordinarily difficult matter to consider.  How should the Court approach it?  How do we do justice to reflect the abhorrence that right-thinking people will feel when they hear about the details of your crime and the effect of your crime upon the victim?  How do we balance that against your youth and the difficulties that surrounded the family as a whole when you carried out these inexplicable acts?  How do we balance them with the other mitigating factors to which we have made reference? 

10.      In our view the custodial threshold is passed in both of these cases and also in our view the sentence that we pass must contain a punitive element, an element of punishment to reflect the seriousness.  However, we think it is appropriate in both of your cases to impose a direct alternative to a custodial sentence.  We regard the circumstances of this case as quite extraordinary and exceptional. 

11.      M, you will be subject to a period of probation for 18 months and you will serve 312 hours' community service, which is an equivalent of 2 years in custody. 

12.      N, you will have a Probation Order of the same duration, 18 months, and you will serve 180 hours of community service, the equivalent of 12 months in custody. 

13.      You must obey the directions of the Probation Service and participate fully in all of the treatments that they direct you to undertake and that they offer you, which have been set out in more detail in your respective social enquiry reports. 

Authorities

Criminal Justice (Anonymity in Sexual Offences)(Jersey) Law 2002.

Sex Offenders (Jersey) Law 2010.

Criminal Justice (Community Service Orders)(Jersey) Law 2001.

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

AG v- E, F [2015] JRC 134.

R v H and Others [2011] EWCA Crim 2753.

P v AG [2012] JCA 070.

AG v Aubin [2009] JRC 123.

AG v Cameron [2008] JLR N 44.

AG v A and Six Others [2009] JRC 107.

AG v H [2011] JRC 206.

AG v AV [2009] JRC 035.

AG v Z [2011] JLR 107.

Archbold Criminal Pleading, Evidence and Practice 14^th Edition.

Archbold Criminal Pleading, Evidence and Practice 2015.

Thomas, Principles of Sentencing, 1979 Edition.