Jersey Unreported Judgments

Superior Number Sentencing - indecent assault.

[2015]JRC253

Royal Court

(Samedi)

8 December 2015

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Fisher, Nicolle, Marett-Crosby, Olsen, Grime and Thomas

The Attorney General

-v-

T

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 18^th September, 2015, following guilty pleas to the following charges:

2 counts of:

Indecent assault (Counts 1 and 2).

Age:  52.

Plea: Guilty.

Details of Offence:

The complainant was looked after by the defendant and his partner on an informal basis whilst the Complainant's mother worked.  This arrangement was in place for a number of years preceding the complaint. 

Count 1 related to an incident which occurred when the complainant was 10 years old.  She had been at the defendant's home when he took her from his bedsit in town to a secluded building site in St Martin.  Once inside the site the defendant locked the site entrance.  The defendant took the complainant to a room at the top of the house and he tried to remove her clothing.  The defendant grabbed the complainant by the neck.  He pulled down his trousers and underwear.  The defendant made threats regarding the complainant being taken into care.  He squeezed her cheeks hard and forced her to open her jaw and he inserted his erect penis.  He ejaculated and some semen went on to her lips. 

When the complainant arrived home her mother found cash hidden in her school bag.  When asked where the money came from the complainant cried and stated it came from the defendant.  She stated that he had made threats to report her mother to the authorities which would result in the complainant being taken away.  The complainant made a complaint to the police on the same day. 

During her Achieving Best Evidence interview the complainant stated that the same offence had occurred on another occasion, when she was 8 years old, at the defendant's bedsit (Count 2). 

The Crown had regard to Milberry in setting out the following aggravating features:-

-¢Violence used over and above the force necessary to commit the indecent assault;

-¢Degree of premeditation in transporting the complainant to a site out of town;

-¢Element of entrapment when the complainant was locked inside the building site;

-¢Appalling breach of trust as the defendant and his partner were responsible for the complainant's care whilst her mother was working; and

-¢Cash payment was tantamount to grooming. 

Details of Mitigation:

Guilty plea.  Remorse.  Defendant was suffering from a range of mental health problems. 

Previous Convictions:

One previous conviction in Jersey in 2006 for public order.  Portuguese records showed a series of previous convictions including robbery and aggravated theft between 1987 and 1999. 

Conclusions:

Count 1:	Starting point 8½ years' imprisonment.  4½ years' imprisonment.
Count 2:	Starting point 9½ years' imprisonment.  5 years' imprisonment, concurrent.

Total: 5 years' imprisonment. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years from 18^th September, 2015, elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction sought. 

Restraining Order sought to commence from date of release for a period of 6 years under Article 10(4) with the following conditions:-

i)       that the defendant is prohibited from being alone with any child he know or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history.

ii)      That in circumstances where the defendant finds himself alone with any children under the age of 16, accidently of inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

iii)      That the above restrictions shall not apply to the defendant's son, contact with whom shall be subject to any restrictions put in place by the Court, Children's Service or any other competent agency.

If the Court is of the view that the restriction should apply only to female children, then the Crown proposes orders in the following terms:-

i)       That the defendant is prohibited from being alone with ay female he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history; and

ii)      That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible.

In addition to the general restraining orders, the Crown seeks an order in the following terms:-

i)       That the defendant is prohibited from having any contact, whether direct or indirect, with the child named in the Indictment.

Recommendation for deportation sought.

Anonymity - Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the complainant shall be subject of a prohibition from publication of her identity during her lifetime.

Sentence and Observations of Court:

The Court agreed that a full one third should be allowed for the valuable guilty plea.  However, the Court was only prepared to make a small allowance for the other mitigation put forward on the basis that the personal circumstances of the offender have to take second place behind the Court's duty to protect complainants of sexual attacks. 

Count 1:	5 years' imprisonment.
Count 2:	6 years' imprisonment, concurrent.

Total: 6 years' imprisonment. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years from 18^th September, 2015, elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction made. 

Restraining Order made to commence from date of release for a period of 6 years under Article 10(4) with the following conditions:-

i)       that the defendant is prohibited from being alone with any child he know or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history.

ii)      That in circumstances where the defendant finds himself alone with any children under the age of 16, accidently of inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

iii)      That the above restrictions shall not apply to the defendant's son, contact with whom shall be subject to any restrictions put in place by the Court, Children's Service or any other competent agency.

iv)      That the defendant is prohibited from having any contact, whether direct or indirect, with the child named in the Indictment.

Taking the issue of anonymity pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the complainant shall be subject of a prohibition from publication of her identity during her lifetime.

Adjourned the issue of deportation for a date to be fixed before as far as possible the same court as currently constituted.

E. L. Hollywood, Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE commissioner:

1.        The Court is going to set out its reasons for the decisions which we are about to announce in a written judgment which will be delivered in due course but our decisions are as follows.  Firstly taking the position under the Sex Offenders (Jersey) Law 2010 the minimum period for the defendant to apply to lift the reporting restrictions will be 10 years from the 18^th September, 2015, which is the date of conviction. 

2.        We are going to impose restraining orders which we will read in a moment.  They are to take effect from 6 years from the date of release of the defendant on licence pursuant to Article 17 of the Prison (Jersey) Law 1957 and the restraining orders will be as follows:-

(i)        The defendant is prohibited from being alone with any child he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history.

(ii)       That in circumstances where the defendant finds himself alone with any children under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible.

(iii)      That the above restrictions shall not apply to the defendant's son, contact with whom shall be subject to any restrictions put in place by the Court, the Children's Service or any other competent agency.

(iv)      That the defendant is prohibited from having any contact, whether direct or indirect, with the child named in the Indictment.

3.        Taking the issue of anonymity pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offences)(Jersey Law 2002 the complainant shall be the subject of a prohibition from publication of her identity during her lifetime.

4.        Turning to the sentences to be imposed, on Count 1 you are sentenced to 5 years' imprisonment.  On Count 2a you are sentenced to 6 years' imprisonment, concurrent.  That makes a total of sentence of imprisonment of 6 years. 

5.        On the issue of deportation we are going to adjourn this for a date to be fixed before, as far as possible, the same Court as presently constituted as, in our view, we do not have enough information upon which to reach a proper conclusion in relation to the second part of the test in Camacho-v-AG [2007] JLR 462, the court being satisfied that the first part of the test is met. 

6.        Subject to input from counsel we suggest that at the next hearing we should have at least the following:-

(i)        A further report from the Probation Department as to the effects of deportation upon the defendant and his family, both immediate and wider;

(ii)       A full statement from the defendant;

(iii)      A full statement from his partner, or former partner; and

(iv)      A report from the Children's Service as to the current position in relation to his child.

And we hope that by this further information we will have a much better view of the family background of the defendant, both here and in Madeira. 

7.        In advance of the hearing we would want and would welcome further skeleton arguments from both the prosecution and the defence assisted with authority. 

Authorities

Sex Offenders (Jersey) Law 2010.

Prison (Jersey) Law 1957.

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

Camacho-v-AG [2007] JLR 462.

Da Graca v AG [2006] JLR N8.

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

AG v Da Graca [2005] JRC 161.

AG v U [2011] JLR 812.

AG v Jalam [2015] JRC 169.

AG v Z [2010] JRC 016.

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

R v Billam [1986] 1 WLR 349.