Jersey Unreported Judgments

Superior Number Sentencing - indecent assault - unlawful sexual intercourse - procuring an act of gross indecency - attempting to procure an act of gross indecency.

[2015]JRC262B

Royal Court

(Samedi)

17 December 2015

Before     :

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

The Attorney General

-v-

J

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 2^nd October, 2015, following guilty pleas to the following charges:

3 counts of:	Indecent assault (Counts 1, 6 and 7).
1 count of:	Unlawful sexual intercourse, contrary to Article 4(1) of the Loi (1895) Modifiant le Droit Criminel (Count 2a).
2 counts of:	Procuring an act of gross indecency (Counts 4 and 5).
1 count of:	Attempting to procure an act of gross indecency (Count 8).

Age:  24.

Plea: Guilty.

Details of Offence:

The defendant had been in a relationship with the victim's mother since 2009.  The victim called the defendant "dad." 

The victim, aged 14, made a complaint following a lesson at school about safe relationships and consent.  During two Achieving Best Evidence interviews the victim stated that she has been subjected to sexual abuse since she was 13 years old. 

The first offence occurred when the victim was aged 13.  The defendant performed oral sex on the victim and digitally penetrated her while she was in bed (Count 1).  On the same occasion the defendant inserted the tip of his penis into the victim's vagina (Count 2a).  He desisted as soon as the victim told him to stop.  The victim also disclosed that the defendant had performed oral sex on her on another occasion prior to her making a complaint (Count 7). 

The defendant would send her messages via SMS or social media arranging for her to meet him at a location in the house or requesting sexual favours.  On one occasion the defendant instructed the victim to meet him in the house bathroom while his friends were in the house and he procured the victim to masturbate him and perform oral sex on him (Count 4).  On a separate occasion the defendant instructed the victim to meet him in the garage and he procured her to use her hands and masturbate him (Count 5) whilst he touched her naked breasts under her clothing (Count 6).  

An analysis of the defendant's mobile telephone following his arrest revealed a text message to the victim days before her disclosure stating: "Hand job give you £10" (Count 8).  This text message was followed by a message on Facebook approximately an hour later stating: "Do it now its seconds ill get the cash now.  Delete convo."

The Crown had regard to the following aggravating features:-

-¢Appalling breach of trust by a man the victim considered to be a father figure;

-¢The abuse took place over a period of 8 months continuing right up until the victim made her disclosure;

-¢The defendant coerced the victim with cash bribes and he offered her cigarettes;

-¢The introduction of oral sex; and

-¢The physical and psychological effects on the victim.

Details of Mitigation:

Guilty plea.  Limited remorse expressed. 

Previous Convictions:

No relevant previous convictions, convictions for driving offences. 

Conclusions:

Count 1:	3 years' imprisonment.
Count 2a:	3 years' imprisonment, concurrent.
Count 4:	3 years' imprisonment, consecutive.
Count 5:	3 years' imprisonment, concurrent to Count 4.
Count 6:	2 years' imprisonment, concurrent to Count 4.
Count 7:	3 years' imprisonment, concurrent to Count 4.
Count 8:	18 months' imprisonment, concurrent to Count 4.

Total: 6 years' imprisonment. 

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

Restraining Order to commence from date of release from prison for a period of 5 years with the following conditions-

i) Not to have any direct or indirect contact, in Any way whatsoever (including, but not limited to, contact through the mediums of e-mail, social networking sites, texting or any other form of electronic communication) with any female under the age of 16 years, other than is inadvertent and/or unavoidable;

ii) The defendant is prohibited from being alone with ay female under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  They will be considered to be alone if there is not a parent, guardian or responsible adult who is over the age of 21 years and who is aware of the defendant's convictions;

iii) Where the defendant finds himself alone with a female under the age of 16 years and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable;

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

In addition to the general restraining orders, the Crown seeks an order in the following terms, that the defendant is prohibited from having any contact, whether direct or indirect, with the child named in the Indictment. 

Sentence and Observations of Court:

Count 1:	3 years' imprisonment.
Count 2a:	3 years' imprisonment, concurrent.
Count 4:	3 years' imprisonment, consecutive.
Count 5:	3 years' imprisonment, concurrent to Count 4.
Count 6:	2 years' imprisonment, concurrent to Count 4.
Count 7:	3 years' imprisonment, concurrent to Count 4.
Count 8:	18 months' imprisonment, concurrent to Count 4.

Total: 6 years' imprisonment. 

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

Restraining Order to commence from today's date for a period of 9 years with the following conditions-

i) Not to have any direct or indirect contact, in any way whatsoever (including, but not limited to, contact through the mediums of e-mail, social networking sites, texting or any other form of electronic communication) with any female under the age of 16 years of age, other than is inadvertent and/or unavoidable;

ii) The defendant is prohibited from being alone with any female under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  You will be considered to be alone if there is not a parent, guardian or responsible adult who is over the age of 21 years and who is aware of the defendant's convictions;

iii) Where the defendant finds himself alone with a female under the age of 16 years and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable;

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

In addition to the general restraining orders, the Crown seeks an order in the following terms, that the defendant is prohibited from having any contact, whether direct or indirect, with the child named in the Indictment. 

 

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

Advocate G. A. H. Baxter for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced today in respect of three counts of indecent assault, one count of unlawful sexual intercourse, two counts of procuring acts of gross indecency and one count of attempting to do so.  All of these offences were committed over an eight month period against the same child aged then between 13 and 14 years.  You gained access to that child because of your relationship with the girl's mother and it is absolutely clear that you were in a position of trust that you breached.  You encouraged her to perform these acts with you by financial and other inducements and, significantly, by using parental authority, controlling when she could go out and when she could not go out.  You have expressed little remorse or empathy for your victim and you have sought to blame her.  You are assessed as presenting a notable risk of reconviction. 

2.        We have read the personal statement of the victim in this case and we readily accept the profound effect that your predatory behaviour has had both on her and on her relationships.  You used her, as the Crown has said, for your sexual gratification.  You played a part in her sexualisation and you shared pornography with her.  In part, you stole her childhood. 

3.        The Crown has identified a number of aggravating features of this case and we agree with that assessment.  We note the mitigation available to you.  You have no relevant previous convictions and you have pleaded guilty and that is significant even though we do not think that you pleaded at the earliest possible opportunity. 

4.        Before passing sentence on you we deal with the matters that arise under the Sexual Offences Law.  By reason of your pleas of guilty you are subject to the notification requirements under the Sexual Offences (Jersey) Law 2010.  The Court agrees with the Crown that the period of 10 years is the appropriate period for which you may apply to be removed from the Register. 

5.        We also impose a restraining order.  We do so for a period of 9 years from today's date in the following terms:-

(i)        Not to have any direct or indirect contact, in any way whatsoever (including, but not limited to, contact through the mediums of e-mail, social networking sites, texting or any other form of electronic communication) with any female under the age of 16 years of age, other than is inadvertent and/or unavoidable;

(ii)       The defendant is prohibited from being alone with any female under the age of 16 years, aside from such contact which is inadvertent or unavoidable.  You will be considered to be alone if there is not a parent, guardian or responsible adult who is over the age of 21 years and who is aware of the defendant's convictions;

(iii)      Where the defendant finds himself alone with a female under the age of 16 years and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable;

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

Moreover for the same period we place the restriction that you are prohibited from having any contact, whether direct or indirect, with the child named in the indictment.

6.        We turn now to what we believe to be the appropriate sentence having noted all of the matters to which I have referred.  Going through the list of counts we believe that, to a very great extent, the Crown has correctly identified the gravamen of these offences in these circumstances and we do not propose to depart from the Crown's conclusions.  Specifically on Count 1; 3 years' imprisonment, Count 2a; 3 years' imprisonment, concurrent to Count 1, Count 4; we were minded that this should in fact attract a sentence of 3½ years' imprisonment but we are remaining with the conclusions of the Crown in the light of the totality principle, accordingly 3 years' imprisonment, consecutive, Count 5; 3 years' imprisonment, concurrent to Count 4, Count 6; 2 years' imprisonment, concurrent to Count 4, Count 7; 3 years' imprisonment, concurrent to Count 4, Count 8; 18 months' imprisonment, concurrent to Count 4, making a total of 6 years' imprisonment. 

7.        On the matter of deportation, the Court is unanimously of the view that the first limb of the Camacho v AG [2007] JLR 462 test is passed but equally unanimous in the view that the second limb is not.  Accordingly we do not recommend your deportation at the end of your sentence. 

Authorities

Sexual Offences (Jersey) Law 2010.

Camacho v AG [2007] JLR 462.

AG v U [2011] JLR 812.

AG v Z [2011] JLR 107.

Brewster v AG 2001/130.

AG v DS [2009] JRC 213.

AG v G [2009] JRC 148.