Jersey Unreported Judgments

Hearing (Criminal - reasons for sentence and associated orders made

[2016]JRC001

Royal Court

(Samedi)

4 January 2016

Before     :

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

The Attorney General

-v-

T

Advocate E. L. Hollywood, Crown Advocate.

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

JUDGMENT

THE commissioner:

1.        On 8^th December, 2015, the Court sentenced the defendant to a total of 6 years' imprisonment for two counts of indecent assault and we now set out our reasons for the imposition of those sentences and the associated orders made. 

2.        Taking first a summary of the facts, for some four years the defendant's partner looked after the complainant whilst the complainant's mother was at work.  On 4^th May, 2015, when the complainant, who was aged 10, arrived home, her mother noted that she seemed nervous.  The complainant removed her socks and put them in a laundry basket, which her mother thought was strange.  She saw the complainant place something inside her school book which she then put in her bag.  When her mother went into the book bag, she discovered £13 inside the book and asked the complainant who had given her this money.  She started to cry and stated that it was the defendant.  The complainant then said words to the effect of - "Mum, you are going to stop liking me because [the defendant] threatened me that he was going to make a complaint to Social Security because sometimes I stay home alone and said I was going to be without my Mum".  The complainant then disclosed to her mother the indecent assault that forms the basis of Count 2. 

3.        The complainant explained in her ABE interview, that when she had been at the defendant's home, he had told his partner that he had to go to his employer's house to drop off firewood and that he would take the complainant with him to see lambs at the property.  The complainant then described the journey from town to a property that was a building site, describing the black wooden gate erected at the site entrance.  Once inside the property, the defendant locked the gates from the inside.  He then took the complainant through the site to a room at the top of the house.  He removed the complainant's shirt, which she put back on.  He then removed her shoes, which she also put back on.  He then grabbed the complainant by the neck and pulled her up from the floor.  He took down his trousers and underwear.  She described the defendant squeezing her cheeks very hard and forcing her jaw open in order for him to insert his penis into her mouth.  She stated that his penis touched her lips and it went into her mouth a little but did not go beyond her teeth.  She stated that it felt "hard".  The defendant then ejaculated and some semen went on to the complainant's lips, with the rest going on to the floor, which the complainant accidentally stepped on.  The defendant then insisted upon giving the complainant £13.  He told the complainant that if she told her mother what had happened, then she would be taken away from her and they would never see each other again because he would tell Social Security that the complainant was sometimes left alone. 

4.        The complainant stated that she had tried to push the defendant away as he indecently assaulted her by pushing him backwards in the area of his stomach.  She said she did not run away, as the gate was locked and she did not know Jersey very well.  She felt nervous, upset and scared.  Afterwards, the defendant drove the complainant back to town. 

5.        In her ABE interview, the complainant also disclosed that the defendant had indecently assaulted her in the same manner on an earlier occasion, but at his bedsit, when she was eight years old, which formed the basis of Count 1. 

6.        In his interview with the police, the defendant, while admitting sexual activity with the complainant, described her as the sexual aggressor, who showed him pornography on his partner's mobile phone, chasing and putting pressure on him.  His account is in stark contrast to that of the complainant and in the view of the probation officer, is based upon his own fantasy of what he wanted to happen.  The probation officer was also sceptical about his assertions in relation to pornographic material, seeing this as part of the defendant's grooming process towards the complainant.  The defendant has in any event subsequently pleaded guilty to the offences on the basis put forward by the prosecution as summarised above. 

7.        There are no sentencing guidelines for indecent assault because of the very wide range of conduct encompassed by the offence.  As the Superior Number said in Attorney General v Brewster 2001/130 [7.6.2001]: -

"Offences of this nature vary almost infinitely in their seriousness...In recent years society has become ever more aware of the level of child abuse and the serious long term consequences which are so often suffered by those who have been abused.  In our judgment the courts must take note of these factors and pass sentences which reflect them and which reflect the abhorrence which all right thinking members of society have for the corruption of young children."

8.        The Court has always taken a particularly condign view of the introduction of oral sex (see Attorney General v Bouhaire [17.7.90], Attorney General v McGuire [26.9.91] and Attorney General v U [2011] JLR 812). 

9.        Under s.1(1) of the English Sexual Offences Act 2003, rape has been re-defined in this way:-

"Rape

(1)       A person (A) commits an offence if -

(a)       He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)       B does not consent to the penetration, and

(c)       A does not reasonably believe that B consents."

10.      Whilst that statutory change of definition has not occurred in Jersey, the Court considers that assaults of this kind, namely when a penis is forced into a bodily orifice of a vulnerable and clearly unwilling complainant, using force and threats, should be regarded (and would be regarded by right thinking members of society today) as being in the same category of seriousness as rapes involving vaginal penetration.  It seems to this Court that penetration of the mouth constitutes an intensely intimate and degrading act, which can involve a severe degree of emotional and psychological trauma. 

11.      In this case, the Court has the benefit of a victim impact statement from a chartered clinical psychologist, which shows that the complainant really believed that she would be taken away from her mother and that her adoptive parents would not love her.  She felt unsafe when the social worker attended to interview her.  Despite being resilient, he advised that the complainant is likely to experience psychological effects that will require intervention and that she could develop a complex trauma presentation. 

12.      One feature of the report from the psychologist is the ongoing fear that the complainant and her mother have that the defendant will find and kill them on his release from prison.  The mother is particularly fearful of the risks of harm towards her, the complainant and the complainant's sister.  Whilst he accepts that this fear may be disproportionate, he says that the evidence shows that prognosis is negatively impacted if the complainant is at risk of contact with the perpetrator or suffers anxiety at the time of his release into the community. 

13.      In the recent case of Attorney General v Jalam [2015] JRC 169, the defendant pleaded guilty to indecent assault by forced oral sex.  The defendant assaulted his victim, a young woman, by striking her four times before forcing his penis into her mouth and repeatedly forcing her to perform oral sex.  Throughout the ordeal, the defendant threatened and verbally abused the victim.  The prosecution submitted that the offence would have been classed as rape in England and Wales and thus sought to rely on the rape guidelines as set out in R v Milberry [2003] 1 Cr App R 25.  The Court granted the prosecution's conclusions, sentencing the defendant to 4½ years' imprisonment in respect of the indecent assault and although the judgment does not explicitly endorse the use of Milberry, it expressed itself as being satisfied that the prosecution was right in its conclusions. 

14.      In our view the offending in this case should be regarded as being in a similarly serious category for sentencing purposes as rape and in considering the sentence to be imposed, it is helpful to have regard to the sentencing policy of the Court in relation to cases of rape. 

15.      In the case of AG v Da Graca [2005] JRC 161 the Court adopted the guidelines laid down by the English Court of Appeal in R v Billam [1986] 1 WLR 349 and Milberry in cases of rape.  This approach was endorsed by the Jersey Court of Appeal in Da Graca v AG [2006] JCA 038.

16.      In Milberry the English Court of Appeal stated that in a contested case with no mitigation or aggravating factors a starting point of a sentence of 8 years' imprisonment would be appropriate in cases of a single offence of rape by a single offender where the complainant is a child or where the offender abducts the victim and holds her captive.  This starting point should be reviewed against a whole range of mitigating and aggravating factors.  Once these factors had been taken into consideration the sentence should be increased or reduced accordingly to produce the final sentence. 

17.      The defendant's actions in transporting the complainant from his home to a secluded building site where he locked her in the site amounts in our view to abduction and holding the complainant captive.  In her ABE interview the complainant stated that she did not attempt to escape because (a) she knew the defendant had locked the site entrance upon their arrival and (b) owing to her age and relatively short presence in the Island, she was unaware of her surroundings.  The prosecution referred us to the former Deputy Bailiff's comments in AG v Z [2010] JRC 016:-

"We think that there was, at least technically, an abduction, in the strict sense that the victim was led away from her chosen path at knifepoint.  It may not be quite the same as an abduction from a victim's bedroom but it was still an abduction."

The abduction of the complainant in this case was more than just technical. 

18.      At page 424 of Whelan's Third Edition of Aspects of Sentencing the author points out that the "rape sentencing guidance does not use the term 'stating point' in the sense in which the term is employed in sentencing for drugs offences, namely a point from which there can only be downward movement imported by mitigation.'  In Billam it is clear from the starting point there can be upward movement taking into consideration any aggravating features in the case and it is only after that upward movement, if any, that the mitigation is applied for its reductive effect. 

Aggravating features

19.      In the case of Milberry nine factors were identified as aggravating features that add substantially to the starting point.  One is the use of violence over and above the force necessary to commit the rape and in this case the defendant used violence over and above the force necessary to commit the indecent assault by squeezing the complainant's cheeks hard to force her mouth open in order to subject her to the degradation of forced oral sex.  Another is where the offence is planned and here there was also a degree of premeditation in that the defendant took the complainant from his home in town to a secure and secluded building site in St Martin, which he had access to, in order to commit the offence on the last occasion.  It cannot be said that the defendant was simply an opportunistic offender. 

20.      In addition there are the following aggravating factors:-

(i)        This was an appalling breach of trust as the defendant and his partner were responsible for the complainant's care whilst her mother was working. 

(ii)       The defendant ejaculated on the complainant on both occasions;

(iii)      The defendant made threats that he would expose the fact that the complainant was left at home alone on occasions whilst her mother worked.  He told her that she would never see her mother again once she made a complaint. 

(iv)      He gave the complainant money to buy treats at a shop which is tantamount to grooming. 

(v)       The second occasion was more serious than the first because of the additional elements of abduction and entrapment, as well as the aggravating feature of a previous offence against the same complainant. 

(vi)      The defendant has sought to minimise and justify these offences, claiming that the complainant was, in effect, the sexual aggressor. 

21.      The prosecution did not draw our attention to any specific examples of sentences passed in Jersey for rape because none of the cases since Da Graca have been factually analogous.  In any event the Royal Court in Da Graca emphasised 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 features present, it may make little difference whether they are treated as increasing the starting point or the amount added to the starting point."

22.      The prosecution submitted and we agreed that the appropriate starting points in this case were 8½ years for Count 1 and 9½ years for Count 2.  Allowing a full one third discount for the defendant's guilty plea and for general mitigation, the prosecution therefore moved for sentences of 4 years 6 months' imprisonment for Count 1 and 5 years' imprisonment concurrent for Count 2, making a total of 5 years' imprisonment. 

23.      Whilst consecutive sentences would have been appropriate, as these were two distinct offences separated in time by some two years, the application of the totality principle would have resulted in a reduction of the sentence on each count to a point that would not have adequately reflected the seriousness of the offence and we agreed with that approach. 

24.      In terms of mitigation, Advocate Bell explained that his client's main concern was not to be deported, to which we will come in a moment, but in terms of mitigation:-

(i)        The defendant had pleaded guilty and deserved a full one third credit for this.  We agree in that it must be the policy of the Court to encourage defendants to plead guilty by giving a full credit and thus avoiding complainants having to go through the ordeal of giving evidence. 

(ii)       He had written a letter of remorse to the Court and although in a police interview he had painted the complainant as the sexual aggressor, this might be attributable to cognitive dissonance, by which the defendant was struggling to come to terms with actions for which he was deeply ashamed. 

(iii)      Whilst the defendant had a bad record in Portugal up to 1999 (when he moved permanently to Jersey), that was some years ago and there had only been one conviction in Jersey in 2006; none of his previous convictions were for sexual offences. 

(iv)      He had suffered from a physically abusive and deprived childhood which led to him developing difficulties with managing his emotions and interpersonal relationships.  He had been assessed by a clinical psychologist as presenting with significant traits of borderline (emotionally unstable) paranoid avoidant and depressive personality disorder with significant levels of depression, anxiety and post-traumatic stress disorder, for which therapy was recommended. 

(v)       He had a good employment record, working successfully as a gardener.  We were shown a number of references from his employers. 

(vi)      Although his relationship with his partner may have ended, she was still supportive and they would be able to continue to work together as parents for their two-year-old child. 

25.      Advocate Bell cautioned against the Court having regard to the sentencing policy in cases of rape and to ascertaining starting points as per Milberry.  He said it was likely to lead to a sentence that was excessive, although he did not demur from the final total sentence sought by the prosecution of five years, which he said was the highest the Court could impose.  Could it really be said, he asked, that after a contested hearing and assuming no mitigation, that the defendant would be facing a sentence of 9½ years for these two offences?  However, it seems to us that if a five year sentence is appropriate for these offences following a guilty plea and with other mitigation, then a 9½ year sentence after a contested hearing and with no mitigation would indeed be the sentence that the defendant would be facing. 

26.      In the view of the Court, the prosecution had been too generous in the discount it had allowed from the starting points.  Whilst the Court agreed that a full one third should be allowed for the valuable guilty plea, it was only prepared to make a small allowance for the other mitigation put forward on the defendant's behalf.  In a case as serious as this the personal circumstances of the offender have to take second place behind the plain duty of the Court to protect victims of sexual attacks (see Wellman (1999) Crim. L.R. 343 and "L" (1999) Cr. App. R. 117).  Accordingly, the Court imposed a sentence of imprisonment of five years for Count 1 and six years for Count 2 concurrent, making a total of 6 years' imprisonment. 

27.      The guidance offered by Billam and Milberry is currently synthesised by the Sentencing Guidelines Council (page 428 of Whelan's Third Edition of Aspects of Sentencing) and we note that for a single offence of rape by a single offender of a victim under 13, the starting point is shown as 10 (not 8) years' imprisonment, with a sentencing range of between 8 - 13 years.  We found that useful as a cross check by which we could be satisfied that 6 years for these two offences of indecent assault on a child aged 8 and 10, with these aggravating features, whilst rightly severe, was not excessive.  

28.      Furthermore, in our judgement a total of six years for these offences was justified irrespective of the guidelines laid down for rape cases and properly reflected the abhorrence which all right thinking members of society have for such conduct.   

Sex Offenders (Jersey) Law 2010

29.      The Court dealt with this before sentencing the defendant.  Taking first the notification requirements, having taken account of the advice from the probation officer and the clinical psychologist who examined the defendant, we set the minimum period, before which the defendant can apply to have the notification requirements lifted at 10 years from the date of his conviction, namely 10 years from 18^th September, 2015.  This was not opposed by the defendant. 

30.      In terms of restraining orders, an issue arose as to whether those should be limited to female children or extended to both male and female children.  Whilst not opposing the imposition of restraining orders, Advocate Bell submitted that they should be limited to female children as there was no evidence that the defendant posed a risk to male children but we concluded that the order should extend to both male and female children because:-

(i)        Of the defendant's refusal to discuss, and his complete denial of, his attraction to pre-pubescent children, which made it unsafe to discount the risk to male children. 

(ii)       There is research which apparently indicates that sexual offenders who are attracted to young children do not distinguish between genders. 

31.      Accordingly, we made the following restraining orders to apply for a period of six years from the date of the defendant's release on licence pursuant to Article 17 of the Prison (Jersey) Law 1957:-

(i)        That 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, accidentally 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, A, 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. 

32.      The Court also ordered that further to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the complainant shall be the subject of a prohibition from publication of her identity during her lifetime. 

Deportation

33.      The prosecution sought a recommendation that the defendant be deported.  Taking the first part of the test set out in Camacho v AG [2007] JLR 462, the Court had no doubt that the defendant's continued presence in the Island was detrimental for the following reasons:-

(i)        The defendant had committed two serious sexual offences on a child which he had consistently attempted to minimise and justify. 

(ii)       He is assessed as being of a moderate risk of sexual recidivism. 

(iii)      He has three previous convictions for robbery and five for aggravated theft between 1987 and 1999 for which he was sentenced in Portugal to periods in custody ranging from 1½ years to 8 years. 

(iv)      Both the complainant and her mother fear for their safety should the defendant not be deported; indeed, the complainant fears she is at risk of being killed by the defendant. 

34.      Turning to the second part of the test, namely the effect the defendant's deportation would have on the family rights under Article 8 of innocent persons connected with the defendant and of the defendant himself, this was more difficult, because the defendant has been in Jersey on and off since 1982/3 and permanently since 1999 and has a young child here. 

35.      Whilst his partner had written a letter on 8^th July, 2015, which was very supportive of the defendant and had been instrumental in gathering letters from three of his brothers and his sister in Jersey, all in support of him staying in the Island, she had not visited the defendant in prison since 13^th June, 2015.  The defendant clearly recognised that the relationship was over but Advocate Bell indicated that his partner was still supportive, though we had nothing before us to indicate that. 

36.      The Court had very little information about the defendant's immediate and wider family in Jersey and Madeira and the impact of deportation on them.  We had no letter from him on the issue.  In particular the Court had no information about the circumstances of his partner, how deportation would affect her and the child and whether she would return to Madeira with the respondent if he was deported. 

37.      It was disappointing that the Court had been given such little information on what is an important decision with potentially far reaching implications to the defendant and his immediate and wider family.  We therefore adjourned this part of the application so that we could be better informed and in particular asked for:-

(i)        A report from the Probation Department on the issue of deportation. 

(ii)       A statement from the defendant. 

(iii)      A statement from his partner. 

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

Authorities

Attorney General v Brewster 2001/130.

Attorney General v Bouhaire [1990] JLR N 21a.

Attorney General v McGuire [26.9.91].

Attorney General v U [2011] JLR 812.

English Sexual Offences Act 2003.

Attorney General v Jalam [2015] JRC 169.

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

AG v Da Graca [2005] JRC 161.

R v Billam [1986] 1 WLR 349.

Da Graca v AG [2006] JCA 038.

AG v Z [2010] JRC 016.

Whelan on Aspects of Sentencing in the Superior Court of Jersey (Third Edition).

Wellman (1999) Crim. L.R. 343.

"L" (1999) Cr. App. R. 117.

Prison (Jersey) Law 1957.

Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002.

Camacho-v-AG [2007] JLR 462.