Jersey Unreported Judgments

Superior Number Sentencing - reasons relating to sentence.

[2016]JRC109A

Royal Court

(Samedi)

24 June 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Marett-Crosby, Olsen, Ramsden, Sparrow and Thomas

The Attorney General

-v-

F

S. C. Thomas, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE Commissioner:

1.        On 13^th June, 2016, the Superior Number of the Royal Court sentenced the defendant to a total of 5 years and 4 months' imprisonment, following his conviction by jury trial of four counts of indecent assault, (AG-v-F [2016] JRC 105), which occurred between 1996 and 2001 upon children in the home he was sharing with their mother. 

2.        There are two victims.  The first was aged between 3 and 7 years when the defendant would come into her room at bedtime and digitally penetrate her.  The prosecution's case was that this was a course of conduct which occurred regularly over the period from 1996 - 2001 involving digital penetration with one finger (Counts 1 and 2) and progressing to the use of two fingers on one occasion (Count 3). 

3.        The victim told the jury that this conduct became normal practice and she would feel neglected if it didn't happen at bedtime.  The defendant told her that this was their secret and so she did not tell anyone.  In the prosecution's submission, the defendant's abuse gave rise to incredibly mixed and confused feelings in the victim.  She explained to the jury that she loved the defendant, otherwise he would not have been able to do what he did to her. 

4.        The second victim, an older half-sister, was aged between 13 and 14 when on one occasion the defendant came into her room at night.  This occurred sometime between 1999 and 2001 (Count 11).  He started kissing her lightly on the cheek, moving down to her neck.  His chest was on top of hers, which she described as "heavy" and "restricting".  The defendant then moved the bed clothes from her top half and cupped her left leg behind her knee.  At this point the mother came into the room.  The defendant reacted by going on to the offensive verbally with the mother. 

5.        This incident was reported to the police relatively soon thereafter, in 2002, when the second victim gave an ABE interview and the defendant was also interviewed.  Following a police investigation, a decision was made not to prosecute the defendant, and he was informed of that decision.  The police did not interview any of the other children, thus, in the view of the first victim, missing an opportunity for the abuse suffered by her from coming to light at that stage. 

6.        As it was, the first victim first disclosed the abuse she alleged she had suffered to her mother in 2008 (long after the mother and the defendant had separated and when she and the children were living in the UK), but it was not until 2012 that the first victim felt able to give an ABE interview to the police in England. 

7.        The defendant was interviewed in April 2013.  He dismissed the allegations of the first victim as rubbish.  Accepting that he went into the second victim's room on this one occasion for entirely innocent reasons, he denied any sexual assault.  

8.        The defendant was not brought before the Magistrate's Court until 22^nd July, 2015, over 2 years later and he maintained these denials.  The matter came before the jury on 18^th April, 2016, and before whom the two victims and the mother had to give evidence and be subjected to cross-examination.  It was clear that all three witnesses found the experience very intrusive and distressing. 

9.        The defendant did not give evidence.  The defence put forward on his behalf was not that the two victims had colluded with each other to give false evidence, but that their mother was a greedy and vengeful person, and had somehow put the idea into her children's minds that they had been abused.  

10.      There were 12 counts in total before the jury, the defendant being acquitted in respect of 8 of them and convicted in respect of 4, as set out above. 

11.      The defendant has continued to maintain his innocence and there is no question, therefore, of remorse on his part and, partly because of this, he was assessed as posing a raised risk of sexual re-conviction.  His profile appears within the moderate risk band. 

12.      As Crown Advocate Thomas pointed out, it has long been recognised that offences of this kind are not readily susceptible to a guidance approach (see Brewster v The Attorney General 2001/130 and Whelan on Aspects of Sentencing in the Superior Court of Jersey (third edition) of at pages 447 - 449). 

13.      In the very recent case of J v AG [2016] JCA 090, the Court of Appeal reiterated a particular thrust of the Court of Appeal decision in Harrison v AG [2004] JLR 111 that:-

"Whilst not seeking to dictate the procedure to be followed by the Royal Court, it was desirable for the Royal Court to consider the use of a 2 stage process in all cases, identifying starting points and providing clear reasons for imposing the sentences which were imposed.  Procedural fairness in a sentencing context required the inclusion of a sufficient explanation of the basic reasons which led the Court to impose the final sentence, taking into account all the circumstances of the case (paragraph 23)"

14.      The Court of Appeal also said this at paragraph 37:-

"37     Our conclusion that the sentence was manifestly excessive is based upon the authorities which were put before us on this appeal, as well as before the Royal Court at the sentencing hearing.  We recognise that 'every case needs to be decided on its own facts and that comparisons with other sentencing decisions need to be treated with caution' (see X v Attorney General [2014] (2) JLR 384 at 85, per Sir Richard Collas, Bailiff of Guernsey).  However, it is also important that there should be reasonable consistency in sentencing in the interests of justice and to maintain public confidence."

15.      In terms of consistency, Crown Advocate Thomas referred us to a number of cases in which, without exception, no reference to a starting point had been made:-

(i)        AG v Noel [2003] JRC 027.

The victim was 7 to 8 years of age.  The defendant was a mature adult at the time of commission of the offences.  He entered guilty pleas to two counts of indecent assault.  The offending behaviour consisted of digital penetration and oral sex on the victim.  On one occasion the defendant rubbed his penis against the victim's vagina.  On another he masturbated and ejaculated in front of the victim.  He had convictions for indecent exposure.  He was given considerable credit for his guilty plea at an early stage of the proceedings.  It was acknowledged that the prosecution would have been unlikely to succeed if the matter had gone to trial.  He was sentenced to 3 years' imprisonment on each count, to be served concurrently, which would seem indicate a possible starting point of least 4 years and 6 months.  Whelan suggests that this sentence appears on the low side. 

(ii)       AG v Freeman [2003] JRC 028.

This case involved guilty pleas to two counts of indecent assault and one of procuring an act of gross indecency.  The victim was 13 years of age and the defendant was the cohabitee of her mother.  Her mental age was very much lower than her physical age.  The defendant admitted abusing the victim on up to fifty separate occasions by playing with her private areas, including her bottom, between her legs and her breasts.  He also admitted that he had showed the victim how to masturbate him, which then happened on at least six occasions.  A specific count covered an incident when the defendant had touched the victim's vagina and had been caught in the act of oral sex on the victim.  The defendant made full admissions to the police from the very outset of the investigation.  The abuse had not involved any threats made to the victim and the evidence before the court suggested that the victim was 'relatively unaffected' by what had taken place.  The sentence imposed was 3 years' imprisonment, concurrent on each of the three counts.  This would again seem to indicate a possible starting point of at least 4 years and 6 months.  

(iii)      AG v BR [2006] JRC 155.

The 72 year old defendant pleaded guilty to six counts of indecent assault upon his granddaughter, aged between 6 and 7 years at the time of the offending.  The victim was especially vulnerable having been born with cerebral palsy.  The defendant would look after his granddaughter after school and whilst alone with her would touch her naked vagina by placing his finger at the entrance to her vagina.  Despite initial denials on arrest, he later admitted to this on at least six occasions over a 14 month period.  He denied digital penetration.  The sentence imposed was three and a half years' imprisonment, concurrent on each count.  This would seem to indicate a possible starting point of at least 5 years and 3 months. 

(iv)      AG v L [2007] JRC 029.

The 82 year old defendant pleaded guilty to abusing his daughter and his granddaughter when each was between the ages of 7 and 14 years.  One count of indecent assault in respect of each victim covered a continuing course of abuse against each child over the course of several years and involved regular touching of the genitalia under clothing.  Although digital penetration was alleged the defendant denied it and this issue was not resolved by the sentencing court.  The defendant pleaded guilty to additional counts in respect of each victim including forcing them to perform oral sex upon him.  The total sentence imposed was 30 months' imprisonment.  It is clear from the judgment that the fact that the defendant was of advanced years and might die in prison weighed heavily in the Court's decision to treat him relatively leniently. 

(v)       AG v Foster [2007] JRC 201.

The 51 year old defendant was the boyfriend of the victim's mother.  The abuse started when she was 7 years old.  The defendant pleaded guilty to two counts alleging regular indecent behaviour spanning a period of 3 years.  The abuse took place whilst the victim's mother was at work and her sister asleep.  In relation to the indecent assault count, the defendant digitally penetrated the victim twice a week.  He received 4½ years' imprisonment on this count, which would seem to indicate a possible starting point of at least 6 years and 9 months. 

(vi)      AG v G [2009] JRC 148.

The defendant pleaded guilty to sexually abusing his 14 year old daughter and her friend over a two month period in the family home.  The offending represented by the two counts of indecent assault concerning the daughter involved the defendant performing oral sex upon her, digitally penetrating her vagina and simulating sexual intercourse by rubbing his penis in her vaginal area.  On two further occasions he procured his daughter to masturbate him.  The indecent assault involving the friend occurred during a sleepover when the victim was 15 years of age.  She was asleep when the defendant approached her.  He kissed her on the lips and touched her breast over clothing.  He rubbed her legs and touched her stomach.  The indecent assaults on the daughter attracted a sentence of 4 years' imprisonment (indicating a possible starting point of at least 6 years), whilst a consecutive sentence of 6 months' imprisonment was imposed in respect of the indecent assault on the friend.  A count of procuring an act of gross indecency in respect of the daughter attracted a concurrent sentence of 3½ years, making a total term of 4½ years' imprisonment.  

(vii)     AG v Donnelly [2009] JRC 170.

The 69 year old defendant was found guilty of three offences of indecent assault on a female child aged between 12 and 13 years, and for ten offences of indecent assault on a different female child variously aged between 9 and 14 years at the relevant times.  The offending took the form of touching and digital penetration of the vagina.  On one occasion he inserted an object into her vagina.  The offending took place in breach of trust.  Concurrent terms of imprisonment of 6 years were imposed (which on a not guilty plea and with limited mitigation would seem to indicate a starting point of a little over that figure) and made concurrent with a 15 year sentence for rape arising out of the same circumstances. 

(viii)    AG v X [2010] JRC 111.

The 62 year old defendant was convicted of having indecently assaulted one girl who was aged between 8 and 14 years and another who was aged between 9 and 15 years.  In one case the offences took place over a number of years between 1975 and 1982.  In the other the offences took place over a number of years between 1980 and 1987.  In both cases the offending took the form of touching and digital penetration.  Concurrent terms of 4 years' imprisonment were imposed, but made consecutive to a term of 8 years' imprisonment for an offence of rape.  In terms of the sentence for the indecent assaults, taking into account the not guilty plea and with the Court finding no mitigation available, it would seem to indicate a starting point of around 4 years' imprisonment, although it is not known the extent to which the totality principle might have reduced the sentence sought.  

16.      Trying to assess the starting point in these cases is difficult, in particular where there has been a guilty plea, as there is no indication from the reports as to whether a full allowance of one-third had been given in each case and there is no indication as to what might have been allowed for other mitigation.  It is also uncertain the extent to which the totality principle might have been at play.  The facts of each case are, of course, different, and many have features of sexual abuse that are not present in the case before us.  Perhaps not surprisingly, this exercise shows a wide band of potential starting points (which would have to be rounded up), ranging from at least 4 years and 6 months to at least 6 years and 9 months' imprisonment for indecent assaults involving digital penetration.  The finishing points for the guilty pleas range from 3 years to 4 years 6 months.

17.      In J v AG, the defendant was sentenced by the Royal Court to 3 years' imprisonment following a guilty plea to indecently assaulting a girl of between 13 and 14 years, assaults which involved the licking and digital penetration of her vagina over a period of some 8 months, although it is not clear from the judgement as to the frequency of these assaults during this period.  The defendant was 23 to 24 at the time of the offending and in a relationship with the victim's mother and therefore, as in so many of these cases, in a position of trust.  The guilty plea had been accepted by the prosecution on the basis that the defendant did not sexualise the victim, who had a history of sexualised behaviour resulting in trouble with family and the police, and she had always appeared to be a willing participant.  The Royal Court had not set out a starting point, but a sentence of 3 years would indicate a starting point of at least 4 years and 6 months, and probably some 5 years before any mitigation. 

18.      The Court of Appeal found that the appropriate starting point for this offending (which involved oral sex as well as digital penetration) was 3 years, a considerable reduction, describing the offending in this way:-

"These two assaults were each of material depravity.  They were invasive and deeply offensive and can only be viewed as a serious intrusion of the person of a young female short of sexual penetration."

19.      Allowing a full one-third for the guilty plea and a further allowance for general mitigation, the Court of Appeal reduced the sentence to 21 months' imprisonment. 

20.      The prosecution set out what it said were the aggravating features in the case before us:-

(i)        The age of the victims, in particular the first victim.

(ii)       The defendant being in a position of trust.

(iii)      The duration of the abuse in relation to the first victim.

(iv)      The procuring of the first victim's silence by threats.

(v)       The profound impact upon the victims as shown by their personal statements.

(vi)      The lack of any remorse on the part of the defendant.

21.      The Crown sought a total sentence of 6½ years' imprisonment in relation to the first victim and 6 months' imprisonment, consecutive, in relation to the second victim, making a total of 7 years.  Whilst the Crown had not set out its starting points, on discussion with Crown Advocate Thomas it would seem that in relation to the first victim, the Crown had taken a starting point of 7 years for the most serious of the three counts involving her (Count 3) reduced by half a year for mitigation.  

22.      Whilst not in any way wishing to detract from the seriousness of these offences, it is right to point out that in their personal statements, the victims set out all of the conduct they had alleged against the defendant, for much of which he had been acquitted.  Their statements also contained other allegations which had not been verified in any way and to which the defendant had not been able to respond.  It is also fair to note that the psychological impact of these offences upon them had not been independently assessed by a psychologist.  Crown Advocate Thomas agreed, therefore, that in the interests of fairness, we should treat those statements with respect, but also with caution, because a defendant can only be sentenced for the crimes of which he has been convicted and for the impact of those crimes on the victims which is properly attributable to those crimes. 

23.      In terms of mitigation, the defendant, whilst having a historic record (not involving sexual offences), was to be treated as a man of good character and it is clear from the many references provided that he is highly regarded by many individuals.  He has provided some 9 years of voluntary active service on the lifeboat.  

24.      Advocate Preston informed us that the delay of over 2 years in prosecuting the case following the defendant's interview had placed immense pressure on him and had been very harmful in terms of the psychological impact.  Crown Advocate Thomas had informed us that this delay was caused in part by the prosecution first seeking and then considering a report from a psychologist on the reliability of the first victim's memories of the abuse she was alleging, but as Advocate Preston pointed out, that expert's report was received on 28^th June, 2014, over a year after the defendant's interview.  He wasn't brought before the Magistrate until another year had elapsed.  The existence of the report was not disclosed to the defence until before the plea and directions hearing in October 2015, resulting in the defence understandably wishing to obtain its own expert's report, giving rise to yet further delays, for which the defendant could not be blamed.  We agreed with Advocate Preston that this case had not been "progressed expeditiously" as submitted by Crown Advocate Thomas. 

25.      We also agreed with Advocate Preston that the defendant telling the first victim that this was "their little secret" did not amount to a threat in any real sense - it was more akin to manipulation. 

26.      The thrust of Advocate Preston's submission was that the sentence sought by the prosecution in relation to the first victim, with a starting point of 7 years, was too high and we agreed with that assessment.  He submitted that the appropriate total sentence for Counts 1 to 3 would be 4 years 6 months. 

27.      The facts of this case can be distinguished from that in J v AG in these ways:-

(i)        The age of the victim - here the first victim was aged between 3 - 7 years which makes this a particularly serious case. 

(ii)       The duration and frequency of the assaults on the first victim. 

(iii)      The age of the defendant who was between 30 and 37 at the time of the assaults. 

(iv)      The absence of the specific basis upon which the plea of guilty by the defendant in J v AG had been accepted (paragraph 17 above). 

28.      A starting point of 3 years as per J v AG was in our view too low, and at the same time, 7 years was too high.  Assessing a starting point in cases in which the facts differ so markedly is very difficult, but we had been encouraged by the Court of Appeal to do so and in our assessment, the appropriate starting point in this case for count 3, the most serious offence, taking into account the course of conduct, but before applying any mitigation, was 5½ years. 

29.      In terms of mitigation, we agreed with the observation in AG v T [2016] JRC 001, that in serious cases of indecent assault such as this, any mitigation through personal circumstances (all of which we took into account) had to take second place behind the duty to protect victims.  We resolved therefore only to allow half a year for mitigation, including the delay in prosecuting the case, which in our view was regrettable, resulting in a sentence of 5 years for Count 3.  For Counts 1 and 2 the starting point was 5 years, reduced to 4½ years after mitigation, to be served concurrently with each other and with Count 3. 

30.      With respect to the second victim, we agreed with the prosecution that the sentence should be consecutive in that it represented a progression of the defendant's offending in the sense of moving on the abuse of a second step-daughter.  There was an unusual feature in this case, however, in that the defendant had been interviewed in relation to this allegation in 2002 and formally told he would not be prosecuted, and whilst the authorities at that time were not aware of the full nature of the allegations subsequently made by the second victim against the defendant, for which, apart from this one incident, he has now been acquitted, we felt it right to reduce the sentence to 4 months' imprisonment and this for an indecent assault which must fall at the lower end of the scale for such offences.  He can only be sentenced for what he actually did, and not for what it is thought he might have done if he had not been interrupted by the mother. 

31.      In total, therefore, the defendant was sentenced to 5 years and 4 months' imprisonment. 

32.      Prior to sentencing the defendant, the Court had dealt with the Sex Offender (Jersey) Law 2010 and specifically with the minimum period during which the defendant can apply to be taken off the register and the restraining orders sought by the prosecution.  In the light of the sentences that the Court had resolved to pass, the facts of this case, the assessments of the Probation Department contained within the social inquiry report and the requirements of Articles 5 and 10 of the Law, we set the minimum period under Article 5(4) at 10 years from the date of sentence and we made the restraining orders sought by the Crown for a period of 10 years, again from the date of sentence.  

Authorities

AG-v-F [2016] JRC 105.

Brewster v AG 2001/130.

Whelan on Aspects of Sentencing in the Superior Court of Jersey (third edition).

J v AG [2016] JCA 090.

Harrison v AG [2004] JLR 111.

AG v Noel [2003] JRC 027.

AG v Freeman [2003] JRC 028.

AG v BR [2006] JRC 155.

AG v L [2007] JRC 029.

AG v Foster [2007] JRC 201.

AG v G [2009] JRC 148.

AG v Donnelly [2009] JRC 170.

AG v X [2010] JRC 111.

AG v T [2016] JRC 001.

Sex Offender (Jersey) Law 2010.