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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- K [2016] JRC 141 (16 August 2016)
URL: http://www.bailii.org/je/cases/UR/2016/2016_141.html
Cite as: [2016] JRC 141
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Superior Number Sentencing - indecent assault.
|
Before : |
Sir Michael Birt, Commissioner, and Jurats Nicolle, Crill, Blampied, Grime, Ramsden and Thomas. |
The Attorney General
-v-
K
Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 26th May, 2016, following a guilty plea to the following charges:
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2 counts of: |
Indecent assault (Counts 1 and 5). |
Age: 36.
Plea: Guilty.
Details of Offence:
The defendant is married to the victim's mother and the family lived in a small, one-bedroom apartment. The defendant and the victim's mother slept in the bedroom, in which there was a pedestal sink, and the victim slept in the lounge on the sofa.
On 10th December, 2008, the defendant was convicted of three offences of child cruelty against the victim.
In March 2015 the victim contacted the Police and made a complaint that she had been sexually abused as a child by the defendant.
On the first occasion (Count 1) the defendant knocked on the wall between the bedroom and sitting room. He entered the sitting room where the victim was asleep in bed dressed, in her pyjamas. He pulled the bedcovers off and pulled her by the arm her out of bed and into his bedroom. He then asked her to kneel down. He then took a piece of clothing from out of the chest of drawers and wrapped it around her head over her eyes so she would not be able to see anything. The defendant then tied her to the sink in his bedroom. He pulled her hands behind her back around the pedestal of the sink tied them together with an item of her mother's clothing. The defendant took off his boxer shorts, put his penis in her mouth and thrust it backwards and forwards. The defendant then ejaculated into her mouth. He instructed her not to swallow any of his semen but to spit it out into the sink. The defendant then untied her hands so that she was able to stand up and spit out the semen. She then wiped her mouth.
On the second occasion (Count 5) when the defendant knocked on the wall the victim went into his bedroom, got clothing out of the drawer herself, and gave it to him. He blindfolded her. She then knelt down whilst he tied her to the sink. The second indecent assault followed the same pattern as the first, whereby the defendant put his penis into her mouth and pulled it backwards and forwards. He continued until he ejaculated and then again told the victim not to swallow. On both of these occasions, the defendant untied the victim but told her that she could not take off her blindfold until he had left and gone to the bathroom. After the incidents the defendant would take a shower and the victim would return to her bed.
The victim was 7 years old the first time and 9 years old the second time it happened. She explained that it only happened when her stepfather and her mother had been arguing. Each time the defendant indecently assaulted her the victim cried, but this did not stop the defendant abusing her.
The victim explained that the physical and sexual abuse eventually stopped on the 21st October, 2008, when she was 10 years old. This was because the victim had told her teacher about the last of the assaults that form the basis of the defendant's 2008 cruelty conviction.
Details of Mitigation:
Guilty plea but not co-operative with the police.
Previous Convictions:
Three previous convictions for child cruelty in 2008, the victim of those offences was the same victim as in the present case.
Conclusions:
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Count 1: |
Starting point 12 years' imprisonment. 6 years' imprisonment. |
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Count 5: |
Starting point 14 years' imprisonment. 7 years' imprisonment, consecutive. |
Total: 13 years' imprisonment.
Order sought under the Sex Offenders (Jersey) Law 2010 that a period of 15 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of sentence.
Restrictive Order sought under Article 10 to commence from the date of sentence for a period of 15 years with the following conditions:-
i) That the defendant be prohibited from being alone with any female he knows or believes to be under the age of 16 years
a. He shall be considered to be alone if there is not present an adult over the age of 21 years who is aware of his offending history;
b. The adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling.
ii) That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as possible.
iii) That the defendant is prohibited from having any contact, direct or indirect, with the victim.
Recommendation for deportation sought.
Sentence and Observations of Court:
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Count 1: |
9 years and 4 months' imprisonment. |
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Count 5: |
10 years' imprisonment, concurrent. |
Total: 10 years' imprisonment.
Order made under the Sex Offenders (Jersey) Law 2010 that a period of 15 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction, 27th May, 2016.
Restrictive Order made under Article 10 to commence from the date of sentence for a period of 15 years with the following conditions:-
i) That the defendant be prohibited from being alone with any female he knows or believes to be under the age of 16 years
a. He shall be considered to be alone if there is not present an adult over the age of 21 years who is aware of his offending history;
b. The adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling.
ii) That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as possible.
iii) That the defendant is prohibited from having any contact, direct or indirect, with the victim.
We are also adding that the above restrictions shall not apply to the defendant's three children, who will be named in the Act, contact with whom shall be subject to any restriction put in place by the Court, the Children's Service or any other competent agency.
No recommendation for deportation made.
Her Majesty's Attorney General appeared on behalf of the Crown.
Advocate M. J. Haines for the Defendant.
JUDGMENT
THE commissioner:
1. Now in view of the detailed submissions we have received from the Attorney General and from Advocate Haines on sentencing levels for this type of offence, we shall give the reasons for our decision at a later date. We therefore propose to say very little now.
2. However, the two counts were, on any view, very serious and cruel offences which must have been terrifying for the young victim, who was 7 at the time of the first offence and 9 or 10 at the time of the second.
3. The Court is firmly of the view that the sentence passed must reflect society's condemnation of such behaviour.
4. The sentence is as follows:- on Count 1; 9 years 4 months' imprisonment, on Count 5; 10 years' imprisonment, concurrent, making a total of 10 years' imprisonment.
5. We also order that the defendant will be subject to the notification requirements under the Sexual Offenders (Jersey) Law 2010 for a period of 15 years from the date of conviction on 27th May, 2016.
6. We also make the restraining orders as applied for by the Crown at paragraph 68 of the conclusions for a period of 15 years from the date of sentence:-
(i) That the defendant be prohibited from being alone with any female he knows or believes to be under the age of 16 years
(a) He shall be considered to be alone if there is not present an adult over the age of 21 years who is aware of his offending history;
(b) The adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling.
(ii) That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as possible.
(iii) That the defendant is prohibited from having any contact, direct or indirect, with the victim.
We are also adding that the above restrictions shall not apply to the defendant's three children, who will be named in the Act, contact with whom shall be subject to any restriction put in place by the Court, the Children's Service or any other competent agency.
7. Finally, as to deportation, the Court has decided by a majority of 4/2 not to recommend deportation, given the fact that the defendant has made his home in the Island for some 18 years, with children here, whose Article 8 rights the Court is obliged to have regard to.
8. Finally Advocate Haines it is really the Court's decision, it occurs to us given what has occurred, that you may in due course wish to consider an appeal but we think the time for that should run from the date of issue of the Court's reasons so we will make an order to that effect.
Authorities
Sexual Offenders (Jersey) Law 2010.
Da Graca-v-AG [2006] JLR N8.
AG-v-Godson and Crowley [2013] (2) JLR 1.
Sexual Offences Act 2003.
R-v-Milberry [2003] 1 Cr App R 25.
Attorney General's Reference No 127 of 2004 (David Michael Briggs) [2005] 2 Cr App R (s) 74.
Sentencing Guidelines Council's Definitive Guidelines - Sexual Offences (extract).
Sentencing Guidelines Council's Definitive Guidelines - Totality.
R-v-H (J) [2011] EWCA Crim 2753.