Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault - procuring an act of gross indecency - unlawful sexual intercourse - sexual grooming of a child - improper use of public telecommunication system.

[2016]JRC142

Royal Court

(Samedi)

19 August 2016

Before     :

Sir Michael Birt, Commissioner, and Jurats Crill and Ramsden

The Attorney General

-v-

H

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

First Indictment

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

Second Indictment

1 count of:	Improper use of public telecommunication system, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Count 1).
1 count of:	Meeting a child following sexual grooming, contrary to Article 2(1)(a)(ii) of the Sexual Offences (Jersey) Law 2007 (Count 2).

Age:  19 but aged between 17 and 18 at time of offending.

Plea: Guilty.

Details of Offence:

First Indictment

The defendant met the first victim in January 2015 when he was aged 17 and she was aged 13.  They started a relationship in February 2015.  They would meet in People's Park and walk to the top of the park and sit on a bench, whilst sitting on the bench they would mutually touch and rub each other's genitals over their clothing (Counts 1 and 2). 

The defendant asked the first victim if she would engage in other types of sexual activity with him.  She refused at first but then agreed because it was what people in relationships did.  The further sexual activity initially took place in the defendant's car.  It started with mutual masturbation and progressed to mutual oral sex (Counts 3 and 4).  Finally they engaged in full vaginal sexual intercourse (Count 5).  

The defendant also took the first victim back to his house.   They had full vaginal sex in the defendant's bedroom (Count 6) and in the games room downstairs in the house (Count 7). 

The first victim then ended the relationship by telling the defendant that she needed space. 

The first victim's mother contacted the Police in September 2015 to speak about her daughter who had told her that she had been having a sexual relationship with a 'Matthew' who was aged 18. 

Second Indictment

The defendant met the second victim in June 2015 when he was 18 and she was aged 13.  The defendant and the second victim formed a relationship and started communicating on a daily basis via Facebook.  In July 2015 the police were contacted by the second victim's foster mother who was concerned about sexually explicit messages and photographs which had been sent to the second victim by the defendant. 

The second victim's Facebook account was examined and five images of the defendant's erect penis and one image of his penis ejaculating into a condom were found (Count 1).  Also according to the Facebook message history, the defendant had met the second victim on at least one occasion at which time the second victim had performed a sexual act on him (masturbation) in exchange for cigarettes and alcohol (Count 2). 

Details of Mitigation:

Guilty pleas; cooperative with police and remorseful. 

Previous Convictions:

None. 

Conclusions:

First Indictment

Count 1:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 3:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 4:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 5:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 6:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 7:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.

Second Indictment

Count 1:	90 hours' Community Service Order, equivalent to 3 months' youth detention, together with a Probation Order of 18 months, concurrent to the First Indictment.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent to the First Indictment.

Total: 240 hours' Community Service Order, equivalent to 18 months' youth detention, and a Probation Order for 18 months. 

Order sought under the Sex Offenders (Jersey) Law 2010 that a period of 3 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. 

Restraining Orders sought under Article 10(4) to commence from the date of sentence for a period of 3 years with the following conditions:-

i)              That the defendant not have any direct or indirect 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;

ii)             Produce to police officer forthwith on request for examination, at any time any computer or device which may access the Internet, or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence;

iii)            Be prohibited from owning or having in his possession or having access to any device capable of accessing the Internet unless

a.     It has capacity to retain and display the history of internet use and

b.     Ensures that such history is not deleted

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

v)             Where he 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.

That the above restrictions shall not apply to the defendant's 12 year old sister. 

Costs sought in the sum of £1,000.

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victims shall be the subject of a prohibition from publication of their identity during their lifetimes. 

Sentence and Observations of Court:

First Indictment

Count 1:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 3:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 4:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 5:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 6:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.
Count 7:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent.

Second Indictment

Count 1:	90 hours' Community Service Order, equivalent to 3 months' youth detention, together with a Probation Order of 18 months, concurrent to the First Indictment.
Count 2:	240 hours' Community Service Order, equivalent to 18 months' youth detention, together with a Probation Order of 18 months, concurrent to the First Indictment.

Total: 240 hours' Community Service Order, equivalent to 18 months' youth detention, and a Probation Order for 18 months. 

Order made under the Sex Offenders (Jersey) Law 2010 that a period of 2 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. 

Restraining Orders made under Article 10(4) to commence from the date of conviction for a period of 2 years with the following conditions:-

vi)            That the defendant not have any direct or indirect 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;

vii)           Produce to police officer forthwith on request for examination, at any time any computer or device which may access the Internet, or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence;

viii)          Be prohibited from owning or having in his possession or having access to any device capable of accessing the Internet unless

a.     It has capacity to retain and display the history of internet use and

b.     Ensures that such history is not deleted

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

x)             Where he 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.

That the above restrictions shall not apply to the defendant's 12 year old sister. 

No costs order made. 

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victims shall be the subject of a prohibition from publication of their identity during their lifetimes. 

Her Majesty's Attorney General appeared for the Crown.

Advocate D. J. Benest for the Defendant.

JUDGMENT

THE commissioner:

1.        You met the victim in the first indictment when you were 17 and, as you knew, she was 13.  What began as a friendship developed into a sexual relationship with full sexual intercourse and oral sex taking place on a number of occasions.  That relationship ended after a few months and shortly afterwards you started communicating with a second 13 year old girl and you groomed her by sending highly suggestive messages over facebook and subsequently you met her once for sexual activity. 

2.        Now the Crown does not dispute that all the activities in this case were fully consensual by all the parties involved but this Court has repeatedly said that the law is there to protect young girls and it is the responsibility of the man to obey the law.  You knew what the law was, it is quite clear that you knew that you were not allowed to have sexual intercourse or otherwise have sexual relations with a girl of that age and had you been older there would have been no alternative but to prison.  But you were only 17 at the time of the first indictment and just 18 at the time of the second.  Furthermore the evidence from the reports before us is that your emotional functioning is that of a 14 year old rather than a 17 or 18 year old and you have been receiving treatment from CAMS for your own mental health issues. 

3.        We have read the excellent references which have been provided to us and it is clear that you have much potential.  Furthermore, there is no suggestion in the papers before us that you have any paedophile tendencies in the sense of being attracted to pre-pubescent females.  Furthermore, Article 4 of the Criminal Justice (Young Offenders)(Jersey) Law 1994 applies and we may only impose a custodial sentence if satisfied that there is no alternative. 

4.        The Crown has concluded in this case that there is an alternative of community service and probation and we accept that conclusion.  So we are going to sentence you as the Attorney General has moved. 

5.        On the First Indictment on each of the counts you are sentenced to 240 hours' Community Service Order, which is the equivalent of 18 months' youth detention, and a Probation Order of 18 months.  On the Second Indictment, Count 1; 90 hours' Community Service Order plus a Probation Order of 18 months and on Count 2; 240 hours' Community Service Order and a Probation Order of 18 months, all of those to be concurrent, making a total of 240 hours' Community Service Order and an 18 month Probation Order. 

6.        Now let me make this absolutely clear to you.  If you do not do the community service willingly, turn up on time and do exactly what you are told, then you will be brought back here and at that stage it is very likely that you will have to go to prison, do you understand?  The same is true of the Probation Order.  You will be told that you have got to attend meetings and possibly undertake courses.  You must do all that properly, willingly, and comply with all the directions they give you otherwise, again, you can be brought back here and, of course, if you reoffend then you will be brought back in any event; so we hope very much that you will take advantage of the opportunities that you have been given. 

7.        As to the notification period and the restraint orders, we are going to make the restraint orders as requested by the Crown in those terms but for the reasons put forward by your advocate, we are going to limit the period to 2 years from the date of conviction before you can apply to set aside the registration and the restraint orders expire. 

8.        As to costs we would have made an order for costs if it was not that you were applying to go to college but we hope very much that college does accept you.  We understand it is going to be subject to a meeting but, in so far as this Courts views are concerned, we think it would be a pity if what has happened were to prevent you going to college with a view to you eventually fulfilling your full potential, so we hope the college will accept you.  In those circumstances we think it would be wrong to saddle you with a bill for £1,000, so we are not going to.  But, nevertheless, you must realise that you have been quite lucky.  What you did was wrong and we hope very much that you have learnt from the whole experience and we do not see you again before the courts. 

Authorities

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Cameron [2008] JLR Note 44.

AG-v-Kittleson [2011] JLR Note 8.

AG-v-Dickinson [2005] JRC 135.

AG-v-Duckworth [2009] JRC 058.

AG-v-DS [2009] JRC 213.

AG-v-Sweet [2010] JRC 079.

Whelan on Aspects of Sentencing in the Superior Court of Jersey.