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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Pereira [2016] JRC 218B (24 November 2016)
URL: http://www.bailii.org/je/cases/UR/2016/2016_218B.html
Cite as: [2016] JRC 218B
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Superior Number Sentencing - indecent assault.
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Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Fisher, Nicolle, Olsen, Sparrow, Thomas and Ronge. |
The Attorney General
-v-
Luis Virgilo Pereira
Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial on 6th October, 2016, on the following charges:
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8 counts of: |
Indecent assault (Counts 1, 2, 3, 4, 5, 6, 7 and 8). |
Age: 59.
Plea: Not guilty.
Details of Offence:
The defendant and his wife were close friends of the complainant's parents. From an early age the complainant would stay at the defendant's flat when her parents were at work in the evenings. On numerous occasions when the defendant was alone with the complainant he would lay next to her as she was asleep on his bed, place his hands under her clothing and squeeze her breasts. He would then rub her vaginal area, again under her clothing. The complainant would wake up as the defendant was assaulting her. The offending in this manner began when the complainant was aged 8 and continued until before her tenth birthday.
The eight counts comprised four pairs of sample counts, each pair of counts alleged touching of the breast and vaginal area, representing continuous offending over a two year period.
The offending came to an end when the complainant wrote a note to her mother describing what the defendant had been doing to her. Having written that note the complainant was not left alone with the defendant again, although the families remained close and the matter was not reported to the police. Two years later, following her mother's untimely death, the complainant disclosed the abuse at school and made a formal complaint to the police.
A psychological report was before the Court which concluded that the complainant was at risk of on-going post-traumatic stress effects, generalised anxiety and emotional distress which may require psychological intervention in the future.
Details of Mitigation:
The Crown:
The defendant had a number of minor previous convictions and was treated effectively as a man of good character.
The Defence:
The defendant was suffering with a number of health problems, principally relating to his mobility. Consequently a custodial sentence would be more challenging for him.
Previous Convictions:
No relevant previous convictions.
Conclusions:
The Crown's conclusions were put on the basis of the appropriate sentence for the individual offences with an uplift to the last count of vaginal touching (Count 7) to reflect the gravity of repeat offending over a period of years.
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Count 1: |
5 years' imprisonment. |
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Count 2: |
4 years' imprisonment, concurrent. |
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Count 3: |
5 years' imprisonment, concurrent. |
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Count 4: |
4 years' imprisonment, concurrent. |
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Count 5: |
5 years' imprisonment, concurrent. |
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Count 6: |
4 years' imprisonment, concurrent. |
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Count 7: |
7 years' imprisonment, concurrent. |
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Count 8: |
4 years' imprisonment, concurrent. |
Total: 7 years' imprisonment.
Order sought 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 the date of conviction, namely 6th October, 2016.
Restraining Order sought to commence from date of sentence for a period of 10 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.
No recommendation for deportation sought.
Sentence and Observations of Court:
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Count 1: |
3½ years' imprisonment. |
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Count 2: |
3 years' imprisonment, concurrent. |
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Count 3: |
3½ years' imprisonment, concurrent. |
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Count 4: |
3 years' imprisonment, concurrent. |
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Count 5: |
3½ years' imprisonment, concurrent. |
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Count 6: |
3 years' imprisonment, concurrent. |
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Count 7: |
4 years' imprisonment, concurrent. |
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Count 8: |
3 years' imprisonment, concurrent. |
Total: 4 years' imprisonment.
Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 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, namely 6th October, 2016.
Restraining Order made to commence from date of sentence for a period of 10 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.
The Court of Appeal had given its judgment in K v AG; AG v F concerning the extent to which a sentencing court in Jersey should have regard to the Sentencing Council Definitive Guideline for Sexual Offences as it applies in England and Wales earlier in the day when the defendant appeared for sentence. As such that decision was reflected in the sentencing remarks, but not in the Crown's conclusions which were necessarily drafted beforehand. The inclusion in the Crown's bundle of an advice from leading counsel as to the approach that would be taken to sentence in England and Wales on the basis of the guidelines was, as a matter of principle, considered unhelpful.
A non-custodial sentence in a case of this nature could only be justified in exceptional circumstances and there were no such circumstances in this case.
The sentence moved for by the Crown was considered too high in the light of the facts of the offence and also the lack of previous convictions.
It was appropriate to apply an uplift to Count 7 to reflect the repeat nature of the offending.
S. C. Thomas, Esq., Crown Advocate.
Advocate J. N. Heywood for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. You are to be sentenced today for eight counts of indecent assault on a girl then aged between 8 and 10 years of age. These assaults, which consisted of touching her in the breast area under clothing and in the vaginal area similarly, all took place when she was in your sole care whilst your wife and your victim's parents were out at work in the evening. You were a family friend and the girls' family had complete trust in you. She referred to you as Grandfather.
2. Although the assaults were not of the worst kind they involved a significant breach of trust and took place over a relatively lengthy period, some 18 months to 2 years, and this has had an understanding detrimental effect on your victim, as we have heard from the Crown, and is contained in the report from Doctor Connor. We note that during the course of your offending how your victim began to steal to avoid returning to your home. You do not have the benefit of a guilty plea which would have spared your victim the ordeal of giving evidence and which is always so valuable in a case such as this.
3. We note, however, the mitigation that is available to you. You have no relevant previous convictions and you are accordingly and will be treated as a person of good character. We take into account that any sentence of imprisonment will be more challenging for you than for a person without your health issues.
4. We have reviewed carefully the cases that have been put before us and we keep in mind the principle articulated in cases, including that of AG-v-Brewster 2001/3, in which the court made it clear that a non-custodial disposal was possible only in exceptional circumstances in cases such as this.
5. We were asked to follow closely the sentencing guidelines applicable in England and Wales. We were shown by the Crown in the papers the opinion of eminent counsel who gave an opinion as to what he thought an English court would impose by way of a sentence. We are a Jersey court, sentencing in this jurisdiction, and whilst we can certainly have regard in assessing the correct sentence to the approach in England and Wales, we are not bound by it and do not consider an analysis of categories and the like as helpful. We have the benefit of flexibility in a small jurisdiction and we do not need the firm rules of sentencing that bind the courts in England and Wales in order to achieve consistency such as might be necessary in a larger jurisdiction. However, as I have said, we can and do pay regard to the general approach of the courts in England and Wales in cases of this nature but not the level of sentence.
6. Indeed, in a judgment handed down at the end of this morning, the Court of Appeal deprecated the obtaining of English Council's opinion which it characterised as unhelpful and running the risk of leading the Royal Court astray. Accordingly we would not expect to see the opinion of English Council contained in the bundles submitted by the Crown on any future occasion.
7. In considering the totality of the sentence we propose to impose a sentence on the most serious of offending, on one count applying a Valler uplift, (Valler-v-AG [2002] JLR 383) that of the vaginal touching, such as would allow concurrent sentences to be imposed on the other counts.
8. Before coming to sentence we deal firstly with the ancillary orders. In our view the appropriate period under the Sex Offenders (Jersey) Law 2010 that must pass before an application can be made by which you may apply to be removed from reporting requirements is a period of 5 years and not that of 10 years moved for by the Crown.
9. However, particularly in the light of the provisions of the social enquiry report, and in light of the effect on the victim that we have noted in the report of Doctor Conner, we think that it is, in this case, appropriate to impose a restraining order and we do so in the terms sought by the Crown for a period of 10 years from the date of this sentencing.
10. We turn now to the sentence to be imposed. In our view the sentence moved for by the Crown is too high and we propose to impose a lower sentence than that sought by the Crown. We do so in the light of our understanding of the facts of this offence but, more importantly, also in the light of our understanding of the previous sentencing policy and approach of the Jersey Courts.
11. In connection with Count 1 you will go to prison for 3½ years, Count 2; 3 years' imprisonment, concurrent, Count 3; 3½ years' imprisonment, concurrent, Count 4; 3 years' imprisonment, concurrent, Count 5; 3½ years' imprisonment, concurrent, Count 6; 3 years' imprisonment, concurrent, Count 7; applying a Valler uplift, 4 years' imprisonment, concurrent, and Count 8; 3 years' imprisonment, concurrent, making a total of 4 years' imprisonment.
12. We too have turned our minds to the question of deportation but for the reasons set out by the Crown in its conclusions, we make no recommendation to that end.
Authorities
Sex Offenders (Jersey) Law 2010.
AG-v-Brewster 2001/3.
AG-v-Hamon [2006] JRC 160.
AG-v-C [2016] JRC 038.
Sentencing Council definitive guideline: Sexual Offences (Sexual Assault of child under 13).
Sentencing Council definitive guideline: totality.