Jersey Unreported Judgments

Appeal by K against sentence imposed by the Royal Court on 15th August, 2016.  Appeal by the Attorney General for leave for a reference in relation to sentence imposed by the Royal Court on 13th June 2016 on the Respondent F.

[2016]JCA219

Court of Appeal

24 November 2016

Before     :

W. J. Bailhache, Esq., Bailiff, President; Miss Clare Montgomery Q.C., and; David Anderson, Esq., Q.C.

K

-v-

The Attorney General

The Attorney General

-v-

F

HM Attorney General.

Advocate M. J. Haines for K.

Advocate M. L. Preston for F.

JUDGMENT

THE president:

1.        This is the judgment of the Court to which all members have contributed in respect of two appeals.  One is an appeal by the Appellant K against a sentence of 10 years' imprisonment imposed by the Royal Court on 15th August 2016 and the other is an application by Her Majesty's Attorney General for leave for a reference under Article 45A of the Court of Appeal (Jersey) Law 1961 in relation to the sentence imposed by the Royal Court on 13th June 2016 on the Respondent F.  We give leave to appeal to the Appellant K. His appeal and the application for leave by the Attorney General raise similar issues in relation to the sentences imposed and it was convenient to hear them together. 

The facts in relation to the Appellant K

2.        K appeared before the Royal Court on 13th May 2016 when he entered not guilty pleas to all the twelve counts on an indictment.  An amended indictment was laid on 27th May, this containing six counts.  On this indictment he pleaded guilty to Counts 1 and 5 on an agreed basis.  Count 1 involved an indecent assault on a child aged 7 years by inserting the Appellant's penis into the victim's mouth, and Count 5 a similar charge albeit that the same victim was by then aged 9 or 10. 

3.        At the time of sentence K was aged 36.  He is the victim's step-father, being married to the victim's mother.  In 2015, when she was aged 17, the victim made a complaint to the police of sexual abuse by the Appellant.  She had previously made complaints of physical abuse and indeed in October 2008 the Appellant had pleaded guilty in the Magistrate's Court to three charges of child cruelty in respect of the victim - the first of those charges had involved pushing her onto her bed, holding her down by holding her arms above her head and punching her in the stomach.  In relation to the second of those charges, K had grabbed the victim by the waist, pushed her against the wall, put his right hand around her throat and squeezed.  The third charge in October 2008 had involved kicking the victim to the upper leg or buttock, K wearing steel toe-capped boots at the time.  In relation to those incidents that led to the criminal charges, K admitted to having regularly hit the victim, although he described these as gentle slaps.  He had been placed on probation for 2 years and ordered to undertake 150 hours of community service.  

4.        The facts of Count 1 as outlined by the Crown were these.  On an occasion when the victim was 7, K knocked on the wall between the bedroom and the sitting room.  He entered the sitting room where the victim was asleep in bed, dressed in her pyjamas.  At that time the victim's mother and K slept in the bedroom and the victim slept on a sofa bed in the living room.  K pulled the bed covers off and pulled her by the arm out of bed and into his bedroom the mother being absent.  He asked her to kneel down, took a piece of clothing from out of the chest of drawers and wrapped it around her head over her eyes so that she could not see anything.  He then tied her to the sink in his bedroom by pulling her hands behind her back around the pedestal of the sink and tying them together with an item of her mother's clothing.  She was therefore bound to the sink with her hands behind her back and was on her knees.  K then took off his boxer shorts, put his penis in her mouth and thrust it backwards and forwards repeatedly.  He grabbed her hair and pulled her backwards and forwards.  She tried to be still but he would not stop and just continued.  He then ejaculated into her mouth.  He instructed her not to swallow any of his semen but to spit it out in the sink.  He untied her hands so that she was able to stand up and spit out the semen but he told her not to take off her blindfold until he had left and gone to the bathroom. 

5.        On the second occasion (Count 5) he again knocked on the wall so that she knew what she was meant to do.  She went into his bedroom, got clothing out of the drawer herself and gave it to him.  He blindfolded her and tied her to the sink as previously after she had knelt down.  As she put it, she "let him do the rest" in order to avoid being hurt badly.  The second incident followed the same pattern as the first.  The victim said that on each occasion, when he had finished, she went back to bed and just lay there crying.  The Appellant K would take a shower. 

6.        Unsurprisingly, the effect on the victim was disturbing.  The Court below had a psychological report on her, which it took into account.  The learned Commissioner, Sir Michael Birt said this:-

"Although this judgment will be published in anonymised form we think it undesirable to describe the effect on the victim in any degree of detail in order to protect her privacy.  Suffice it to say that the symptoms she suffers from include flashbacks, sleep disturbance, dissociation and avoidance behaviours.  She has regular nightmares of a figure of someone dressed like the defendant and this person sometimes tries to hurt her.  Dr Karen Baker expresses the view that the range of symptoms which she suffers are consistent with her having post-traumatic stress disorder. The Court is of the opinion that the effect of the defendant's violation of the victim has been very considerable.

It is a sad fact that an additional trauma suffered by the victim is that, since she disclosed the sexual abuse, her mother has refused to have anything to do with her and has, in effect, taken the part of the defendant.  As a result, she sees little of her siblings as well as not seeing her mother."

7.        The Attorney General invited the court below to impose consecutive sentences in order to reflect the overall criminality even though concurrent sentences would ordinarily be appropriate where there was a series of offences of the same kind committed against the same person.  The Royal Court however took the view that imposing consecutive sentences would mean that the sentence for each individual offence would not properly reflect the gravity of that offence, and in those circumstances it would be appropriate to impose concurrent sentences but increase the sentence on the second offence to reflect the fact that the defendant had committed two offences rather than just one.  Although the judgment does not in turn say so, we are confident that the Royal Court had in mind that if an appropriate sentence for each individual offence had been imposed with an order that the second sentence run consecutively to the first, the totality principle would be infringed, because the overall sentence would be too high. 

8.        The Court below treated these as extremely serious offences, involving the blindfolding of a young victim, placing her in a humiliating and helpless position and then forcibly assaulting her by the penetration of her mouth with the Appellant's penis, thrusting forwards and backwards to the point of ejaculation.  Additional aggravating factors were the harm caused to the victim, the breach of trust, the further degradation of the victim and the location and timing of the offence.  As to mitigation, the Court noted the guilty plea but did not consider there was much else significant.  While it was true that the Appellant has no previous convictions for sexual offences, he did have convictions for violence against this particular child victim.  The degree of remorse was assessed as limited.  The Court took a starting point of 15 years for Count 5 on the basis that it was his second offence.  Applying a full discount of one third for the guilty plea, the Court imposed a sentence of 10 years on Count 2 and 9 years and 4 months on Count 1, such sentences to be served concurrently. 

9.        In addition the Court imposed a minimum period of 15 years before the Appellant could apply to be no longer subject to the notification requirements under the Sex Offenders (Jersey) Law 2010 ("the 2010 Law") and a number of restraining orders, also to be imposed for a period of 15 years. 

The facts in relation to the Respondent F

10.      Following a trial, F was convicted of four counts of indecent assault and sentenced on 24th June 2016 to 5 years and 4 months' imprisonment.  The offences occurred between 1996 and 2001 and were committed on children in the home which the Respondent was sharing with the children's mother.  The first victim was aged between 3 and 7 years at the time of the offending which involved digital penetration of her vagina in her bedroom.  This was alleged by the prosecution to be a course of conduct which occurred regularly between 1996 and 2001 involving penetration with one finger (Counts 1 and 2) progressing to the use of two fingers on one occasion (Count 3).  The victim told the jury that this conduct became normal practice and that she would feel neglected if it did not happen at bedtime.  The Respondent told her that this was their secret, and she should not tell anyone.  The victim told the jury that she loved the Respondent and he would not otherwise have been able to do what he did to her.  The abuse was disclosed by the first victim to her mother in 2008, long after the mother and the Respondent had separated, but it was not until 2012 that the first victim felt able to give an ABE interview to the police in England. 

11.      The second victim was an older half-sister of the first, aged between 13 and 14 when on one occasion the Respondent came into her room at night.  This occurred sometime between 1999 and 2001.  The assault involved 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".  He 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, to which the Defendant reacted by going onto the offensive in oral argument with the mother.  The incident was reported to the police relatively soon afterwards, when the second victim gave an ABE interview and the Defendant was also interviewed.  At that time a decision was made not to prosecute the Defendant and he was informed of it.  The police did not interview any of the other children and the first victim therefore did not have an opportunity at that time to tell of the abuse that was happening to her. 

12.      The Respondent was interviewed in relation to the first victim's complaint in April 2013.  He dismissed the allegations as rubbish.  At trial, both the mother and the two victims had to give evidence and were cross-examined.  The trial judge commented that all three witnesses found the experience very intrusive and distressing.  The Respondent did not give evidence.  The defence was that the mother was motivated by greed or revenge and had planted in the children's minds the idea that they had been abused. 

13.      The Crown moved for a total sentence of 7 years' imprisonment - 6½ years in relation to the three counts involving the first victim, and 6 months consecutive in relation to the count involving the second victim.  The submission was that the aggravating features were the age of the victims, in particular the first victim, the fact that the Respondent was in breach of trust, the duration of the abuse in relation to the first victim, the procuring of the first victim's silence by threats, the profound impact upon the victims as shown by their personal statements and the lack of any remorse on the part of the Respondent.  The Royal Court noted that the personal statements contained a good deal of material in relation to conduct which was set out in other counts of which the Respondent was acquitted.  The Court noted that the statements were personal statements and not victim impact assessments made by an independent psychologist, and accordingly treated the statements with respect but also with caution.  The Respondent was treated as a man of good character and he produced many references showing that he was held in high regard by a number of individuals.  The Royal Court noted that there had been a long delay in bringing the matter to trial, and agreed with defence counsel that the case had not been "progressed expeditiously".  The Court also agreed that the prosecution assertion that the Respondent had told the victim that it was their little secret that did not amount to a threat in any real sense - rather it was more akin to manipulation.  The Court agreed with the defence submission that a starting point of 7 years' imprisonment in relation to the first victim was too high, and took instead a starting point of 5½ years in relation to Count 3 and 5 years in relation to Counts 1 and 2.  Accordingly sentences of 4½ years were imposed on each of Counts 1 and 2 and 5 years, concurrent on Count 3.  The Court took the view that the offence in relation to the second victim should receive a consecutive sentence.  Allowance was made for the fact that the Respondent had been interviewed in 2002 and formally told he would not be prosecuted, at a time when the authorities were not aware of the full nature of the allegations subsequently made by the second victim against him, of which he was acquitted, and the Court treated the assault as one which fell at the lower end of the scale for such offences.  Rightly the Royal Court sentenced the Respondent 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.  A sentence of 4 months' imprisonment, consecutive was imposed on that Count. 

Attorney General's contentions

14.      In relation to the case against F, the Attorney General seeks leave to bring an Attorney General's reference under Article 45A of the Court of Appeal (Jersey) Law 1961 on the grounds that the sentences of 4½ years and 5 years' imprisonment on Counts 1 and 2 respectively failed to reflect adequately the gravity of the offences for various reasons which were expanded upon in the contentions, and he invites the Court of Appeal to review the Royal Court sentencing policy in relation to offences of indecent assault involving digital penetration of children under the age of 13 by adults in abuse of trust.  He particularly invites the Court of Appeal to have regard to the guidelines laid down by the Sentencing Council for England and Wales for similar offences, and to consider setting sentencing guidelines for this offending in Jersey.  The Crown did not reach its conclusions by having regard to the Sentencing Guidelines published by the Sentencing Council of England and Wales ("the Guidelines") and did not place these before the Royal Court.  It is common ground that the application directly or indirectly of the Guidelines would lead to very different conclusions from the Crown and indeed in this Court the Attorney General submitted that the proper starting point having regard to the Guidelines, would have been 12 years on Counts 1 and 2, 13 years on Count 3 and 6 months on Count 11, with commensurate conclusions of 11 years on Counts 1 and 2, 12 years on Count 3, all concurrent and 6 months' consecutive on Count 11.  We were invited to increase the sentences imposed accordingly. 

K contentions

15.      The principal contentions advanced by Advocate Haines on behalf of the Appellant K were these:-

(i)        The sentence of 10 years' imprisonment was manifestly excessive. 

(ii)       The Royal Court wrongly sentenced the Defendant as if he had been convicted of rape, rather than indecent assault. 

(iii)      The Royal Court failed to follow and/or have appropriate regard to its own previous decisions and that of the Court of Appeal in J v AG [2016] JCA 090. 

(iv)      The Royal Court was wrong in principle in following guidelines created in England and Wales by the Sentencing Guidelines Council. 

(v)       The Defendant's plea of guilty had been entered on the expectation that he would be sentenced in accordance with the existing sentencing policy of the Royal Court for the offences charged. 

16.      Within these general headings, a number of sub-points were made. 

Sentencing on the basis of guidelines for rape

17.      It was contended by Advocate Haines that the Royal Court was wrong to sentence the Appellant K on the basis of guidelines that apply to cases of rape. In support of his contention that the Royal Court did in fact take that approach, he relied upon the following passages in the judgment of the Court:-

"(ii) Is it proper to apply rape sentencing guidelines to the present offences?

38. As already stated, this Court held in T that it was proper to do so in relation to the particular offences of indecent assault which were before it.  The Court also appears by implication to have adopted this approach in the case of Attorney General v Jalam [2015] JRC 169, although this is not specifically stated in the judgment of the Deputy Bailiff.  That case involved an indecent assault on a woman aged 22.  Although some consensual sexual activity had taken place between her and the defendant earlier on in the evening, she made it clear that she did not want the matter to go any further.  The defendant then took her into a small private car park and blocked her escape.  He demanded that she perform oral sex on him and she refused.  He hit her four times to the head in rapid succession and she fell to the ground.  He then forced his penis into her mouth and repeatedly forced her to perform oral sex on him.  The Crown relied on the Milberry guidelines for rape sentencing on the basis that the facts of the offence should be regarded as being in a similarly serious category for sentencing purposes as rape.  It took a starting point of six years with recommendation for a sentence of four and a half years after deduction for the guilty plea and mitigation.  The Royal Court granted the conclusions.  It did not deal specifically with whether it regarded rape sentencing levels as helpful, but said at paragraph 4 of its judgment that it considered that the Crown was correct in its approach in the light of all the circumstances.  We read that as agreeing with the proposition that the sentencing guidelines for rape were applicable to the facts of that case.

39. Advocate Haines submitted that the Court was wrong in T and Jalam to proceed in this manner.  The defendant in this case had not been convicted of or pleaded guilty to the offence of rape; he had pleaded guilty to indecent assault.  The fact that the facts of the offence would constitute rape in England and Wales did not mean that this Court could pass sentence as if it were a rape in this jurisdiction.

40. In our judgment, that submission misunderstands what the Court actually said in T and (by implication) in Jalam.  We accept entirely that the defendants in T and Jalam did not stand convicted of rape; they were therefore to be sentenced for the offences of indecent assault to which they had pleaded guilty.  However, what the Court said in T was that the facts of those particular indecent assaults were, in the Court's opinion, just as serious as rape involving vaginal penetration and that therefore the level of sentence should be similar to that which it would be for rape.

41. This Court entirely agrees with that approach.  We cannot improve on the language used by Commissioner Clyde-Smith at paragraph 10 in T, which we have already set out at paragraph 28 above.  To force a penis into the mouth of a 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 a rape involving vaginal penetration.  Penetration of the mouth constitutes an intensely intimate and degrading act which can involve a severe degree of emotional and psychological trauma.  That is the firm view of the members of this Court which includes three Jurats beyond those who sat in T (so that a total of nine Jurats have so far expressed that view).

42. The Court in T was careful to confine its observation to the type of indecent assault which was before it and with which we are also concerned, i.e. the use of force or threats to force a penis into the mouth of an unwilling victim.  Neither in T nor in this case is it being asserted that all cases of fellatio (charged as procuring an act of gross indecency when the facts do not disclose an assault) should be treated as being as serious as rape.  Advocate Haines submitted that it was significant that in J the Court of Appeal did not apply the guidelines for offences of rape despite having T drawn to its attention.  We do not agree.  In J, the complainant was a thirteen year old girl and willing participant and there can therefore be no comparison in such a case with the sentencing guidelines for rape.  It is therefore not surprising that the Court of Appeal did not allude to rape sentencing guidelines. 

43. It follows that we consider the sentencing levels for offences of rape to be relevant and helpful in determining the correct sentence for the offences before us."

18.      One of the reasons that the Court below addressed this issue was that the Attorney General had submitted that sentences for certain sexual offences in Jersey had fallen behind the levels of sanctions for such offences in England and Wales.  He invited the Royal Court to sentence with the Guidelines firmly in mind.  Having regard to the fact that the conduct alleged against the Appellant K in this case would have been properly charged as rape of a girl under the age of 13, had the offence taken place in England, under Section 5 of the Sexual Offences Act 2003, which created a new statutory definition of rape of a child under the age of 13 where there has been an intentional penetration of the vagina, anus or mouth of another person with the defendant's penis, the Attorney's conclusions had been to the effect that, after allowance of a one third discount for the guilty plea, K should be sentenced to a total of 12 years imprisonment.

19.      In two cases, the Royal Court does appear to have imposed sentences in relation to offences of indecent assault on the basis of the applicable guidelines for sentencing in rape cases.  In the case of AG-v-T [2016] JRC 001, the defendant pleaded guilty to two counts of indecent assault on a female child aged 10, the defendant being the partner of a woman who looked after the victim while the victim's mother was at work.  In relation to the first count, the defendant had taken the victim to accommodation on a building site, and, once inside had grabbed the complainant by the neck and pulled her up from the floor.  He squeezed her cheeks very hard forcing her jaw open in order for him to insert his penis into her mouth.  She said that his penis touched her lips and it went into her mouth a little but did not go beyond her teeth.  The defendant ejaculated and some semen went onto the victim's lips with the rest going on the floor.  The victim also disclosed that the defendant had indecently assaulted her in the same manner at his bedsit when she was 8. 

20.      The court in AG v T went on to say that the particular offence before it should be regarded as being in a similarly serious category for sentencing purposes as rape, and therefore the court had regard to the court's sentencing policy in cases of rape.  That took it into consideration of the leading English case of R v Milberry [2003] 1Cr App R 25. 

21.      In AG v Jalam [2015] JRC 169, the details of which offence are set out in the extract from the judgment under appeal at paragraph 17 above, we agree with the Court below that the Royal Court must be taken as having agreed with the proposition that the sentencing guidelines for rape were applicable to the facts of that case. 

22.      Accordingly, Advocate Haines submitted both below and in this Court that in essence the Royal Court was wrong in T and in Jalam to sentence as if the defendants had been convicted of the offence of rape, and that the Royal Court was wrong in the instant case to do so. 

23.      In our judgment this submission is misconceived.  What the Royal Court said in AG v T was that it was relevant to have regard to the sentencing guidelines in cases of rape because the offences for which the defendant in that case was being sentenced were "in the same category of seriousness as rapes involving vaginal penetration".  Such a conclusion was eminently within the range of reasonable conclusions for the Royal Court to reach.  In Jersey, sentences for the offences of rape and indecent assault are at large - in other words, both offences carry a maximum sentence of life imprisonment.  It is not at all wrong in principle to compare conduct which amounts in law to rape with conduct which, although not rape, is considered by the Court to fall into a similar degree of seriousness.  Such a conclusion might not have been possible under the criminal law of England and Wales before 2003, but it has always been possible in Jersey.  It follows that these particular statutory changes introduced by the Sexual Offences Act of 2003 are not relevant to what we have to consider, because the Royal Court was not sentencing for rape, but sentencing a defendant charged with offences of indecent assault which were as serious, in the Court's view, as rape. 

24.      In our judgment the Royal Court was right to apply a similar test in the present case.  It is particularly noteworthy that at paragraph 41, cited above, the Royal Court said in the instant case that it could not improve on the language used by Commissioner Clyde-Smith in T which represented the firm view of the members of the Royal Court in the present case, including three of the Jurats beyond those who sat in T (so that a total of nine Jurats have so far expressed that view). 

25.      We should not leave this question without remarking that we also agree on the qualification which the Royal Court adopted at paragraph 42 of its judgment cited above.  The case of T and the instant case involve the use of force or threats for force a penis into the mouth of an unwilling victim. That takes the indecent assault into a different category of seriousness.  There is no comparison between a willing participant and conduct of the kind we are considering in this case. 

26.      In our judgment, the Royal Court was perfectly entitled to follow the line which it did in its assessment of the seriousness of the offences committed by this Appellant in this case, and treat them as seriously as offences of rape would have been treated had those been committed. 

Sentencing Guidelines Council

27.      We now turn to the issue of the Guidelines on which many of the submissions to us were focussed.  At paragraph 49 in the sentencing remarks in relation to K, the Royal Court commenced a helpfully comprehensive review of the current approach to rape sentencing in England and Wales and the extent to which the courts in Jersey should adjust sentencing levels by having regard to sentencing in England.  The conclusions reached may be summarised in these propositions:-

(i)        Jersey is a separate jurisdiction and the courts are entitled to fix its own sentencing levels.  The Royal Court is not in any sense bound by the Guidelines. 

(ii)       The analysis of aggravating and mitigating factors which is frequently set out in the Guidelines often, perhaps even usually, provides a convincing rationale for the assessment of the seriousness of the offending which can conveniently be adopted in Jersey. 

(iii)      The Court would be influenced by the sentencing levels envisaged by the Guidelines when considering the conduct of K because it considered the sentencing levels to be correct for that conduct. 

(iv)      The Court should decide on the appropriate sentence for the offence before it in every case, and it did not follow that because the Guidelines were helpful in the case of K, they would always be helpful to enable the Court to arrive at the correct level of sentence for that particular offence in the jurisdiction of Jersey. 

(v)       There was no reason in principle why it should be thought right for Jersey to impose lower sentences for an offence as committed by K than would have been imposed in England and Wales.  

28.      In our judgment, the Royal Court was correct both in the case of the Appellant K and in the other cases to which the learned Commissioner Sir Michael Birt referred in his judgment below, to emphasise that the sentencing levels set by the Guidelines do not apply in Jersey.  There are many reasons for this, variously set out in the different cases:-

(i)        The Island's different sentencing jurisdiction is a part of its constitutional history, marked by the structural differences between the application of the criminal law in Jersey from that in England and Wales.  The length of sentence is determined by Jurats elected to that office by an electoral college comprising States Members and practising lawyers.  The Jurats are drawn from a wide range of skill sets within the Island and can be expected to represent a reasonable cross-section of the Island community.  Secondly, the sentencing approach of the Royal Court is influenced by the conclusions of Her Majesty's Attorney General which are presented not as part of the prosecution calling for the most severe sentence, but as a preliminary quasi-judicial opinion designed to ensure that the Royal Court has the key guideline cases referred to it and is consistent in its approach. 

(ii)       Whereas there was a time when Parliament in Westminster exercised a light touch in sentencing provisions in legislation, the last 30 years or so has seen a very significant increase in statutory provision affecting both the criminal law and the sentences which the courts are to impose.  Whether that has or has not been helpful in the United Kingdom is not a matter for this Court, but it is clear that decisions of a different parliament, representing an electorate which is not a Jersey electorate, cannot necessarily be of assistance in Jersey. 

(iii)      One consequence of increased legislation in criminal matters in England and Wales is that there is now a very different statutory regime applied there than applies in Jersey.  The offences are sometimes expressed in different ways, and there is a far wider range of sentence that is available to the courts in England and Wales than is available in Jersey.  It is sometimes difficult to compare sentences for the same criminal offence, which is one of the reasons why the courts have so frequently said that unless the case can be properly described as a guideline case, courts should be wary of trying to compare the facts of one case too closely with another in deciding upon the right sentence.  The Royal Court below was right to refer to the remarks of Le Quesne JA in Wood v AG [1994] JLR Notes 15a and 1994/032 when he said this:-

"It is necessary to refer to earlier cases when dealing with appeals against sentence in order to ensure, as far as possible, that the right degree of consistency is achieved between one case and another.  Indeed it is for this purpose that both this Court and the Royal Court have, on occasion, when passing a sentence, not only dealt with the particular offender before then, but have also laid down guidelines to be followed in subsequent cases.  It is necessary and important, however, to remember that reference to earlier cases is made in order to see the principles and guidelines which have been laid down there and to follow them.

The purpose of referring to earlier cases is not to analyse the exact sentence which was then passed and the precise reasons why the Court arrived at it.  This would be an impossible undertaking since sentencing is a discretionary exercise in every case and the reports do not include every feature which influence the Court in exercising its discretion on earlier occasions.

We notice a tendency, particularly in appeals against sentence in drug related cases to try to calculate the exact effect given by the Court in earlier cases to each factor and then to say that those effects must be reproduced in the case at hand.  This is a misleading exercise since, as I have said, it is impossible from the reports to discover every consideration which influenced the Court. It is also an exercise which, if it could be achieved, would be inconsistent with the discretionary nature of the sentencing function.  That discretion, like all discretions, has to be exercised on proper grounds and with due regard to relevant principles, but the important fact remains that in deciding upon the sentence of every case, the Court is exercising its discretion upon the facts of that case."

29.      The remarks of Le Quesne JA were noted in Dykes v AG [1999] JLR 146 at 153 as being as pertinent to cases involving indecent assaults as they were to the offence of supplying a class A drug.  If it is difficult to compare sentences in cases involving like offences, how much more difficult is it to do so when the offences are different?  This emphasises the difference in the criminal law regimes of Jersey on the one hand and England and Wales on the other such that a simple transposition of the Guidelines to Jersey is neither desirable nor legitimate. 

30.      We respectfully endorse the approach taken by the seven judge Guernsey Court of Appeal in Wicks v Law Officers [2011 - 12] GLR 482 when, having indicated that where the elements of the offence in question are comparable in the two jurisdictions of Guernsey on the one hand and England and Wales on the other, the Guernsey courts might well derive considerable assistance from the sentencing practice applied in England because of its larger size and the greater number of cases, the Court added at paragraph 18:-

"But there is no need for there to be a significant difference in social or other conditions for the Guernsey Courts to take a different approach from England and Wales and adopt a different level of sentencing. The Guernsey Courts may simply consider that the sentencing levels in England are either too high or too law and should not be followed.  They are perfectly free to do so.  It is wrong to start from the position that sentencing levels in England are correct and that there must be some specific reason to depart from them. Rather, the position from which it is right to start is that the Guernsey Courts must determine the appropriate sentencing levels for offences committed in Guernsey and that, in doing so, they may or may not derive assistance from what is done in England and Wales or in any other jurisdiction."

31.      In our judgment, that reflects the correct approach to be taken in Jersey as well.  We can add that while we can well understand that in a larger jurisdiction it might be necessary or desirable, for the purposes of ensuring consistency in the courts of that jurisdiction or of meeting other political objectives there, to adopt a more formulaic and mechanical approach to sentencing as is now reflected by the use of the Guidelines, backed up by statutory provision which requires the sentencing court to apply such guidelines, that is not an approach which has been adopted in Jersey, and indeed it is not consistent with the remarks of Le Quesne JA which are cited above and which describe the traditional approach to sentencing - an approach which recognises that the Court is trusted to arrive at the appropriate sentence having regard to the individual features of the offence, the victim and the offender, and the requirements of sentencing policy having regard to the prevalence of offending of that kind in that jurisdiction, and the needs of the community.  In the Channel Islands, the presence of the Jurats is an important structural feature in that respect. 

32.      Similarly, although the Royal Court in the K case was encouraged to take the approach that there is no reason why sentencing levels in Jersey for these offences should be markedly lower in Jersey than in England and Wales, it appears to us that such an approach misses the point that this Island has a separate sentencing jurisdiction; and, as emphasised in Wicks and in many other cases in this Island, it is for the Jurats to settle upon the sentencing policy they consider to be right.  They may wish to have regard to sentencing levels in England and Wales but there is no presumption that these should be followed in Jersey for all the reasons set out at paragraph 28 above and if the Court chooses not to adopt such sentencing levels, there is no obligation to justify why it has not done so.  The Court does not start from the premise that the Guidelines provide a prima facie correct level of starting points or sentencing ranges and indeed the rigidity of the Guidelines, with a direct consequence in some cases of what appear to be surprisingly severe sentences, demonstrates why in this jurisdiction that is not appropriate. 

33.      In the case of K, the Royal Court received opinions from experienced English Counsel instructed by the Crown and the defence as to what the sentence would have been, had the case been dealt with in England.  We think this was an unhelpful exercise and was at risk of leading the Royal Court astray because of the implied suggestion that the Guidelines had a force or status which they do not in fact have.  However, as has been said on other occasions the Guidelines helpfully set out factors which are properly regarded as distinguishing some offences from others in terms of seriousness.  While we do not endorse the starting points or anticipated range of finishing points for particular offences, we think it is entirely appropriate for the Royal Court to have regard to the factors which, accordingly to the Guidelines, would assist an English Court to categorise the seriousness of the offence. 

34.      In reaching our conclusions on the instant appeals, this Court has considered the Guidelines accordingly, but we have not applied them in so far as the levels of sentence or starting point are concerned. 

K's appeal

35.      Against that background we now turn to the particular appeal in this case.  We have considered whether the Appellant K can legitimately assert that the sentence imposed in his case was manifestly excessive.  Bearing in mind the oft repeated comments in this Court that a comparison of sentences imposed in some cases against the sentence imposed in the case under consideration is generally unhelpful, we have not attempted a case by case review of the sentences imposed and the underlying facts of other cases involving indecent assault in Jersey.  We agree with the learned Commissioner below that the case of J v AG in this Court was a decision which turned on its own facts.  In so far as the Guidelines are concerned, the Royal Court would have been wrong to have concluded that it was obliged to follow them, but it is absolutely clear that it did not take that view - the Jurats considered that the Guidelines were useful in this particular case.  That is apparent from paragraph 61 of the judgment under appeal where the Court said this:-

"In this case, the maximum sentence for indecent assault in Jersey and for rape of a child under 13 in England and Wales is the same, namely life imprisonment. In our judgment, the sentencing levels envisaged by the guidelines for the conduct of the defendant in this case are also correct for this jurisdiction. We have no doubt that right thinking members of the community in Jersey find such conduct abhorrent and would consider that young children are entitled to the protection of the courts, so that persons who commit such offences can expect condign punishment. We cannot think of a single reason as to why it should be thought right for Jersey to impose lower sentences for an offence of this nature than is imposed in England and Wales."  [emphasis added]

36.      It is clear that the Royal Court recognised that it was not obligatory to follow the Guidelines but thought it was right to apply them in this particular case for this particular offending.  That independent assessment by the Court was consistent with principle. 

37.      We have already indicated that we do not think that the Royal Court sentenced the Defendant as if he had been convicted of rape - its approach was simply to treat the offences which he had committed as being as serious as rape, and a review of the facts set out at paragraphs 2 - 8 of this judgment justify that conclusion.  These were appalling offences of indecent assault committed on a young girl of 7 and again when she was 9 or 10, treated in humiliating and degrading fashion, and in gross breach of trust.  In our judgment it cannot be said that the sentences imposed were excessive, yet alone manifestly excessive.  The Royal Court was absolutely entitled to set upon the starting points it did and arrive at the sentences actually imposed. 

38.      It was submitted on behalf of the Appellant that there were numbers of cases which had the effect of setting out a sentencing policy of the Royal Court.  These were AG v F [2016] JRC 109A, the subject of the Attorney's reference in this pair of appeals, J v Attorney General [2016] JCA 090 and others referred to below.  The range of sentences imposed by the Court in these various cases was between 4 and 6 years' imprisonment.  A close examination of the cases shows, however, that the underlying facts were generally not comparable to those which appertain in the case of K.  The difference between the facts of the two appeals before us is obvious.  As to the others, in the case of J, a decision of this Court, the offences were committed against a much older victim; in the case of U, the victim was again much older, and there was no degradation of the kind involved in the present appeal; in G, the victims were aged 14, and in DS the victim was a similar age.  It is true that in T, there is a greater similarity of fact, but as was made clear by the Commissioner in the instant case, there remained some differences - the humiliation and degradation was at a different scale in the present case, and furthermore there was ejaculation into the mouth of the victim.  The defendant in T of course pleaded guilty as did the appellant K. 

39.      It was common ground before us that the Royal Court imposed in the present case a higher sentence than perhaps might have been expected on the basis of T or indeed previous cases.  It has been recognised in the Royal Court previously that there is today a greater awareness of the damage which is done to the victims of indecent assault and rape than has hitherto been the case, and the psychological report in the case of the victim of K shows how applicable that general statement is on the facts of this case.  This emphasises that the Royal Court was entitled to consider the approach taken in England and Wales, as set out by the Guidelines for the purposes of considering what would be the appropriate starting point in Jersey for these particular offences.  

40.      The Appellant K contends that his plea of guilty was entered on the expectation that he would be sentenced in accordance with the existing sentencing policy of the Royal Court for the offences charged.  No case has been shown to us which is comparable on the facts, or which establishes a sentencing policy such as to justify this contention.  However, even if there had been such a sentencing policy, we consider the Royal Court was right to apply the decision of the English Court of Appeal in R v H and others [2012] 1 WLR 1416, when it was held that while a sentence imposed could not exceed the maximum sentence which could have been imposed by law at the time the offence was committed, the defendant should otherwise be sentenced in accordance with the sentencing regime applicable at the date of sentence and not at the date of the offence.  Such a conclusion is right in principle, not least because, having regard to the need for consistency, the Court would otherwise be driven to an analysis of sentencing policy at different times when considering different cases put before it, and would have to do so in every case.  That is neither right in principle nor is it practicable. 

41.      For all these reasons the appeal against sentence by the Appellant K is dismissed. 

42.      Under the amended grounds of appeal, the Appellant appeals against the duration period of 15 years during which he cannot bring an application to the Royal Court for disapplication of the notification requirements under the Sex Offenders (Jersey) Law 2010 (the "2010 Law") a similar period in respect of the application of various restrictions, and in particular a restriction imposed by the Royal Court that the restrictive order should prohibit him from having any contact, whether direct or indirect, with the victim.  The basis for asserting that the duration period of 15 years is too long is that it is said to have been wrong, disproportionate to the risks in the case, inconsistent with other relevant case law and failed to take into account a number of factors, details of which appear below. 

43.      We do not need to deal with the appeal against the restriction which prohibits any contact with the victim for a duration of 15 years because the Appellant abandoned that ground of appeal in oral argument. 

44.      We have considered the complaint that the period of the notification and restraining orders is as long as 15 years.  The Appellant contends that there is inconsistency with three other cases involving oral sex - Jalam, T and J.  We do not consider this is a relevant complaint.  The issue which the Court is required to address both in respect of the notification requirements and in respect of any restraining orders is not in any direct sense the nature of the sexual activity which led to the offence and therefore the imposition of the requirements or restraining orders as the case may be.  What the Court is required to do under Article 5 of the 2010 Law is to assess the risk of serious sexual harm to the public or a particular person or persons and fix the relevant period which must expire before an application can be made for the notification requirements to be supplied. 

45.      The Court is required to settle the relevant period which must expire before the sentence takes place.  Article 5(1) of the 2010 Law provides as follows:-

"Except as provided by paragraph (2), a court that convicts a person of a relevant offence must, unless it intends to make an order under Article 4 (certain exceptions), before sentencing the person specify a period that must expire before an application under paragraph (5) may be made." [emphasis added]

46.      The requirement that the Court must make an order specifying the period before sentencing the defendant demonstrates that the length of sentence imposed is considered by the legislature to be immaterial to the exercise which the Court must carry out.  The notification requirements are not part of the sentence imposed upon the defendant, which is why the appeal provisions under Article 18 refer to a review, and in addition, why the emphasis under Article 5(4) is upon the Court taking into account the risk of sexual harm to the public by virtue of the likelihood of re-offending.  While the sentence looks back to the offending conduct, the notification requirements look forward to prevent the risk of reoffending.  This is not to say that when a person applies to have the notification requirements dis-applied to him, the Court will not have regard to the length of time which has passed since his release from custody.  It appears to us that is likely to be a very material consideration as it will go to the assessment of the risk of sexual harm to the public or to any particular person or persons at that time. 

47.      In our judgment the reality is that at the date of setting the minimum period that must expire before an application is made, the information available to the Court is bound to be less comprehensive than that which is available at some point after the period in custody had been served.  At the later date the extent of the risk can be better assessed - in some cases it will be perceived to be still very high, and in others very much more moderate.  In our judgement this characteristic should lead the Court to impose shorter rather than longer periods of disqualification before the person subject to the notification requirements can apply to have them dis-applied to him.  Having regard to all the information put before the Court in this case, we consider that the period which ought to have been specified before an application under Article 5(5) of the 2010 Law might be made is 10 years. 

48.      In connection with the restraining order, we have noted that Article 10(12) provides that an amendment of an order may, in particular, extend or shorten the period specified in the order.  The application to amend may be brought either by the Attorney General or by the offender.  Once again the ability to amend the order at a later date enables the Court to have regard to the progress made by the offender in the interim, and the extent of the risk of serious sexual harm which the offender poses to the public or to any particular person or persons for the purposes of Article 10(4).  A material difference between the notification requirements and the restraining order however is that the offender remains subject to the notification requirements until he makes an application to have them dis-applied.  Conversely, the onus lies on the Attorney to have the period of a restraining order extended.  In those circumstances the Court might legitimately take the view that the more cautious and longer period for the restraining order should be imposed, in the knowledge that if real progress is made the offender can apply to have the period of the restraining order reduced.  Having regard to those considerations, we consider that the period of 15 years imposed by the Royal Court in the instant case was legitimate and we do not disturb it. 

The Attorney General's reference

49.      On 24th June 2010 the Attorney General applied to this Court for leave to refer the sentence of the Respondent F on the grounds that it was unduly lenient.  The reference was made pursuant to Article 45A of the Court of Appeal (Jersey) Law 1961.  In AG v Kittleson [2011] JCA 052 the Court of Appeal suggested that the appellate court will normally grant leave in such applications even if the Court is not satisfied that the sentence is unduly lenient.  In the ordinary course we see the sense in that procedure being adopted since it permits the application to be dealt with in a single hearing.  However in this case we consider it is necessary to subject the application for leave to greater scrutiny, because the Attorney General wishes to advance argument on the Reference that was not advanced before the Royal Court as the result of the post sentence appreciation by the Attorney General that there was a significant disparity between the approach to sentence adopted in the Royal Court and the sentence that would be imposed in England and Wales on similar or identical facts.  Before the Royal Court the Crown's contentions on sentence identified the appropriate sentence as one of 7 years' imprisonment.  The submissions now advanced suggest that the appropriate sentence was nearly double that suggested, namely 12½ years' imprisonment.  

50.      We accept that the Crown's contentions do not bind the Royal Court and do not bind the Court of Appeal on appeal.  However it is important to recognise that in the adversarial system that applies in sentencing, the defence (and the courts) are entitled to rely on the Crown to bring their whole case before the courts so that all aspects of it may be finally decided and an appropriate sentence passed.  A prosecutor cannot, absent special circumstances, return to the court to put forward arguments or claims which they could have raised on the first occasion but did not do so, whether through negligence or accident.  We consider that any application for leave in this case must be considered having regard to this principle.  The Court must also consider the possibility of injustice being caused by the grant of leave since, by virtue of the provisions of Article 45B of the Court of Appeal (Jersey) Law 1961 there is no scope for the court making any allowance for the impact of "double jeopardy" even though the defendant might be liable to be sentenced for a second time through no fault on his part. 

51.      We have derived some assistance from the approach of the High Court of Australia to applications for a prosecution review of sentence where the prosecution wishes to advance arguments not advanced before the sentencing court.  In joint reasons (Brennan, Deane, Dawson and Gaudron JJ) in Everett (1994) 181 CLR 295 at 302 King CJ's statement of principle in R v Wilton (1981) 28 SASR 362 at 367-368 was approved to the effect that the court would only allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, in exceptional circumstances.  Generally speaking, if a submission is not made to a sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.  This approach was recently confirmed by the High Court of Australia in CMB v Attorney General for New South Wales (2015) 256 CLR 346.  In that case the Court accepted that the public interest in the sentencing of offenders means that the power to review sentence must be available even in cases of prosecution error.  Nonetheless, any failure by the Prosecutor to advance his case before the sentencing court is a material consideration in the exercise of the discretion to grant leave to review any sentence. 

52.      Among the reasons for restraint in permitting a prosecution appeal on a ground not taken below is the risk of prejudice to the defence, particularly if their case might have been conducted differently had the prosecution's stance been known.  In addition the sentencing court's reasons for sentence inevitably reflect the issues that were live at the sentencing hearing.  Where, as here, the issue below was a relatively narrow one between a starting point of 4½ years or 7 years' imprisonment, the reasoning of the court does not grapple with the issues that are now raised by the Attorney General in a way that permits the Court of Appeal to review the reasoning of the Court below. 

53.      In our view this is not a case in which we should grant leave to the Attorney General under Article 45A.  The matters raised on the review could and should have been raised in the Royal Court.  There are no circumstances that justify the grant of leave to allow them to be raised for the first time on appeal.  

54.      Notwithstanding that we have not granted leave to the Attorney General under Article 45A for the reasons given, we would like to add this.  The comments which we have made in this judgment suggest that the Royal Court may wish to review upwards sentences for indecent assaults involving digital penetration of children in future cases.  If we had been looking at an application by the Attorney General for leave to bring a reference in relation to the sentence imposed on F measured against the Crown's conclusions, we would have considered the sentence to be lenient but not so unduly lenient as to justify an increase of it.  That is not to say that sentences at this level will necessarily be appropriate for similar cases in the future.  That will be a matter for the Royal Court to consider in the first instance, should such cases arise. 

Authorities

Court of Appeal (Jersey) Law 1961.

Sex Offenders (Jersey) Law 2010.

J v AG [2016] JCA 090.

Sexual Offences Act 2003.

AG-v-T [2016] JRC 001.

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

AG v Jalam [2015] JRC 169.

Wood v AG [1994] JLR Notes 15a.

Wood-v-AG 1994/032.

Dykes v AG [1999] JLR 146.

Wicks v Law Officers [2011 - 12] GLR 482.

AG v F [2016] JRC 109A.

R v H and others [2012] 1 WLR 1416.

AG v Kittleson [2011] JCA 052.

Everett (1994) 181 CLR 295.

R v Wilton (1981) 28 SASR 362.

CMB v Attorney General for New South Wales (2015) 256 CLR 346.