Jersey Unreported Judgments

Inferior Number Sentencing - unlawful sexual intercourse, contrary to Article 4(1) of the Loi (1895) Modifiant le Droit Criminel.

[2017]JRC022

Royal Court

(Samedi)

27 January 2017

The Attorney General

-v-

Z

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

Age:  19 but aged 17 at the time of offending. 

Plea: Guilty. 

Details of Offence:

On the night of 4^th to 5^th September, 2015, Z had sexual intercourse with two 15 year old girls.  Z's father had died two weeks beforehand, and his friends had thrown a party in order to cheer him up.  A number of 15 to 17 year olds attended, and alcohol was freely available.  Police were called to the party at about 9pm due to complaints about noise and underage drinking. 

The complainant in Count 1 was Z's girlfriend, Victim 1.  They had been together for only a week.  In her ABE interview, Victim 1 said that both she and Z were drunk.  She and Z had intercourse in an upstairs bedroom during the party.  Victim 1 had expected this, and had brought a condom to the party.  Z initially used the condom, but complained that it was uncomfortable and they then had unprotected intercourse.  Victim 1 felt bad afterwards, and regretted what had happened.  She was so drunk that she fell over and her friend had to help her home.  Victim 1 told her stepfather what had happened and the matter was reported to the police.  An investigation ensued, and among the items seized was a pair of Z's boxer shorts.  During the investigation it was alleged that Z had had intercourse with a second girl, Victim 2.  She initially denied this.  Z was interviewed and gave "no comment" answers. 

Victim 2 later made a complaint of rape to the police.  She and Z had had sexual intercourse that night.  Victim 2 was so intoxicated at the time that she thought Z was a different boy.  The intercourse was unprotected, and Victim 2 bled.  Victim 2 fell asleep in the bed and awoke alone. 

In interview, Z denied having intercourse with Victim 2, accused her of sexually assaulting him, and claimed to have been "set up". 

The boxer shorts seized in the initial investigation were sent for forensic analysis.  Blood staining containing Victim 2's DNA profile was found.  Z was re-interviewed and gave "no comment" answers. 

The unlawful sexual intercourse offence in relation to Victim 2 was an alternative to a rape charge.  The Crown accepted a not guilty plea to the rape. 

Details of Mitigation:

The Crown: Pleas - though the plea in relation to Victim 2 was entered almost three months after indictment.  Youth.  Previous good character.  Difficult background, and father died shortly before the offences.  In his Social Enquiry Report expressed regret regarding Victim 1, but denied intercourse with Victim 2. 

The Defence: Had watched his father's health deteriorate before his death, unacceptable delay.  Good use of time since charge.

Previous Convictions:

None.

Conclusions:

Total: 12 months' youth detention or if the Court wishes to impose a non-custodial sentence, 180 hours' Community Service Order, together with a 12 month Probation Order. 

Had Z appeared before the Court in relation to Victim 1 only, the Crown may have considered an exemption from the requirements of the Sex Offenders (Jersey) Law 2010 appropriate.  However, the context of the offence regarding Victim 2, coupled with Z moderate risk of reconviction made that inappropriate.

The Court moved for a minimum period of 5 years and a restrictive order prohibiting contact with Victim 2.

Order sought 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 sentence. 

Restraining Order sought under Article 10(4) that the accused is subject for a period of 5 years from the date of sentence with the condition that the accused is prohibited from having any direct or indirect contact with the second victim. 

Sentence and Observations of Court:

The two offences were committed in very different circumstances.  Z had strong mitigation and an exceptional reference from the Grace Trust. 

Total: 120 hours' Community Service Order together with an 18 month Probation Order.  

Order made under the 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 sentence. 

Restraining Order made under Article 10(4) that the accused is subject for a period of 5 years from the date of sentence with the condition that the accused is prohibited from having any direct or indirect contact with the second victim. 

R. MacRae, Esq., Attorney General, for the Crown.

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced today with regard to two counts of unlawful sexual intercourse which took place on the night of 4^th to 5^th September, 2015, when you were 17 years of age.  Your victims were both 15 years of age.  With regard to the first charge, the victim in question was your girlfriend, although you had not been together for very long at all, and there is no doubt that what took place between you was part of that ongoing relationship and was indeed expected by her.  With regard to your second victim, however, this appears to have had an element of opportunism about it in that the girl in question was very drunk indeed and there is no suggestion of an ongoing relationship.  Also we note that in connection with that offence you lied on a number of occasions about what had happened. 

2.        We understand the context of these offences, namely a party at your home in which alcohol was freely available, that you were intoxicated, as were indeed both of your victims.  It is difficult for us to view that intoxication as exculpatory in any way at all.  It is an aggravating feature.  We view any offence of unlawful sexual intercourse as serious but accept that by reason of the proximity of the ages between you and your victims the context in which the offences took place, and the fact that with regard to your first victim you were in a relationship with the young woman in question, this places your particular offending towards the lower end of seriousness for cases such as this, at least where the first victim is concerned.  It cannot be said that you were cooperative with the police with regard to the second offence nor that you have displayed any real remorse at all in connection with that second offending.  We view that matter as more serious because, as we have said, you were not at that time in a close personal relationship with the victim. 

3.        We note your guilty plea, which is of value in connection with the first offence, but you did not originally plead guilty to the second and, accordingly, your victim was put through the stress of believing that she might need to give evidence about what happened to her. 

4.        You have no previous convictions and we note the extremely difficult circumstances that you have faced personally in recent years and in particular around the time of this offending which was only two weeks after the death of your father.  We also note the other strong mitigation available to you not least of which is the supportive reference from the Grace Trust, which is exceptional in its terms, and speaks very well of you indeed.  We also note that at the time of your offending you were, and you remain, a young offender and accordingly the provisions of the Criminal Justice (Young Offenders)(Jersey) Law, 1994 apply. 

5.        We turn first to the orders that are sought under the Sex Offenders (Jersey) Law, 2010, and in our view the period of 5 years, as requested by the Crown, is an appropriate period before which you may apply to come off the register.  This indeed was not opposed by you through your counsel. 

6.        We also impose a Restrictive Order under Article 10 of that law, again for a period of 5 years, both periods to date from today's date, to the effect that you must not have any direct or indirect contact with the second victim in this matter. 

7.        We turn now to the matter of sentence.  With regard to the first count we think that by reason of the ongoing friendship, this makes this less serious, and we think that it is appropriate to meet it with a Probation Order of 18 months' duration.  With regard to the second count our view is different.  We repeat again the element of opportunism and carelessness and that there was no suggestion of a pre-existing relationship or friendship.  In all the circumstances of this case, however, including all the mitigation which we view as substantial, we think that a period of community service is appropriate and we think that it should be a lesser period than recommended by the Crown as an alternative.  You are directed to complete 120 hours' community service which is the equivalent of 6 months' imprisonment.  So that makes a total of 120 hours' Community Service Order together with an 18 month Probation Order. 

Authorities

Sex Offenders (Jersey) Law, 2010. 

AG-v-Kittleson [2011 JLR Note 8], [2011] JCA 052. 

AG-v-Dickinson [2005] JRC 135. 

AG-v-H [2016] JRC 142

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