Jersey Unreported Judgments

Superior Number Sentencing - indecent assault - procuring an act of gross indecency.

[2017]JRC041A

Royal Court

(Samedi)

15 March 2017

Before     :

Sir Michael Birt, Commissioner., and Jurats Olsen, Fisher, Morgan, Grime, Crill and Pitman.

The Attorney General

-v-

Christopher Roy Bacon

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial on 25^th November, 2016 on the following charges:

7 counts of:	Indecent assault (Counts 1, 2, 3, 4, 5, 6, and 7).
1 count of:	Procuring an act of gross indecency (Count 8).

Age:  74.

Plea: Not guilty.

Details of Offence:

The defendant was Head of the Music Department at a school between 1978 and 1985. The offences were committed against some of the pupils. 

Counts 1 - 3

Between 1979 and 1980 three pupils (Victims A, B and C) then aged between 12 and 15 years old, were stopped by the defendant as they walked past his classroom.  The defendant searched the boys' bags and accused them of drinking alcohol.  He told the boys that they could either report to the Headmaster or instead see him on Monday after school.  The boys chose to meet with the defendant instead. 

Count 1: Victim A

The three boys subsequently attended on the defendant in the music block.  Each boy went into the defendant's classroom separately.  Victim A went first.  The defendant told him to bend over a table.  Victim A thought that he was about to be caned.  The defendant instructed Victim A to take his trousers down.  Victim A did so and whilst he was bent over the table with his trousers down (but his underpants up) the defendant stroked his hand over Victim A's bottom in a wiping motion, before sliding it between Victim A's legs.  The defendant's hand then cupped Victim A's genitals, before moving back in a stroking motion onto Victim A's bottom.  During this indecent assault the defendant's hand was outside Victim A's underpants.  Victim A said that the incident lasted around one minute, although it seemed to "last forever". 

Count 2: Victim B

When Victim B entered the music room, he too was alone with the defendant.  The defendant told Victim B that he had three choices: 10 strikes on the bottom with a plimsoll with his trousers up, five strikes with his trousers down, or one strike with his trousers and underpants down.  Victim B felt uncomfortable with these options and knew that taking his trousers and pants down would simply "not have been acceptable".  Victim B therefore elected to have five strikes with just his trousers down, and the defendant administered the same. 

Count 3: Victim C

Victim C then entered the room and was also alone with the defendant.  He recalled being given 10 whacks with a slipper on his bottom.  His trousers were up at the time. 

Count 4: Victim D

Victim D attended the school between 1979 and 1983.  When he was 11 or 12 years old, he forgot to take his swimming kit to school.  As the defendant was known to Victim D 's family and lived close to them, Victim D asked the defendant for a lift home to collect his swimming kit.  The defendant agreed.  Whilst driving the defendant said to Victim D: "You're wasting my petrol, I'm going to have to whack you."  Victim D assumed that this was a joke.  Two or three days later, the defendant went to Victim D's French class and asked the teacher to excuse him.  Victim D followed the defendant to the music block and asked what was happening.  The defendant replied: "I told you I was going to whack you."  Victim D was scared and confused.  Once inside the music block the defendant directed Victim D into a sound-proofed practice room.  The defendant sat on a chair and told Victim D to stand in front of him.  He gave Victim D a choice: three strikes with his trousers down or six strikes with his trousers up.  Victim D refused to remove his trousers.  The defendant lent forward and tried to put his right hand inside the left front side of the waistband of Victim D's trousers.  Victim D pulled back and asked what the defendant was doing.  The defendant said he was checking for padding as Victim D may have books inside his trousers for protection.  Victim D described the experience as "frightening".  The defendant then put Victim D over his knee and struck him six times on the bottom.  Victim D still had his trousers up.  The defendant's hand remained on his bottom for a few seconds.  Victim D stated that "it didn't feel right."  When Victim D went home that evening he told his mother.  She was furious and she telephoned the head teacher to complain.  

Count 5: Victim E

Victim E attended the school from September 1977.  When Victim E was aged between 12 and 14 years old the defendant asked him to stay behind at the end of his usual music lesson.  Victim E recalls that this was because he had called the defendant "Crispy" behind his back.  They were alone in the music room.  The defendant closed the door to the room and wedged a chair under the door handle before sitting on it.  Victim E was "a bit scared" but stated that he was not afraid of being hit because he had been chastised many times by his mother or other teachers.  The defendant, whilst sitting on the chair, said words to the effect of: "pull your trousers and pants down and bend over my knees."  Victim E complied and recalled that the defendant then placed his open right hand onto Victim E's bare bottom.  Victim E stated that his hand lingered there "for longer than it needed to."  The defendant did this between two and four times.  Victim E then pulled his trousers and underpants up and was allowed to leave the room.  

The Crown case was that the defendant was not actually authorised to administer corporal punishment at the school, and that the defendant's actions during each of the incidents involving victims A to E were motivated by his desire to act out sexual fantasies involving "spanking".  

Victim F 1985 complaint - Counts 6 to 8

Victim F was a pupil at the school between September 1979 and July 1983.  The defendant gave Victim F regular music lessons alone.  On 7^th October, 1985, police officers attended the school to investigate the unrelated theft of a computer from the music block.  Whilst examining the scene, officers found graffiti with sexual overtones which concerned the defendant on one of the blackboards.  Subsequent enquiries revealed that the defendant had been linked with Victim F who, by that time, was no longer a pupil at the school. 

In October 1985 Victim F was interviewed.  He was by then 17 years old.  He told the Police that he had realised that he was gay at a young age.  He said that in or around February 1982 he went on a school band trip to Guernsey.  The defendant was the Band Master.  Victim F found himself sharing a room with the defendant.  Victim F was to sleep in the double bed and the defendant was to sleep in one of the two single beds in the room.  On the first night the defendant got into bed with Victim F, who had been drinking alcohol in a different room with his school friends beforehand.  Victim F tried, unsuccessfully, to make the defendant get out.  The defendant then made sexual advances towards Victim F (to which Victim F reluctantly gave in).  The two then proceeded to "fondle each others private parts."  Victim F said that he was too drunk to put up any resistance.  Victim F stated that this went on for an hour or so.  Victim F stated that he also consumed alcohol the following evening and he and the defendant "again spent the night together."  Victim F said that he was disgusted by what had happened. 

Victim F stated that between February 1982 and July 1983, the defendant continued to engage in a sexual relationship with him in Jersey.  On a number of occasions, after band meetings in the early evening, Victim F would be asked to help the defendant in the Music block.  No one else was present.  Victim F said that the defendant would lock the front door of the building and leave his keys in the door.  He said that the defendant always initiated the sexual activity and instructed him what to do.  Victim F stated that the defendant would masturbate him (Victim F).  Although he was reluctant to reciprocate, Victim F confirmed that this had also occurred.  Victim F stated that when the defendant masturbated him he ejaculated on occasion, and that the Defendant liked him to sit on his lap facing away from him so that he could masturbate him from behind by bringing his hand around.  Victim F also said that on occasion the defendant had oral sex with him, putting his (Victim F's penis) in his (the defendant's) mouth.  Victim F did not enjoy the abuse, and felt disgust. 

The defendant was arrested and interviewed in 1985.  At this time he admitted that he had been in a sexual relationship with Victim F while he was still a pupil.  At the time the defendant was simply cautioned at the Parish Hall.  Whilst he lost his job, no prosecution took place. 

Complaints to Police

In 2005 Victim A came forward to make a complaint against the defendant.  In light of the contents of his statement, the Police were able to make contact with Victims B and C.  The other victims also came forward.  The defendant was arrested on 11^th August, 2015, on suspicion of historic indecent assault.  At the time of his arrest a laptop and numerous mobile telephones were seized which were found to contain a large amount of legal homosexual adult pornography, a significant proportion of which depicted the spanking of young adults posed in school environments such as classrooms and gymnasia.  

Throughout the investigation, the defendant denied guilt.  He was ultimately convicted after an assize trial where he defended himself.  The Crown was granted leave to prosecute the offences involving Victim F.  At trial the defendant cross-examined the victims in person.  The Probation Officer referred to this as amounting to "secondary victimisation" and several of the victims found this extremely harrowing.  He continued to deny guilt right up until the third interview with Probation, when he simply stated that he "might have done something but as it's so long ago, I can't remember very clearly". 

Aggravating factors

The defendant abused his position of trust as a teacher, and used his victims in order to act out his spanking fantasies and to gain sexual gratification.  The defendant ensured that each victim was alone with him when the abuse took place.  The Victims were aged between 12 and 15 whereas the defendant was aged between 37 and 41.  There was an introduction to oral sex in respect of Victim F.  The offences in Counts 7 to 8 had the additional aggravating feature that the defendant had committed earlier sexual offences against Victim F.  The offending occurred over a 2 year period and the abuse resulted in grave psychological harm to two of the victims.  

The defendant was assessed as being at moderate risk of committing further sexual offences, based on various factors including his enduring association with other sex offenders, the planned nature of his offending, and number and range of victims, and the breach of trust. 

Details of Mitigation:

No relevant previous convictions.

Previous Convictions:

None.

Conclusions:

Count 1:	2 years' imprisonment.
Count 2:	12 months' imprisonment, concurrent to Count 1 but consecutive to Counts 6 to 8.
Count 3:	9 months' imprisonment, concurrent to Counts 1 and 2 but consecutive to Counts 6 to 8.
Count 4:	15 months' imprisonment, concurrent to Counts 1, 2 and 3 but consecutive to Counts 6 to 8.
Count 5:	15 months' imprisonment, concurrent to Counts 1, 2, 3 and 4 but consecutive to Counts 6 to 8.
Count 6:	3 years' imprisonment, concurrent to Count 7.
Count 7:	3 years' imprisonment, concurrent to Count 6.
Count 8:	3½ years' imprisonment, concurrent to Counts 6 and 7, but consecutive to Count 1.

Total: 5½ 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 sentence.

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

i)              The defendant must have the permission of the Police Offender Management Unit with regards as to where he resides, where he works and in relation to his involvement with any groups of organisations that can be attended or engaged in by children under the age of 16 years;

ii)             That the defendant is prohibited from being alone with any child he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult in a supervisory position, over the age of 21 years who has been agreed suitable in advance by the Police Offender Management Unit; and

iii)            That in circumstances where the defendant finds himself alone with any child under the age of 16 years, either accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible.

And furthermore, order sought in relation to Victim F pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended by the Telecommunications (Amendment No 3) and the Crime (Miscellaneous Provisions)(Jersey) Law 2016.  For an indeterminate period. 

The Crown invited the Court to consider whether it was appropriate to make any Compensation orders in relation to the victims. 

The Crown also sought a contribution of £3,000 towards its costs but invited the Court to give priority to the payment of any compensation. 

Sentence and Observations of Court:

Count 1:	2 years' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	9 months' imprisonment, concurrent
Count 4:	15 months' imprisonment, concurrent
Count 5:	18 months' imprisonment, concurrent.
Count 6:	3½ years' imprisonment, concurrent to Counts 7 and 8 but consecutive to Counts 1 to 5.
Count 7:	3½ years' imprisonment, concurrent to Counts 6 and 8 but consecutive to Counts 1 to 5.
Count 8:	3½ years' imprisonment, concurrent to Counts 6 and 7 but consecutive to Counts 1 to 5.

Total: 5½ years' imprisonment. 

Order made 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 sentence.

Restraining Order made for a period of 10 years to commence from the date of sentence under Article 10(4) with the following conditions:

a)     The defendant must have the permission of the Police Offender Management Unit with regards as to where he works and in relation to his involvement with any groups of organisations that can be attended or engaged in by children under the age of 16 years;

b)     That the defendant is prohibited from being alone with any child he knows or believes to be under the age of 16 years.  He shall be considered to be alone if there is not present an adult in a supervisory position, over the age of 21 years who has been agreed suitable in advance by the Police Offender Management Unit; and

c)     That in circumstances where the defendant finds himself alone with any child under the age of 16 years, either accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible.

And furthermore, order sought in relation to Victim F pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended by the Telecommunications (Amendment No 3) and the Crime (Miscellaneous Provisions)(Jersey) Law 2016. For an indeterminate period.

i.      The defendant is prohibited from having any contact, direct or indirect, with Victim F;

ii.     The defendant is prohibited from approaching or following Victim F;

iii.    The defendant is prohibited from loitering within 50 metres of any premises known to him to be the home address of Victim F;

iv.    The defendant is prohibited from entering any part of the premises known to him to be the work address of Victim F or loitering within 50 metres thereof; and

v.     Should the defendant see or come into contact with Victim F in any public or private place he must take immediate action to avoid any breach of this Order.

Any breach of this Order shall be an offence for which the defendant will be liable to imprisonment for up to 2 years and to a fine.

No order for compensation or costs made.

C. M. M. Yates, Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE commissioner:

1.        Mr Bacon, you were a teacher and these boys, who were aged between 12 and 15, were entrusted into your care.  You committed a gross betrayal of that trust by assaulting them as you did.  The assaults in Counts 6 to 8 were the most serious and they involved oral sex by you on the boy and procuring mutual masturbation.  The other five assaults took place in the context of corporal punishment; it is clear that you have a spanking fetish and the spanking was undertaken to satisfy that fetish rather than for any proper disciplinary reason. 

2.        The psychological reports suggest that two of your victims in particular have been significantly affected by what you did to them.  Furthermore, despite your admission in 1985 concerning the conduct charge in Counts 6 to 8, you pleaded not guilty to all the charges and you made your victims come to court and relive what had happened to them.  They also had to face being questioned by you personally which must have been an additional stressful factor, although it is right to say that you did not attempt to bully or harass them during that process.  However, by your decision to plead not guilty you have lost the reduction of up to one-third which is normally given to those who plead guilty, and is almost invariably given in cases of sexual assault because of the particular distress which can be caused to people who have to speak of such intimate matters in open court. 

3.        We have been referred to a number of cases.  No two cases are alike and one has to be careful about drawing comparisons, but we think that the most similar case that we have been referred to is the case of AG-v-Dykes 1999/72 and 1999/126 but in that case his victims were older, all being 16 to 17.  He pleaded guilty and was sentenced to 4 years' imprisonment which would equate to 6 years on a not guilty plea. 

4.        Now Advocate Steenson has spoken most eloquently if I may say so on your behalf.  He has emphasised that you have committed no offences since 1985, that is over thirty years ago and that the offences were committed at a time of some turmoil in your private life.  He has referred, of course, to your age of 74 and the fact that at that age you will have difficulty in starting over again once you are released.  He has also said on your behalf that you have, albeit at the eleventh hour, accepted what you have done.  He refers to what you said to the probation officer in a passing remark and to the fact that you have abandoned your appeal.  Well it may be correct that you have now accepted it, it is hard to tell. 

5.        Turning first to the orders that are asked for, we do grant the notification requirement and order that it is 10 years before you can apply to come off it.  As to the restraining orders under Article 10 of the Sex Offenders (Jersey) Law 2010 we make an order in the terms requested by the Crown at paragraph 43 except that we delete the requirement that you get permission as to where you should reside so that words "where he resides" are deleted in paragraph (a) but otherwise we grant that as requested.  Similarly we make a restraining order under the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 as requested at tab 15 of the bundle although we insert the word "with" in paragraph 1 and we note that you do not oppose the making of any of these orders.  

6.        Coming back to the sentence, perhaps the most powerful point relied upon by Advocate Steenson is the fact that you were cautioned back in 1985 for the offences which are contained at Counts 6 to 8.  He asserts with considerable justification that you were entitled to think that matters had been dealt with; it was after all a decision taken by the Attorney General himself.  He points out that if you had been prosecuted then and sentenced to a prison sentence, you could have had the opportunity of starting your life again at an earlier age rather than now having to do it at your current age.  This Court accepts that it was quite wrong to proceed by way of caution in 1985 even doing our best to judge matters by the standards of the time, but for the reasons set out in the earlier judgment of this Court, it was not an abuse of process now to prosecute you for those offences because you did not at the time admit to the other offences which you would have known about but the prosecution did not. 

7.        Nevertheless, we agree that a reduction should be made from the sentence which would otherwise be passed because of the fact of the caution.  People are entitled to place reliance on a decision taken by the Attorney General and to think that perhaps they can get on with their lives.  So the sentence is going to be less than it would have been had you not been cautioned, but nevertheless we think that the allowance which has been made by the Crown is sufficient.  In our judgment the offences which you committed, given the young age of the victims, and the fact that in relation to the victim on Counts 6 to 8, the offending was repeated with the same victim, were more serious than those of Dykes.  So we think overall that the Crown has allowed sufficient mitigation for your personal circumstances and for the caution and accordingly subject to minor adjustment of the individual sentences, we are going to grant the conclusions. 

8.        On Count 1; 2 years' imprisonment, on Count 2; 12 months' imprisonment, on Count 3; 9 months' imprisonment, on Count 4; 15 months' imprisonment, on Count 5; 18 months' imprisonment, we are increasing that because that was more serious we think because of the fact that the victim had taken his trousers and underpants down at your request.  As to Counts 6 and 7 we fail to understand why there are lesser sentences moved for by the Crown on those because it is one of those which includes the fellatio which is regarded as particularly serious; so we pass 3½ years' imprisonment on each of Counts 6, 7 and 8, all the sentences on Counts 1 to 5 concurrent, Counts 6 to 8, concurrent with each other, but consecutive to Counts 1 to 5.  We think consecutive sentences are proper in this case because the offending on Counts 6 to 8 was separate and was more serious, and we think that we have to have regard to the overall totality.  We think that the total sentence for your offending should be as moved for by the Crown, namely 5½ years' imprisonment. 

Authorities

AG-v-Dykes 1999/72.

Dykes-v-AG 1999/126.

Sex Offenders (Jersey) Law 2010.

Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008.

K v AG [2016] JCA 219.

AG v Hayman [2008] JRC 211.

AG v Hanby 2002/66.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey 3rd Edition.

English Sentencing Guidelines Council's Definitive Guideline for Sexual Offences.