Jersey Unreported Judgments

Superior Number Sentencing - indecent assault.

[2017]JRC041B

Royal Court

(Samedi)

15 March 2017

Before     :

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

The Attorney General

-v-

Fergus Gerard Cullen

Sentencing by the Superior Number of the Royal Court, following conviction at Assize trial on 18^th January, 2017 on the following charges:

4 counts of:

Indecent assault (Counts 1, 2, 3 and 4).

Age:  48.

Plea: Not guilty.

Details of Offence:

Events of 2010

Victim 1 met the defendant when he started work on a building site at Harve Des Pas on 18^th March, 2010.  Whilst working on the site the defendant told Victim 1 that he knew details about his personal life and commented "apparently you are hung like a horse".  Victim 1 thought this was just banter and laughed it off.  However during the day the defendant made further comments about the size of Victim 1's penis.  At the end of the day the defendant and Victim 1 went to the Don Inn for a drink when they left the defendant suggested they walk together as they lived in the same direction.  Victim 1 mentioned that he liked Irish coffee, the defendant said he was famous for them and invited Victim 1 back to his flat.  Once inside the flat the defendant put on some Irish music, removed his shirt and showed Victim 1 a tattoo on his arm.  On replacing his shirt the defendant nudged Victim 1, stared at his groin and said "I'm intrigued by the size of it".  Victim 1 went to the bathroom and whilst he was urinating the defendant opened the door and walked in and tried to look over Victim 1's shoulder.  The defendant commented "that's big you should be proud of that".  The defendant kept asking to see Victim 1's penis.  The defendant then got out a tape measure extended it and asked Victim 1 to tell him the size of his penis.  The defendant then got his penis out and started to play with it and he told Victim 1 "get your penis out and we can measure it".  The defendant then prodded Victim 1's penis two or three times through Victim 1's clothes.  Victim 1 said "I'm not into all this" stood up and ran out of the flat (Count 1). 

During the afternoon of the following day, Friday 19^th March, 2010, the defendant was tasked with teaching Victim 1 how to mix cement, they were alone.  When Victim 1 adjusted his shorts the defendant told him to "stop playing with that thing."  The defendant then used the back of his hand to tap Victim 1's penis twice before he cupped his hand around Victim 1's penis and testicles.  Victim 1 froze and the assault was over quickly (Count 2). 

There was no further contact between the men until the end of the working day.  Victim 1 went to a public house in Havre des Pas with his work colleagues and later the defendant joined them.  When Victim 1 mentioned the Irish Coffees to the defendant he told him not to tell anyone as it was their little secret. 

On Monday 22^nd March, 2010, whilst at work Victim 1 went to collect some cement.  The defendant was by the cement mixer and when Victim 1 approached he saw he defendant start to "play" with himself.  The defendant then referred to the tea room on site and called it "the wanking room" and promised to show it to Victim 1 later.  Victim 1 tried to avoid the defendant for the remainder of the day.  However there was a further encounter when the defendant urinated in front of Victim 1.  

On Tuesday 23^rd March, 2010, the defendant approached Victim 1 whilst at work and started to pretend to masturbate to the rear of Victim 1 whilst he was bending over working.  The defendant made some lewd comments whilst engaging in this act.  As soon as the defendant left Victim 1 collected his belongings and left the site.  

When giving evidence before the Assize Court Victim 1 described feeling "disgusted, humiliated and victimised". 

Events of 2015

On the 7^th June, 2015, Victim 2 went out for the evening with two friends.  They visited various locations until ending their evening at the Havana Club.  Victim 2 left the Havana Club at approximately 02:30 hours on the 8^th June, 2015.  Whilst he was walking down Hill Street he saw the defendant on Church Street.  He knew the defendant because he was a customer at the Mechanics Institute where Victim 2 worked as a barman.  He had known the defendant for about a year but had never socialised with him.  Victim 2 and the defendant struck up a conversation.  The men discussed the death of a mutual friend.  The defendant invited Victim 2 back to his place for a coffee.  On arrival at the defendant's flat Victim 2 sat down on a two seater sofa in the sitting room.  The defendant offered Victim 2 some wine and poured two glasses. 

The defendant then sat down next to Victim 2, although there was another sofa in the room.  As the sofa was small the defendant was in bodily contact with Victim 2 who tried to shuffle away.  The defendant started to tell Victim 2 about his sexual experiences in the flat including telling him about a girl that Victim 2 had been 'seeing' a few months earlier. 

About 30 minutes later the defendant undid his belt pulled down his jeans and boxer shorts and exposed his penis and started to "play with himself".  The defendant told Victim 2 that it was normal to do this in front of other men.  The defendant stated that he had a "little black book" in which he recorded the sizes of penises of other men and repeatedly told Victim 2 to get his penis out to prove how big it was.  Victim 2 told the defendant that he was feeling uncomfortable and the defendant put on some heterosexual porn.  In an attempt to get the defendant to "shut up" Victim 2 got his penis out.  The defendant grabbed Victim 2's penis and Victim 2 pulled his trousers up straight away (Count 3). 

Victim 2 told the defendant that he did not feel comfortable and the defendant told him to calm down.  The defendant pulled up his trousers, moved to sit in another chair and began to play his guitar and sing.  Victim 2 stated that he was scared of the defendant because of his martial arts background. 

Victim 2 told the defendant he was going to go home, the defendant said it was late said he could stay at the flat.  Victim 2 asked to use the defendant's phone to call his friend but the defendant refused.  The defendant suggested going to the bedroom.  When Victim 2 stood up he felt disorientated and drunk and said that he "didn't have my wits about me."  The men made their way to the bedroom.  

Once in the bedroom the defendant undressed leaving his boxer shorts on.  Victim 2 removed only his upper clothing.   After the men had got into bed the defendant grabbed Victim 2 from the side and put his hand on his hip.  Victim 2 pushed the defendant away and told him to stop.  The defendant continued to grab Victim 2's legs, hips and thighs and Victim 2 pushed him away again and then passed out. 

Victim 2 woke up with his back to the wall facing the defendant who was holding onto his legs.  He felt his penis inside the defendant's mouth.  Victim 2 tried to punch down to stop the defendant.  The defendant told Victim 2 to calm down and explained he was giving him "a slurpy" and that he had done this with other people.  Victim 2 tried to push the defendant away and kick him but the defendant grabbed Victim 2 around the neck and Victim 2 passed out again (Count 4). 

When Victim 2 woke up he asked the defendant what time it was, the defendant told him it was now 10:30am.  Victim 2 could not remember what had happened the night before but stated that he was "feeling scared and didn't know what to do or say." 

Once dressed Victim 2 returned to the lounge and sat in the same place as before.  The defendant suggested going for breakfast.  Victim 2 was dazed and did not clearly remember the events of the night before, he did not know what to do so he agreed to go for breakfast.  They went to Rosie's Café in Market Street. 

During the walk to Rosie's café and during breakfast Victim 2 began to remember what had happened and after breakfast told the defendant he was going to walk home. The defendant insisted on walking with him.  When the two were about to part company the defendant said to Victim 2 "mum's the word". 

Details of Mitigation:

Previous excellent character and delay in the case. 

Previous Convictions:

Minor motoring convictions. 

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	12 months' imprisonment, concurrent.
Count 3:	15 months' imprisonment, concurrent.
Count 4:	3 years' imprisonment, concurrent to Count 3 but consecutive to Counts 1 and 2.

Total: 4 years' imprisonment. 

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 date of sentence. 

Restraining order sought pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended by the Telecommunications (Amendment No 3) and Crime (Miscellaneous Provisions)(Jersey) Law 2016 in the following terms:

1.     The defendant is prohibited from having any contact, direct or indirect, with Victim 2 for a 3 year period commencing on date of release from prison. 

Sentence and Observations of Court:

If not for the delay between the date of the defendant's interview in May 2015 and first appearance before the Magistrate's Court in May 2016 the Court would have granted the Crown's conclusions.  In light of this delay the Court felt able to reduce the Crown's Conclusions.

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

Total: 3 years and 9 months' 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 date of sentence. 

Restraining order made pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended by the Telecommunications (Amendment No 3) and Crime (Miscellaneous Provisions)(Jersey) Law 2016 in the following terms for a period of 6 years and 9 months from date of sentence (15^th March 2017):

1.     The defendant is prohibited from having any contact, direct or indirect, with Victim 2.

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. 

S. C. Thomas, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

JUDGMENT

THE commissioner:

1.        Mr Cullen you have been convicted of assaulting two young men.  In the case of Victim 1, who was 20 at the time, you met him on a building site and you invited him to your flat after drinking in a pub.  You displayed great interest in the size of his penis and got out your own together with a tape measure.  You then prodded the victim's penis with your tape measure over his clothing.  The victim refused to have anything to do with it and left.  However the next day at the building site you used the back of your hand to tap the victim's penis twice and cupped your hand around the victim's penis and testicles, again over his clothing.  It is clear nevertheless that the victim was upset by what you had done and by your sexual banter and he left the building site the next day and did not return to the job. 

2.        Victim 2 was 22 and you assaulted him some 5 years later in 2015.  Again you invited him to your flat and there was discussion about the size of penises.  Again you exposed your penis and you encouraged the victim to get his out too.  Eventually he did and you grabbed his penis causing him to pull up his trousers straight away, which is Count 3.  It is clear that the victim was extremely drunk and you offered him a bed for the night.  The victim accepted and he woke up in the middle of the night to find his penis in your mouth and that is the basis of Count 4. 

3.        It is clear from the victim impact statement and the psychological report on Victim 2 that your offending has affected them, particularly Victim 2.  Furthermore, there is no mitigation for a guilty plea because you pleaded not guilty and they both had to give evidence; it is clear that they found that process distressing. 

4.        Nevertheless Advocate Bell has spoken in mitigation on your behalf.  He has emphasised first of all quite properly your good character in the sense that, apart from two motoring offences which we completely ignore, you have no previous convictions of any sort.  And it goes further than that because it is quite clear that you have a positive good character.  We have read the many references from employers, from friends and of course from your family and a number of them are very powerful.  It is clear that in many ways you have much to offer.  The background report quotes one of your former employers saying that "is an extremely popular and valued member of our team with both his colleagues and our clients".  Thirdly we take into account, as Advocate Bell has urged, the delay.  You were interviewed in June 2015 in relation to Counts 3 and 4 but you were not charged until May 2016.  We have to say we have received no satisfactory reason for that delay other than the fact that further enquiries were in hand, but we cannot see that justifying a delay of one year.  There are however some aggravating features in terms of your use of alcohol to facilitate the offending and, as we say, the effect on Victim 2 in particular. 

5.        There appears to be no Jersey case exactly in point but the Crown has referred to the English case of R-v-Timmons [2012] EWCA Crim 3000 where the offending was in many ways remarkable similar to Counts 3 and 4 and the Court of Appeal there upheld a sentence of 4 years after a trial. 

6.        We consider first the question of orders.  We note you are subject to the notification requirements and we agree a period of 5 years before you can apply to come off those requirements. 

7.        We also make an order under the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008, as amended as per paragraph 1 of what we have been handed, namely that the defendant is prohibited from having contact, direct or indirect, with Victim 2 and we say that that will last 6 years and 9 months. 

8.        Coming back to sentence the Court, having considered what Advocate Bell has to say, and the case of Timmons and the other cases we have been referred to, has concluded that were it not for the question of delay we would have granted the conclusions.  But the fact is that you were kept in a state of uncertainty for nearly a year after interview before charges were brought and we take that into account to reduce the conclusions. 

9.        On Count 1 the sentence is 6 months' imprisonment, on Count 2; 9 months' imprisonment, both of those concurrent.  We feel that that is a better reflection of what you actually did in relation to those two counts than the conclusions moved for.  On Count 3; 12 months' imprisonment, Count 4; 3 years' imprisonment, those to be concurrent with each other but consecutive to Counts 1 and 2, making a total of 3 years and 9 months' imprisonment. 

Authorities

R-v-Timmons [2012] EWCA Crim 3000. 

AG-v-Boot 1995/235

AG-v-Ferreira 2002/172

AG-v-Hayman [2008] JRC 211

AG-v-Richards [2010] JRC 158

AG-v-De Sousa [2012] JRC 110

AG-v-Gomes [2013] JRC 007

AG-v-Gomes [2013] JRC 020

Sex Offenders (Jersey) Law 2010

Sexual Offences Definitive Guide - Causing a person to engage in sexual activity without consent