Jersey Unreported Judgments

Superior Number Sentencing - incest and resisting arrest.

[2017]JRC093

Royal Court

(Samedi)

15 June 2017

Before     :

Sir William Bailhache., Bailiff, and Jurats Nicolle, Crill, Ramsden, Fisher, Morgan and Kerley.

The Attorney General

-v-

Y

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 28th April, 2017, following guilty pleas to the following charges:

1 count of:	Incest (Count 1).
1 count of:	Resisting arrest (Count 2).

Age:  25. 

Plea: Guilty. 

Details of Offence:

On 23^rd October, 2016, the defendant and victim were staying at a town address with other siblings.  The defendant and victim's father had been arrested two days earlier for a serious offence and in the early hours of the morning the victim had become upset and started crying.  The defendant put his arm around her to comfort her.  He then started to kiss her, placed his hand down her jogging bottoms, removed them from one leg, and then proceeded to have full sexual intercourse with her.  The victim froze but continued to cry.  Afterwards the defendant went to the toilet and when he came back told the victim to swear on their father's life that she would not tell anyone.  She agreed.  Days later she became concerned she might be pregnant and sent him a message asking if he had ejaculated.  He replied that he had not, and on her account was angry that she raised the subject as she had sworn not to say anything about it (Count 1). 

Sometime later she was asked about it by a friend and disclosed what had happened.  Matters were discussed within the family before the decision was taken to notify the Police.  As a result the Police attended the defendant's accommodation.  He was told he was being arrested on suspicion of underage sex and incest.  He responded by saying: "I am not having this shit."  He walked away and had to be restrained and taken to the floor, where he struggled for some time.  Officers said if he did not calm down they would need to use PAVA spray.  At this point he became compliant (Count 2). 

Details of Mitigation:

Guilty plea; cooperative with police in interview.

Previous Convictions:

13 convictions for 27 offences including unlawful sexual intercourse for which the defendant was sentenced by the Magistrate's Court.  The present offences placed him in breach of Magistrate's Court Orders. 

Conclusions:

Count 1:	Starting point 8 years' imprisonment.  5 years' imprisonment.
Count 2:	1 months' imprisonment, concurrent.

Breach of Orders: 3 month's imprisonment, consecutive, and discharge the previous orders of the Magistrate.

Total: 5 years and 3 months' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 8 years should elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence. 

Restraining orders sought under Article 10(4) of the Sex Offenders (Jersey) Law 2010 to commence from date of sentence with the following conditions that:

i.       that the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

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

Sentence and Observations of Court:

Count 1:	Starting point 7½ years imprisonment.  4½ years' imprisonment.
Count 2:	1 month's imprisonment, concurrent.

Breach of Orders: 3 months' imprisonment, consecutive, and discharge the previous orders of the Magistrate.

Total: 4 years and 9 months' imprisonment.

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 8 years should elapse before the defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence (15^th June, 2017). 

Restraining orders made under Article 10(4) of the Sex Offenders (Jersey) Law 2010 for a period of 8 years with the following conditions to commence from date of sentence that:

i.       that the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

ii.      that in circumstances where the defendant finds himself alone with any females under the age of 16, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

iii.      that the defendant shall produce to a police officer forthwith, on request for examination from time to time, any computer or device which may access the internet or any telephone or mobile phone or any device which can store images electronically which belongs to him or is in his possession, it being noted that such request may be made anywhere including by the police attending at the defendant's place of residence; and

iv.      that the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless:

a.             it has the capacity to retain and display the history of internet use and;

b.              the defendant ensures such history is not deleted. 

R. C. P. Pedley, Esq., Crown Advocate.

Advocate L. J. Glynn for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are here to be sentenced on two counts, the first is that of incest and the second is resisting arrest.  As a result of these offences you are in breach of the Magistrate's order on 22^nd July last year imposing a probation order and community service for unlawful sexual intercourse with a girl under the age of 16. 

2.        These offences are serious.  Incest with your half-sister at the age of 14 means that she could not consent to what you were doing.  That makes it the equivalent of rape, it is a serious offence.  We think that you knew that she was vulnerable because you yourself were vulnerable and you took advantage of that.  You knew that what you were doing was wrong.  On the other hand, as your counsel says, it was just one offence, there was no violence or threats, there was no grooming, no perverted sexual activity that went with it, no alcohol or drugs on her part as far as one can see and, although she is your half-sister, you had never lived together and were not brought up together; but she was still only 14.  When we look at the victim impact statement which she has signed, and you have read it, you realise what an impact what you did had on her.  It is obvious to us that there is a real risk of your re-offending.  Your counsel says you will do the work Dr Emsley recommends in prison, we think you should, we strongly recommend you should. 

3.        We are going to impose a sentence on Count 1 of 4½ years' imprisonment.  Although we do not have to fix a starting point we would have taken 7½ years as an appropriate starting point.  We sentence you on Count 2 to 1 month's imprisonment, concurrent, and in relation to the breach of the Magistrate's order of 22^nd July, 2016, the probation order and community service order is discharged and you are sentenced to 3 months' imprisonment, consecutive, which means that you will go to prison for 4 years and 9 months. 

4.        We turn next to the question of the notification requirements and the restraining orders.  The Court orders that the minimum period which must expire before you may apply to be released from the notification requirements under the Sex Offenders (Jersey) Law 2010 is 8 years from today.  Advocate Glynn, you will explain to your client what the effect of the notification requirements is. 

5.        Advocate Glynn, we have also considered and are minded to impose restraining orders that deal with internet access and the production of devices which can access the internet to the police on request.  It is really the ex-partner's comments was that she had seen him search for pornography on his phone using terms such as 'teenage rape' and 'family fun'.  It is not the issue whether they do or do not contain those images, it is the impact on your client and the way he thinks.  So we are going to impose restraining orders as follows and in each case they are to be in force for a period of 8 years from today:

(i)        that the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16.  He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

(ii)       in circumstances where the defendant finds himself alone with any females under the age of 16, accidentally or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

(iii)      the defendant shall produce to a police officer forthwith, on request for examination from time to time, any computer or device which may access the internet or any telephone or mobile phone or any device which can store images electronically which belongs to him or is in his possession, it being noted that such request may be made anywhere including by the police attending at the defendant's place of residence;

(iv)      that the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless it has the capacity to retain and display the history of internet use and the defendant ensures such history is not deleted. 

6.        Mr Y, your lawyer will explain the restraining orders to you but I must tell you that if you breach any of the restraining orders that also will be a criminal offence and you can be sent to prison for it. 

7.        For the reasons given you will go to prison for 4 years and 9 months. 

Authorities

Sex Offenders (Jersey) Law 2010.

K v AG and AG v F [2016] JCA 219. 

AG v E and F [2016] JRC 134. 

AG v M and N [2015] JRC 184. 

AG v Vincent [2013] JRC 203. 

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

Sentencing Council Sexual Offences Definitive Guidelines (extract).

Criminal Justice (Anonymity in Sexual Offence Case)(Jersey) Law 2002.