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Jersey Unreported Judgments

You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Sousa [2017] JRC 124 (04 August 2017)
URL: http://www.bailii.org/je/cases/UR/2017/2017_124.html
Cite as: [2017] JRC 124

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Inferior Number Sentencing - indecent assault.

Before :

Sir William Bailhache, Bailiff, and Jurats Liston and Thomas.

The Attorney General

-v-

Amilcar Freitas De Jesus Escorcio Sousa

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Indecent assault (Count 2).

Age: 27.

Plea: Guilty.

Details of Offence:

The defendant and complainant were friends and had been in a brief sexual relationship a couple of years prior to the alleged offence. The complainant suffered a serious head injury after being hit by a car in 2011. As a result of his injuries he suffers from psychological and physiological problems, including personality change with behavioural and mood difficulties. Physically he has weakness down his right side, especially in his arm and hand, and a slight slurring of speech.

On Tuesday 6^th January, 2015, the defendant and the complainant went out drinking in town. During the evening, the men smoked two cannabis joints and after leaving town they purchased a bottle of wine and four cans of beer and went back to the defendant's accommodation.

Once there the complainant lay on the defendant's bed and fell asleep fully dressed. The defendant took several photographs of them whilst in the room, one of which was posted to his Facebook page. These photographs show that the defendant placed the complainant's hand on the defendant's crotch and the complainant's shirt and jeans were shown to be unbuttoned. In all of these images the complainant appears to be unconscious.

When the complainant woke up he reported that he was naked, face down, and with his bottom in the air. The defendant (in his basis of plea) only admits to stripping the complainant to his boxer shorts. The complainant got out of bed, dressed himself and then left the room and walked back home. The complainant reported the assault to a friend on 26^th January, 2015, and subsequently made a complaint to the Police.

A delay in the progress of this case arose because the issue of Fitness to Plead fell to be determined by the Inferior Number and following a finding that the defendant was not fit to plead on 18^th January, 2016, the defendant was detained at Brockfield House in the UK. Following completion of his treatment he returned to the Island on 21^st December, 2016, and the criminal proceedings continued.

Details of Mitigation:

Guilty plea, delay (no fault attributed to any party for this delay).

Previous Convictions:

One conviction for two offences dealt with before the Magistrate's Court in 2011.

Conclusions:

Count 2:

15 months' imprisonment (equivalent to time served on remand).

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 from the date of sentence.

Restraining Order sought from date of release from prison for a period of 5 years under Article 10(4) with the following conditions:-

(i) The defendant is prohibited from having any contact, direct or indirect, with the complainant;

(ii) The defendant is prohibited from approaching or following the complainant;

(iii) The defendant is prohibited from loitering within 50 metres of any premises known to him to be the home address of the complainant;

(iv) The defendant is prohibited from entering any part of the premises known to him to be the work address of the complainant or loitering within 50 metres thereof;

(v) Should the defendant see or come into contact with the complainant 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.

Recommendation for deportation sought.

Sentence and Observations of Court:

Count 2:

12 month Probation Order.

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 from the date of sentence.

No Restraining Order made.

No recommendation for deportation made.

C. R. Baglin, Esq., Crown Advocate.

Advocate H. B. Mistry for the Defendant.

JUDGMENT

THE BAILIFF:

1. You are here to be sentenced on one count of indecent assault in that you placed the complainant's hand on your crotch and you took photographs of this and you put them on Facebook. You subsequently undressed him. Throughout this he was not conscious, perhaps through drink. The complainant is a vulnerable person and has been adversely affected by the incident. You have also been charged, as your counsel has said, with sodomy, but your not guilty plea to that has been accepted by the Crown.

2. For reasons which are not material you have spent 321 days in custody and we take that into account. We also take into account your guilty plea and your lack of relevant convictions. In particular we take into account what the Crown has said that this offence was at the lower end of the scale and of course we have also had regard to the contents of the social enquiry report which concludes with the recommendation that the Court should impose a 12 month Probation Order to address the issues which have been identified in that report.

3. We agree that it is appropriate that you should have the benefit of a Probation Order and so you are placed on probation for 12 months for the offence of indecent assault.

4. Because you have committed that offence you are subject to the notification requirements under the Sex Offenders (Jersey) Law 2010 and you cannot apply to be released from those requirements until 5 years have passed from today's date. If you need to have some help on what that means in practice your counsel will tell you what that means.

5. It has been suggested that we impose a Restraining Order upon you. We do not see that that is appropriate at this stage but I want to give you this warning that if you were to be in touch with the complainant, and you will know what he has said about you, that if you do come into contact with him then it would be very sensible for you to stay away from him because if you do not do that, you may well find that harassment charges might come against you in the future. So you would be well-advised to stay away from him and the Probation Service will help you with ensuring that you tackle that issue as one of the issues which will be discussed with you while you are on probation.

6. The Court does not consider that the offence at the lower end of the scale, the offence of indecent assault, is such that the first limb of the Camacho-v-AG [2007] JLR 462 test is justified and therefore we do not make a recommendation for deportation. What you must be aware of is that it is a privilege for you to be in this island as a person who is not a British National and if you commit further offences then deportation is bound to be an issue which is raised again so you must bear that in mind for the future.

Authorities

Sex Offenders (Jersey) Law 2010.

Camacho-v-AG [2007] JLR 462.

AG-v-Cullen [2017] JRC 041B.

AG-v-Gomes [2013] JRC 007.

AG-v-Richards [2010] JRC 158.

AG-v-Hayman [2008] JRC 211.

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