Jersey Unreported Judgments

Superior Number Sentencing - reasons for the sentence given on 27th April, 2018.

[2018]JRC151

Royal Court

(Samedi)

22 August 2018

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Olsen, Blampied, Sparrow, Christensen and Dulake

The Attorney General

-v-

P

Ms E. L. Hollywood, Crown Advocate.

Advocate F. L. Pinel for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 27^th April, 2018, the Defendant appeared before this Court to be sentenced for 20 counts of historic sexual abuse against his half-sister, his half-brother and his sister in a period that spanned some 10 years between 1978 and 1988.  The victims were all children at the time and, although older than his victims, so was, for the most part, the Defendant. 

2.        The victims were the Defendant's half-sister Complainant 1, his sister Complainant 2 and his half-brother Complainant 3.  The sexual abuse contained within the span of the Defendant's offending encompasses indecent assault, rape and sodomy. 

3.        With reasons reserved, we sentenced the Defendant as follows: 

(i)        Count 1 indecent assault on Complainant 1, starting point 6 years, sentence 2 years;

(ii)       Count 2 indecent assault on Complainant 1, starting point 6 years, sentence 2 years;

(iii)      Count 3 rape on Complainant 1, starting point 16 years, sentence 10 years;

(iv)      Count 4 rape of Complainant 1, starting point 16 years, sentence 10 years;

(v)       Count 5 rape of Complainant 1, starting point 16 years, sentence 10 years;

(vi)      Count 6 rape of Complainant 1, starting point 16 years, sentence 10 years;

(vii)     Count 7 rape of Complainant 1, starting point 16 years, sentence 10 years;

(viii)    Count 8 rape of Complainant 1, starting point 16 years, sentence 10 years;

(ix)      Count 9 rape of Complainant 1, starting point 16 years, sentence 12 years;

(x)       Count 10 rape of Complainant 1, starting point 16 years, sentence 12 years;

(xi)      Count 11 indecent assault of Complainant 2, starting point 6 years, sentence 2 years;

(xii)     Count 12 indecent assault of Complainant 2, starting point 6 years, sentence 2 years;

(xiii)    Count 13 indecent assault of Complainant 2, starting point 10 years, sentence 4 years;

(xiv)    Count 14 indecent assault of Complainant 2, starting point 10 years, sentence 4 years;

(xv)     Count 15 indecent assault of Complainant 3, starting point 6 years, sentence 2 years;

(xvi)    Count 16 indecent assault of Complainant 3, starting point 6 years, sentence 2 years;

(xvii)   Count 17 sodomy of Complainant 3, starting point of 16 years, sentence 8 years;

(xviii)  Count 18 sodomy of Complainant 3, starting point of 16 years, sentence 8 years;

(xix)   Count 19 sodomy of Complainant 3, starting point of 16 years, sentence 8 years;

(xx)    Count 20 sodomy of Complainant 3, starting point of 16 years, sentence 8 years;

All of the counts were concurrent making a total of 12 years imprisonment. 

The facts

4.        We do not need, in order to explain our reasons, to go into the full details of each of the counts.  The offending may be sufficiently detailed as follows. 

5.        The sexual abuse committed by the Defendant took place in the family home and began when he was only 10 years of age.  The first offence occurred when he indecently assaulted Complainant 3 whom he (subsequently) went on to sodomise and counts 15 to 20 relate to that abuse.  It began when Complainant 3 was 5 years of age and ended when he was 10. 

6.        During the period when he was sexually abusing Complainant 3, the Defendant between 1981 and 1982 also committed several indecent assaults on Complainant 2 who was aged 11 at the time.  Counts 11 to 14 relate to those assaults. 

7.        The Defendant's final victim, Complainant 1, who he initially indecently assaulted and then subsequently raped was aged between 8 to 14 and Counts 1 to 10 on the indictment relate to those assaults. 

8.        The Defendant stopped sexually abusing his siblings when he was aged 19 or 20.  At the time of the abuse none of the siblings knew that the others were being abused by the Defendant and it was only Complainant 1's initial disclosure to her mother in 1992 that resulted in disclosure by Complainant 2 and a police investigation.  Complainant 3 made no disclosure until many years later. 

9.        The indecent assaults against Complainant 1 involved, on one occasion, the Defendant putting his hand under her nightdress when they were in a bedroom together and touching her vagina and rubbing the area around her clitoris.  There was no penetration.  On another occasion, he pushed her up against the door of the bedroom and touched her over her clothing and between her legs. 

10.      When she was approximately 10 years of age the Defendant raped her.  He would have been 15 or 16 years old at the time.  Complainant 1 was in the bathroom getting ready to go to the gym club and when the Defendant entered the bathroom pulled her leotard and pants down and grabbed the back of her neck and then bent her over and penetrated her with his penis.  Other rapes followed which in general terms took place in Complainant 1's bedroom when at night the Defendant would enter the room and get into bed with her.  She described many rapes, the memories having "blurred into one".  When she was approximately 13 years of age (and the Defendant approximately 19 years of age) she began to fight back, and the Defendant's assaults, whilst not ending, became less frequent.  The Defendant continued to rape her on occasion even at the time when he was going out with a girlfriend, and he stopped doing so only when Complainant 1 began herself to go out with one of the Defendant's friends. 

11.      The first assault on Complainant 2 occurred around 1981 when she was approximately 11 years old and the Defendant was 12 or 13 years old.  He walked into her room when she was changing and he grabbed her breasts.  She pushed him away and recalls he had a silly grin on his face and she, whilst upset, put it down to the actions of her "stupid idiot brother".  Shortly thereafter the Defendant went into her room with a towel around his waist and once there he pulled the towel away exposing his penis to her.  He then went over and grabbed her breasts over her clothing.  On other occasions Complainant 2 was reading in bed when the Defendant went into her room, knelt by the bed and put his fingers inside her vagina.  She recalled that digital penetration happened on 5 or 6 occasions and always when she was reading in bed at night-time.  The sexual abuse ended when her growing anger made her more forceful and she threatened the Defendant with telling their mother.  

12.      Complainant 3 would sometimes get into the Defendant's bed because he was frightened of thunder and lightning.  He describes the Defendant on one such occasion cupping his penis and testicles.  On a subsequent occasion when Complainant 3 was about 6 or 7 years old and the Defendant 11 or 12, he felt the Defendant rubbing his, the Defendant's, penis between Complainant 3's buttocks.  Matters progressed to sodomy when Complainant 3 was 7 to 8 years old and the Defendant 12 to 13.  He describes again the Defendant beckoning him into his bed and that the Defendant put his penis inside him.  When that had finished, Complainant 3 got out of the Defendant's bed and back into his own bed and cried himself to sleep.  Complainant 3 recalls that he was sodomised on some three other occasions and during the last occasion he recalled the Defendant ejaculating.  He was able subsequently to resist the Defendant because Complainant 3 had grown in size and was stronger than he had been when the assaults had started. 

13.      All of the assaults described by the Defendant's siblings took place in an environment where none of them knew about the Defendant's actions against the others.  The Defendant at all other times behaved normally and there were suggestions that from time to time the Defendant would give his siblings sweets and sometimes money. 

14.      Matters did not come to light for many years.  It was Complainant 1 who first disclosed that she was being abused to a friend of hers in or around 1991 and thereafter to her boyfriend.  It was only in September 1992, however, that Complainant 1 informed her mother of the abuse.  After she had done so her mother then telephoned Complainant 2 who was at that point out of the Island, and asked if anything had happened to her.  Complainant 2 revealed that things had been done to her by the Defendant by saying "how did you know?"  Complainant 1 made her initial complaint to the police in September 1992.  After the phone call between Complainant 2 and her mother, Complainant 2 wrote a letter to her mother explaining what had happened to her and subsequently Complainant 2 made a statement to the police.  The first person Complainant 3 disclosed his sexual abuse to was his then girlfriend and subsequently disclosed it to Complainant 2 in 2014 during an email exchange.  It was only after a police investigation was re-opened in 2016 that Complainant 3 provided a statement to the police. 

15.      Following initial disclosures by Complainant 1 and Complainant 2 in 1992, the Defendant was interviewed by the police and he denied any of the matters put to him.  The investigation did not lead at that point to any prosecution for legal reasons.  However the police asked some years later, in 2016, whether or not Complainant 2 and Complainant 1 wished to pursue their complaints, the legal position having changed to make a prosecution more feasible. 

16.      The Defendant maintained his denial of the allegations in subsequent interviews and was convicted after a trial by a jury of the offences set out in the indictment.    

The effect

17.      We have read carefully the impact statements and the personal statements provided to us by the victims. 

18.      Complainant 1 tells us what the Defendant did to her has stayed with her to the current day and, as she says, it haunts her daily.  She would say that it had ruined her life.  It has given her difficulties with her relationships and she has struggled with depression.  She finds it hard to trust people.  She has had therapy and continues to do so.  She was, understandably, further greatly distressed by having to give evidence during trial.  We accept what she says about the lifelong effect that these offences have had on her. 

19.      A report by a chartered clinical psychologist prepared about Complainant 1 confirms that she has a history and current presentation consistent with a clinical level of mental health problems because of her experience of chronic childhood sex abuse.  She presents with post-traumatic stress symptomatology and traits of an emotionally unstable personality.  This, the report confirms, has had substantial and long term effects on her quality of life. 

20.      Complainant 2 describes the effects of the abuse on her as initially confusing and thereafter suffering from low self-esteem and low social worth.  She is afraid of people finding out what happened to her and whilst she has friends she avoids getting too close to them.  She described the problems it has caused in her relationships and even now there is an effect on her life in terms of her ability to trust other people. 

21.      Her assessment by a chartered clinical psychologist confirms that Complainant 2 experiences symptoms consistent with a diagnosis of post-traumatic stress disorder.  She has experienced a range of symptoms into her adult life as a result of the assaults that she suffered and continues to do so.

22.      Complainant 3 did not provide a victim personal statement because of his current health concerns.  He has substantial health challenges and when he gave evidence before the trial court he did so by video link from a hospital environment outside of the Island. 

23.      We nonetheless had the benefit of a report from a chartered clinical psychologist.  Complainant 3 described his inability after the abuse to approach women because it made him feel like he was being predatory.  During difficulties with his romantic relationships he sought counselling but did not feel able to reveal to the counsellor the abuse that he had suffered at the hands of his brother.  The psychological report suggested that Complainant 3 experiences very high levels of interpersonal distress and again the assessment is that he is suffering from post-traumatic stress disorder.  He is also assessed as having a history and current presentation consistent with a clinical level of mental health problems due to the impact of the sexual abuse of him in childhood.  In addition to the post-traumatic stress disorder he also presents with symptoms of a major depressive disorder. 

24.      We have not set out in full the psychological effects which are revealed in the reports but we have made some reference to them because in our view it is important to understand the profound and lifelong effect that this abuse has visited upon all of the defendants' victims.  In our assessment, they have each, and over a protracted period, suffered a significant reduction in the quality of their respective lives as a result of this abuse. 

The Defendant

25.      The Defendant has also been psychologically assessed.  He has maintained his denial of the offences of which he has been convicted but this does not necessarily suggest a significant risk of sexual recidivism.  He has no criminal convictions of substantial note and nothing since 1988. 

26.      The Defendant does not have very much by way of additional mitigation available to him.  He has not pleaded guilty and therefore his siblings, the victims, have endured a protracted and very distressing trial process leading to the Defendant's conviction.  He shows no remorse and indeed suggests that the victims have ganged up against him to manufacture their stories.  This was explored before the trial court and the jury clearly rejected that possibility. 

27.      An important consideration for us is, of course, the Defendant's youth at the time that he committed these offences.  He was a child and then a young man in the period between when the offending started and finished.   

Approach to sentence

28.      In the absence of exceptional circumstances a significant custodial sentence for sexual abuse is inevitable.  The removal of a child's innocence is a serious wrong that must be reflected in the sentence imposed by the court. 

29.      In its conclusions the Crown directed us to the sentencing council guidelines for similar offences in England and Wales.  These guidelines do not of course apply in Jersey but the Court has had regard to the factors set out in the guidelines as an aide to assessing the seriousness of such offences and the aggravating and mitigating factors. 

30.      In the case of AG-v-T [2017] JRC 169, the Royal Court stated at paragraph 35:-

"The position now is that the Court has started a process of review of sentencing levels imposed for sexual offences by reference to the Guidelines.  They were found to be of assistance in AG -v- K, and we found them of assistance in the case.  We have not considered the Guidelines for other kinds of sexual offence, but if they are found to be of assistance, then defendants can expect to be sentenced accordingly.  It should not be open to defendants in future cases involving sexual offences to advance the kind of arguments advanced in AG -v- K and in this case."

31.      The Crown moved its conclusion by reference to harm, culpability, aggravating and mitigating features in the following guidelines: 

(i)        Rape of a child under 13 (in relation to Counts 3 - 8 and 17 - 20);

(ii)       Rape (in relation to Counts 9 and 10);

(iii)      Assault by penetration of a child under 13 (in relation to Counts 13 and 14);

(iv)      Sexual assault of a child under 13 (in relation to Counts 1 - 2; 11 - 12 and 15 - 16); and

(v)       Sexual activity with a child family member. 

And moved for sentences accordingly.  In terms of category of offending the Crown identified 2B as correct for Complainant 2 and either 2B or 1B for Complainant 3 and Complainant 1 for the serious counts.  We agree.  

32.      The recommendations of the Crown were that all of the sentences should be concurrent.  We think that that is the correct approach in a case of this nature.  The Crown having identified starting points then went on to apply what it termed as a "Valler uplift" to the most serious offence.  This description is taken from the case of Valler -v- AG [2002] JLR 383 and is a case relating to the importation of substantial quantities of more than one kind of unlawful drug.  Because a concurrent sentence was moved for, it was, in accordance with that case, permissible to increase the starting point for the most serious offending to reflect the fact that there is more than one kind of drug being imported.  To do otherwise would be to disregard the criminality contained within the importation of the lesser drug.

33.      Whilst we are hesitant, in terms of terminology, to refer the circumstances of the instant case as meriting an "Valler uplift", we think that a similar approach is equally appropriate here, where the offending comprises a number of quite distinct types of activity, but nonetheless, in the light of totality, it is appropriate to make the sentences concurrent, there is a risk that in this case a sentence would not reflect the criminality of the fact that there are a number of victims and a number of types of offending.  In our view it is, to the extent that starting points are used, appropriate to adopt a higher starting point than would normally be merited for a single type of offence.  This is to our minds simply a mechanism for reaching a sentence which reflects the total criminality involved.

Youth of the offender

34.      In the AG-v-E and F [2015] JRC 134 the Superior Number gave guidance for sentencing an accused who was a young person at the time of the offending but an adult at the time of sentencing.  In it the Court said: 

"3.  There were two strands of authorities taking different views and the Court of Appeal in H came to a clear view as follows from the judgment of the Court by the then Lord Chief Justice, Lord Judge:-

           "47 (a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current....".

The Learned Lord Chief Justice then goes on to deal with the correct approach thereafter:-

           "(b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011, [which was the date of sentencing in that case] what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.  Similarly, if maximum sentences have been reduced, as in some instances, ... they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply. 

           (c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus.  Due allowance for the passage of time may be appropriate.  The date may have a considerable bearing on the offender's culpability.  If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision.  Similarly if the allegations had come to light many years earlier, and when confronted with then, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the Police, or had been investigated and not then pursued to trial, these too would be relevant features. 

           (d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision.  Simultaneously, equal care needs to be taken to assess the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it. 

           (e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public.  On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

           (g) Early admissions and a guilty plea are of particular importance in historic cases.  Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations.  It is greatly to his credit if he makes early admissions.  Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities.  Considerations like these provide the victim with vindication, often a feature of great importance to them. 

(4) That is the approach now taken in England and Wales and, in my judgment, if is the approach that should be taken here."      

35.      The Defendant was aged between 10 and 20 years of age when he committed the offences and the Children (Jersey) Law 1969 ("the Law") was the applicable law in force at the time.  Article 15 of that Law sets out restrictions on imprisonment in the following terms:-

"(1) No court shall impose imprisonment on a child under the age of fifteen years.

(2) No court shall impose imprisonment for a term exceeding six months on a child under the age of seventeen years." 

36.      36.    Article 13 of the Law sets out the provisions for "punishment for serious offences" provides:

"Where a child under the age of seventeen years is convicted of any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offender is punishable in the case of an adult, as may be specified in the sentence and, where such a sentence has been passed, the child so sentenced shall, during that period, be liable to be detained in such place and under such conditions as the Secretary of State may direct."

37.      This provision is mirrored by Article 5(4) of the Criminal Justice (Young Offenders)(Jersey) Law 1994 which was the relevant law applied in AG-v-E and F above. 

38.      It is clear that because of the range and seriousness of the offending only a term of imprisonment is appropriate.   

39.      As we have said above the offending started at a time when the Defendant was only 10 years of age although continued until he was 19 or 20.  It is not, therefore, in our view, appropriate to approach this Defendant when he was 10, as manifesting the same level of culpability as when he was 18.  We have accordingly taken the view, as indeed did the Crown, that it is appropriate where the offending took place when the Defendant was under 15 years of age that there is a significant deduction from the starting point.  The Crown put before us the case of AG-v-Z [2010] JRC 016 where a 15 year old accused being sentenced for robbery, indecent assault and rape had a 50% reduction due to his age.  We think that this reinforces the principle that we have set out above. 

40.      The defence argued before us that as many of the offences were committed when the Defendant was under 15 years of age he could not be imprisoned for them and for offences between 15 years and 17 years we are restricted to six months.  However this argument ignores the provision of Article 13 of the Law and the reality of dealing with an adult offender for whom only imprisonment is available.  We agree with the Crown that none of the other methods of dealing with offending is suitable in this case. 

41.      Turning to the question of the appropriate sentence, with regard to Complainant 1 this offending took place over an 8 year period progressing from indecent assaults to a rape in the bathroom and then multiple occasions of rape in her bedroom thereafter.  It is entirely clear that she has suffered very substantial harm as a result of this offending and we further note that there is the further aggravating feature of ejaculation and indeed the fact that the offences took place in Complainant 1's own bed where she should have felt absolutely safe. 

42.      The offending against Complainant 2 took place over a lesser period when she was 11 years of age and escalated from touching her breasts to digital penetration whilst she was in her bed.  Clearly she suffered harm and again there is the aggravating feature of the location of some of the offending which was in Complainant 2's own bed. 

43.      Similarly, with regard to Complainant 3 this offending took place in his bedroom and the abuse escalated over a 5 year period from indecent assault to sodomy.  We have made reference to the reports earlier in this judgment which show that Complainant 3 has suffered a very high level of harm.  There are further aggravating features such as ejaculation and as we have said the location of the offence. 

44.      We must however look at culpability as a whole in determining final sentence and, in our view, the starting points moved for by the Crown, and accordingly the overall sentence, are too high and do not sufficiently account for totality when considering the Defendant's characteristics and the age at which he committed the offences.

45.      The Defendant has faced challenges and we take these and the other mitigation into account.  

46.      However, it is equally our view that the nature of the offending, the fact that it was carried out in part when the Defendant was of more mature years, the fact that there were a number of victims and the very high measure of harm that has been done to them coupled with the prolonged effect that this offending has had on their lives, means that the Defendant must be sentenced to a substantial period of imprisonment.  As we have said, we think it appropriate to apply an uplift analogous to that in the case of Valler. 

47.      Accordingly, we imposed the sentences set out at paragraph 3 above. 

48.      We also made orders under the Sex Offenders (Jersey) Law and under the Crime Disorderly Conduct and Harassment (Jersey) Law 2008, the former reducing the Crown's assessment of the appropriate period to 10 years from 15 years and in the latter for a period of 5 years as set out in the order of the Court.

Authorities

AG-v-T [2017] JRC 169. 

Valler -v- AG [2002] JLR 383. 

AG-v-E and F [2015] JRC 134. 

Children (Jersey) Law 1969. 

Criminal Justice (Young Offenders)(Jersey) Law 1994

AG-v-Z [2010] JRC 016. 

Sex Offenders (Jersey) Law. 

Crime Disorderly Conduct and Harassment (Jersey) Law 2008.