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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Facchino [2018] JRC 186 (05 October 2018)
URL: http://www.bailii.org/je/cases/UR/2018/2018_186.html
Cite as: [2018] JRC 186
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Inferior Number Sentencing - attempting to meet a child following sexual grooming.
|
Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Crill and Thomas. |
The Attorney General
-v-
Stephen Edward Facchino
Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:
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1 count of: |
Attempting to meet a child following sexual grooming, contrary to Article 2(1) of the Sexual Offences (Jersey) Law 2007. |
Age: 33.
Plea: Guilty.
Details of Offence:
A member of the public created a profile of a 13 year old boy on the adult dating site Grindr with the intention of finding men with a sexual interest in male children. The defendant had a profile on the site and after making initial contact with the fictitious boy, 'James', the defendant was told he was 13 years old, attended school, and lived with his mum. The defendant continued chatting to James and quickly began discussing a variety of sexual activities and enquiring into James' sexual knowledge. The defendant throughout the conversations remained under the impression that he was speaking with a 13 year old boy. Two topless photographs of the defendant were exchanged with the boy and arrangements were made for the defendant to meet James at his home address the next evening.
The defendant continued to message the boy throughout the day before the meeting. The Police were notified and the defendant was arrested on arrival at the meeting point.
Details of Mitigation:
Guilty plea.
Previous Convictions:
Relevant previous conviction for possession of indecent images and publishing obscene literature.
Conclusions:
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Count 1: |
Two years' imprisonment. |
That the existing notification order be discharged and replaced with one which would remain in force for a minimum of five years before the defendant can apply to be removed from the register.
Restraining orders sought to commence from date of sentence for a period of 10 years under Article 10(4) in the following terms:
1. That the defendant be prohibited from:-
(i) Living in the same household as any person under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police;
(ii) Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any male child he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010;
(iii) Being alone with any male child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010.
2. That the defendant be prohibited from:-
(i) 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.
(b) The defendant ensures that such history is not deleted; and
(c) That he register the device with the Offender Management Unit of the States of Jersey Police.
3. That in circumstances where the defendant finds himself in contact or alone with a male child under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible.
4. That the defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders, and he must allow officers entry to any premises he occupies or is in control of for the purposes of searching for relevant devices.
Sentence and Observations of Court:
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Count 1: |
18 months' imprisonment. |
Order made that the existing notification order be discharged and replaced with one which would remain in force for a minimum of five years before he can apply to be removed from the register.
Restrictive orders made in the following terms from the date of sentence for a period of ten years under Article 10(4):
1. That the defendant be prohibited from:-
(i) Living in the same household as any person under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police.
(ii) Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any male child he knows or believes to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010.
(iii) Being alone with any male child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult present who is over the age of 21, who is aware of the accused's convictions, and who does not have a conviction which would render him/her liable to notification under the Sex Offenders (Jersey) Law 2010.
2. That the defendant be prohibited from:-
(i) 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.
(b) The defendant ensures that such history is not deleted; and
(c) That he register the device with the Offender Management Unit of the States of Jersey Police.
3. That in circumstances where the defendant finds himself in contact or alone with a male child under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible.
4. That the defendant cannot refuse access to police officers who are monitoring or checking on his restraining orders, and he must allow officers entry to any premises he occupies or is in control of for the purposes of searching for relevant devices.
R. C. P. Pedley, Crown Advocate.
Advocate S. E. A. Dale for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. You are to be sentenced with regard of one Count of attempting to meet a child following sexual grooming. You tried to meet a child who you believed to be a 13 year old boy named James after meeting him on an online dating app. You exchanged communications with him over a relatively short period offering to become his boyfriend and explaining to him various sexual acts and practices of which he professed to be ignorant. Of course the boy was fictitious this was a sting operation.
2. We have been referred to cases dealing with how a court should view a sting operation but we do not think that the cases reflect any difference in approach between the Courts of Jersey and the Courts of the United Kingdom.
3. As the Court said in Attorney General v W [2016] JRC 235, a case which itself involved a sting operation, "whilst no child was put at risk or was ever going to be assaulted and we must view the sentence in that light, the offence is a serious one", and the Court went on to say that generally it would be met with a sentence of custody.
4. You have a relevant previous conviction. You were sentenced to six months imprisonment but suspended for publishing obscene literature and possession of indecent images. Although this was some time ago, it took place in 2007, the current offence seems to us to be an escalation of both your interest and your activities in connection with under-aged boys.
5. You have of course some benefit of a guilty plea although, as the Crown has said, this may be seen as almost inevitable given the nature of the messages that you sent to the fictitious James.
6. We accept that you have now acknowledged your sexual interest in 13 year old boys and we hope very much that this is a step forward on a road to addressing this interest and that there will be no further offending. However, you are assessed as being at a high risk of recidivism and accordingly we must take that into account as well.
7. We note your expressions of remorse through counsel and we note that you now say that you are motivated to change. However, we also note that you are an untreated sex offender having not responded in the past to the various opportunities available to you to address this kind of offending.
8. We deal first with the notification requirements and we discharge the existing order and replace it with one of five year duration as requested by the Crown and of course not opposed by you.
9. With regard to the restrictions, again the restrictions are slightly amended and you do oppose them. We therefore impose them. You are prohibited from:-
(i) Living in the same household as any person under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police.
(ii) Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any male child you know or believe to be under 16, unless there is a parent, guardian or responsible adult present who is over the age of 21, who is aware of your convictions, and who does not have a conviction which would render him or her liable to notification under the Sex Offenders (Jersey) Law 2010.
(iii) Being alone with any male child under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent or guardian or responsible adult present who is over the age of 21, who is aware of your convictions, and who does not have a conviction which would render him or her liable to notification under the Sex Offenders (Jersey) Law 2010.
(iv) Owning or having in your 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.
(b) You ensure that no such history is deleted; and
(c) That you register the devise with the Offender Management Unit, States of Jersey Police.
(v) That in circumstances where you find yourself in contact or alone with a male child under the age of 16 you have a positive duty to remove yourself from that situation as soon as is reasonably possible and lastly.
(vi) That you cannot refuse access to Police Officers who are monitoring or checking on your Restraining Orders and must allow officers entry to any premises you occupy or you are in control of for the purposes of searching for relevant devices.
10. In our view, the period that the Crown has asked for, and it is not opposed, of 10 years for the duration of this restriction is appropriate, however we note that at the end of the 5 year period you are in a position to apply to the Court to be removed from the notification requirements and if it is appropriate at that time you can apply to be released from the restrictions at the same time. We are not, however suggesting what the outcome of any such application will be, merely informing you of the possibility that is available to you which would be considered on its merits at the time. As of now the restrictions are for a 10 year duration.
11. We turn now to the matter of sentence. The simple fact is that you discovered someone who you believed to be an inexperienced school child on a dating app. and you arranged to meet him after explaining a range of sexual activities to him. We can only characterise this as highly predatory behaviour. Custody is of course inevitable, and we have in assessing the correct sentence have had some regard to the various factors set out in the English Sentencing Guidelines, although have not, of course found ourselves to be bound by the levels of sentence they then impose or indeed their assessment of offending into certain categories.
12. Had we been doing so, we would have viewed the correct placing within the Guidelines as Category 2. We believe that we can make a somewhat greater allowance for mitigating circumstances as explained to us by your counsel, than has been allowed for by the Crown and, of course, we pay regard to the sentencing levels that have been applied by this Court in the past.
13. In our view the correct sentence is 18 months' imprisonment and you are so sentenced.
Authorities
Sexual Offenders (Jersey) Law 2010
AG v W [2016] JRC 235
Attorney General v D [2018] JRC 158
R v Solanki [2017] EWCA Crim 1282
R v Jones [2017] EWCA Crim 1753
R v Abdeen [2018] EWCA Crim 1227
English Sentencing Guidelines.