Jersey Unreported Judgments

Superior Number Sentencing - Indecent assault.

[2019]JRC173

Royal Court

(Samedi)

9 September 2019

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Olsen, Thomas, Pitman, Averty, Hughes

The Attorney General

-v-

H

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 28^th June, 2019, following a guilty plea to the following charges:

1 count of:

Indecent Assault.  (Count 1).

Age:  52. 

Plea: Guilty. 

Details of Offence:

The indecent assault took place in 2004 when the complainant was 14 years old.  The defendant entered the complainant's bedroom, at night, while she was asleep in bed.  She woke up when she heard him enter her bedroom.  The defendant approached her, pulled back the covers so that her back was exposed, and then placed his hand inside her pyjama top and ran his hand up and down her back.  The defendant slowly moved his hand into the complainant's pyjama bottoms and underwear and grabbed her bottom.  The defendant then pulled down the complainant's pyjama bottoms and underwear below her bottom.  He then moved his hand round to her vagina and began rubbing her vagina with his fingers.  The defendant inserted his finger into her vagina twice.  The complainant did not react when the defendant was touching her.  However, when he digitally penetrated her vagina, she began moving so as to pretend that she was waking up.  The defendant took his finger out her vagina, pulled up her pyjama bottoms and left her bedroom.

The complainant decided not to tell her mother, but made an entry in her diary the following morning regarding the incident.  Her mother subsequently read the diary entry and asked the complainant if it was true.  The complainant confirmed that it was.  Her mother later confronted the defendant.

The complainant made a formal complaint to the police on the 12^th June, 2018, when she was 28 years old.

The defendant was arrested.  In interview, he admitted that the touching was sexual but he said that he only touched the complainant's vagina through her clothing and there was no penetration. He was charged and entered a plea on the same factual basis.  His basis of plea was not accepted by the Crown and a Newton Hearing was held before the Superior Number to determine the following two issues:

1) whether or not the defendant placed his hand inside the complainant's clothing and made skin-to-skin contact with her vagina; and

2) whether or not the defendant digitally penetrated the Complainant's vagina.

The Court determined that both acts alleged by the Crown were proven to the criminal standard and the defendant was therefore sentenced on the Crown's basis.

Aggravating Features

Severe psychological harm suffered by the complainant, gross abuse of trust, youth of the complainant, and location of the assault (i.e. in the complainant's bedroom where she was entitled to feel safe and secure).

Details of Mitigation:

Guilty plea, expressions of remorse, previous good character.

Previous Convictions:

The defendant has no previous convictions.

Conclusions:

Count 1:

7 years' imprisonment.

Restraining Order sought pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 for an indeterminate period from the date of sentence preventing the defendant from contacting the victim under the following terms:

That the defendant be prohibited from approaching or contacting, directly or indirectly, the victim, other than any contact which is inadvertent or unavoidable.

Pursuant to the Sex Offenders (Jersey) Law 2010, that the defendant be placed on the Sex Offenders' Register for period of 10 years before which he may seek to have the notification requirements dis-applied.

Sentence and Observations of Court:

Count 1:

5 years' imprisonment.

No Restraining Order imposed. 

Pursuant to the Sex Offenders (Jersey) Law 2010, that the defendant be placed on the Sex Offenders' Register for period of 5 years before which he may seek to have the notification requirements dis-applied

M. R. Maletroit Esq., Crown Advocate.

Advocate S. E. A. Dale for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced with regard to one count of indecent assault on a 14 year old girl.  The offence comprised the touching and digital penetration of the girl's vagina.  It took place 15 years ago. 

2.        The facts have been fully stated by the Crown.  Suffice it to say that this offending has serious aggravating features which include, firstly, a serious breach of trust.  You were in loco parentis, and trusted by the girl's mother.  And, secondly, this offending took place in the girl's bedroom which was a place where someone is entitled to feel safe and secure. 

3.        You do not have the full benefit of a guilty plea as your version of events was less serious and needed to be tested during the course of a Newton Hearing.  You were unsuccessful but your victim had to go through the distress of giving evidence before the Court which was traumatic for her.

4.        We note from the case of AG v Brewster 2001/003 in which the Court said:

"The removal of a child's innocence and the corruption of the trust which children naturally feel for adults are so serious that, other than in exceptional circumstances, they must be punished with imprisonment."

5.        And we also note the case of K v AG; AG v F [2016] JCA 219 in which at paragraph 54 the Court said:

"The comments which we have made in this judgment suggest that the Royal Court may wish to review upwards sentences for indecent assaults involving digital penetration of children in future cases."

6.        And, lastly, in AG v Dobrin and Ors [2019] JRC 097 the Bailiff said:

"We think it is clear from the decisions which have been taken in this Court and in the Court of Appeal over the last five years that it is correct by way of summary to say that sentencing in sexual cases involving children has been more severe than hitherto."

7.        We accept that that is the trend, and indeed appropriate for the way in in which the Court deals with matters of offending against children.  That notwithstanding, we must still be satisfied in the round that the sentence moved for by the Crown is an appropriate one and indeed reach our own independent assessment. 

8.        The victim impact report by a clinical psychologist, shows that the victim in this case was traumatised by this event.  She suffers from recurrent and intrusive recollections, and clearly when giving evidence at the Newton Hearing she found that to be a distressing experience.  She has, in the words of the professional assessment suffered severe psychological harm. 

9.        However, we note that this was a single occurrence.  It was opportunistic in nature, there is no evidence of grooming or preplanning or any sequence of events and it appears to us to be totally out of character on all that we have seen from the paperwork.  We also note that you are a man of otherwise good character and although there is a limit to the weight that we can and should place on character in offending of a sexual nature, this offence took place 15 years ago and your good character has shown itself in the intervening period.  In other words, we are prepared to give you credit for the character that you have shown since the offending took place.  You immediately expressed remorse.  You went to your doctor and were frank in the facts that you put to him and sought psychological assistance.  All of this speak to your good character.  And we accept that you did not report the matter to the police because that apparently was not a course that your victim or the victim's mother wished to take at the time.

10.      We note also that you are at a low risk of reoffending and we take into account your full letter of remorse which we accept to be genuine.  The references that have been provided on your behalf speak to the good character to which we have made reference, and speak extremely well of you indeed.  This single instance of offending is, to the Court, quite incomprehensible: none of the reports reveal an ongoing interest in young children for sexual purposes.

11.      The cases that we have reviewed in connection with the sentence that we are about to impose seem to us to be altogether of a different type.  We do not criticise the Crown for that because there are mercifully few cases involving digital penetration of children, other than those cases where such an offence is part of a sequence of offences also encompassing more serious offending.  They are different because they are of a different type, a different duration and a different cumulative severity, and taking matters in the round, we think the Conclusions moved for by the Crown are too high in these circumstances. 

12.      Accordingly, you are sentenced to 5 years' imprisonment with regard to the indecent assault.

13.      The period under the Sex Offenders (Jersey) Law 2010 before applying for your removal from the register is one of 5 years as well, from the date of sentence. 

14.      We turn now to consider the question of the restraining order.  We note that the practical imposition of such an order is not opposed by the Defence, but submissions are made to us as to the legality of the imposition of such an order in the first place.  You have given through counsel your undertaking to the Court that you will in effect behave in accordance with the restraining order sought by the Crown, but it is for us to determine, at this point, whether we could and would impose such an order.  We think that the statutory provision as the Crown quite rightly said to us in submissions is not entirely clearly worded, and it may benefit from legislative attention in due course.  However, it seems to us as is clear from the case of AG v C [2019] JRC 074 that there must be an evidentiary basis for the imposition of any order and we must be satisfied that it is necessary and proportionate to impose such an order.  The factual position as is presented to the Court and is contained in the statement from the victim in this case, is that you have not sought to make contact with the victim or her family at any point over the last 15 years.  According to the Social Enquiry Report, you present a low risk of reconviction, and you have confirmed to the Court that you would as you have done in the past turn away should you inadvertently confront the victim in this case.  And of course, inadvertence is one of those things that a restraining order could not in any event prevent. 

15.      In the circumstances we do not think that we are able to make a restraining order in the terms sought by the Crown.  In saying that, we are mindful of the fact that should you behave contrary to the undertaking that you have given through counsel to this Court, then not only will you be in breach of that undertaking but it would be open to the Crown to apply for a restraining order.  But we do not think in the light of the evidence before us, and in particular the history of this matter, that you are likely to make any deliberate contact with your victim or with your victim's family. 

16.      That is the sentence of the Court. 

Authorities

AG v Brester 2001/003. 

K v AG; AG v F [2016] JCA 219. 

AG v Dobrin and Ors [2019] JRC 097. 

Sex Offenders (Jersey) Law 2010. 

AG v C [2019] JRC 074

Crime (Disorderly Conduct and harassment) (Jersey) Law 2008

AG-v-T [2017] JRC 169

AG-v-W [2018] JRC 061

AG-v-B [2019] JRC 049

Sentencing Council Guidelines - Sexual Assault by penetration