Jersey Unreported Judgments

Superior Number Sentencing - Sexual touching - telecommunications - indecent photographs

[2019]JRC215

Royal Court

(Samedi)

29 October 2019

Before     :

Sir Michael Birt, Commissioner, and Jurats Olsen, Ramsden, Ronge, Austin-Vautier and Hughes

The Attorney General

-v-

Luis Sousa Rebelo

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 23^rd August, 2019, following guilty pleas to the following charges:

2 counts of:	Sexual touching without consent, contrary to Article 7(1)(b) of the Sexual Offences (Jersey) Law 2018 (Count 1 and Count 2).
1 count of:	Improper use of public telecommunication system, contrary to Article 51(a) of the Telecommunications (Jersey) Law 2002 (Count 3).
1 count of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 4).

Age:  27. 

Plea: Guilty. 

Details of Offence:

Count 1

In January 2019 the defendant sent a Facebook friend request to a 21 year old female victim.  The victim accepted the request and after an exchange of messages the female agreed to meet the defendant in a public park that same day.  Following the pair meeting the defendant requested that they go to the victim's flat.  She agreed.

 

On arriving at the flat the defendant and victim sat on the victim's bed in her bedroom.  The defendant "started playing with himself" and then attempted to touch the female between her legs.  The female told the defendant continuously no and that she was not in the mood.  The defendant persisted and managed to push his hand down the front of her shorts and pants and touched the outside of her naked vagina.  The victim told the defendant to leave and he left the flat shortly thereafter.

 

The victim reported the incident to the Police in early February 2019.

 

Count 2

In February 2019, whilst outside ROJO's nightclub, the defendant smacked a 21 year old female victim's bottom over her clothing.

 

Count 3

A concerned member of the public emailed a screenshot of a Facebook chat conversation between the defendant and a female who had told the defendant that she was 14 years old but was in reality 23 years old.  The defendant sent messages of a sexual nature and asked the female to send him a photograph of her vagina.  He sent her two photographs of his erect penis and an image of a male and female engaging in sexual activity.

 

Count 4

Following an analysis of the defendant's mobile phone a total of 15 indecent images were located comprising 5 level four images, 9 level three and 1 level one.  Search terms such as "young girls porn" and "porno small girls" were also located.

Details of Mitigation:

Guilty pleas.  The background reports noted that the defendant had psychological difficulties of his own.

Previous Convictions:

5 previous convictions for 11 offences although of a different nature to the offences for which he is to be sentenced for.

Conclusions:

Count 1:	18 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	6 months' imprisonment, consecutive.
Count 4:	21 month's imprisonment, consecutive.

Total:  3 years and 9 months' imprisonment.

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

Restrictive orders sought to commence from date of sentence for a period of 8 years under Article 10(4) with the following conditions

1)      That the Defendant be prohibited from:

a)         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;

b)         Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female 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;

c)         Being alone with any female 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 in circumstances where the defendant finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible;

3)      That the defendant be prohibited from:

a)         possessing any device capable of accessing the internet unless he has registered the device with the Offender Management Unit of the States of Jersey Police;

b)         accessing the internet on any device unless the history of that access is recorded, and he takes no steps to disguise, delete or otherwise conceal that history.

4)      That the defendant provide advanced notification details of any proposed changes of address or employment that will have to be approved by the Offender Management Unit of the States of Jersey Police;

5)      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 devices;

6)      That the defendant may not knowingly contact or associate with anyone he knows to have been convicted of any offence which would render them liable to the notification requirements of the Sex Offenders (Jersey) Law 2010 (not to come into force until the Defendant is released from custody).

Restraining Order sought under Article 5 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 for an indeterminate period that the Defendant be prohibited from approaching or contacting, directly or indirectly, Miss X other than any contact which is inadvertent or unavoidable.

Order sought for the forfeiture and destruction of the Samsung Galaxy mobile phone.

Sentence and Observations of Court:

Count 1:	18 months' imprisonment.
Count 2:	1 month's imprisonment, concurrent.
Count 3:	4 months' imprisonment, consecutive.
Count 4:	20 months' imprisonment, consecutive.

Total:  3 years and 6 months' imprisonment.

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

Restrictive orders granted to commence from date of sentence for a period of 8 years under Article 10(4) with the following conditions:

1)      That the Defendant be prohibited from:

a)         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;

b)         Contacting or attempting to contact, via any form of social media, internet or telecommunications system, any female 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;

c)         Being alone with any female 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 in circumstances where the defendant finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as reasonably possible;

3)      That the Defendant be prohibited from:

a)         possessing any device capable of accessing the internet unless he has registered the device with the Offender Management Unit of the States of Jersey Police;

b)         accessing the internet on any device unless the history of that access is recorded, and he takes no steps to disguise, delete or otherwise conceal that history.

4)      That the Defendant provide advanced notification details of any proposed changes of address or employment that will have to be approved by the Offender Management Unit of the States of Jersey Police;

5)      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 devices;

Restraining Order granted as set out in the Crown's conclusions.

Order made revoking a six month Probation Order imposed by the Magistrate's Court on 11^th June, 2019.

Forfeiture and destruction of the Samsung Galaxy mobile phone ordered.

M. R. Maletroit Esq., Crown Advocate.

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

JUDGMENT

THE COMMISSIONER:

1.        You are before us today for sentence on four counts.  Count 1 is a case of sexual touching of Victim 1 who is 21.  On the day you first met her in January this year, having only become Facebook friends that very day, she agreed to your request that you go to her flat.  There you repeatedly tried to touch her between her legs even though she pushed your hand away and told you 'no' several times.  You then pushed your hand down the front of her shorts and pants and touched the outside of her vagina.  She pushed your hand away and told you to leave her flat, which you then did.  It is clear from this that you were ignoring her repeated protestations.

2.        Count 2 took place only three days after you had been interviewed about Count 1.  On this occasion you slapped the bottom of Victim 2, a 21 year old woman outside a night club where she was talking to some door staff. 

3.        Count 3 involved you sending indecent pictures and messages online in December 2018 to a person who had told you online that she was 14; in fact that person was an adult.  However, we have been addressed by Advocate Dale who says that your version of events is that even though you had been told she was 14, you did not believe this because you thought she was 18 from her photographs, and there is evidence that you did reply to that effect, albeit that you then went on sending her images.  In the absence of any hearing to resolve whether you truly believed she was 18 or not we must proceed on the basis of your version of events, which is that you thought she was 18.  Count 3 therefore is not a case akin to potential grooming where there is thought to be a victim under age.

4.        Count 4 relates to fifteen indecent images of children found in your phone, of which five were at Level 4 on the Copine Scale which involves images of penetrative sex with a minor.  The searches recorded on your phone show that you have searched four sites which are suggestive of an interest in underage girls on your part.  However, we accept again, because we must proceed on the defence version in the absence of any hearing to the contrary, and this in fact is agreed by the prosecution, that these images were stored in the cache of your phone and could not therefore be accessed by you without specialist equipment.  This was not therefore the normal case of images which can be repeatedly viewed by the person concerned.

5.        We have a psychological report on Victim 1 as well as a victim impact statement from her.  It is clear from the Psychological Report that she has a number of psychologically difficult issues.  However, the report very clearly states that, given the many other traumatic incidents in her life, her state cannot be attributed to your actions in this case.  But having said that, what you did must clearly have been very disturbing to a vulnerable woman.  We have also read the Psychological and Probation Reports on you and both assess you as being at high risk of sexual reoffending.

6.        In mitigation we have taken account of your guilty plea and you are entitled to a full discount in relation to the first two offences.  You have saved the need for the victims to come and go through the trauma of giving evidence.  We have also read carefully the contents of the Social Enquiry Report and the Psychological Report and we do accept that you have psychological difficulties of your own.  Thirdly, we do note that you have suffered a traumatic last couple of years, first of all with the death of your mother and secondly with the subsequent prosecution and remand in custody of your father, and we have noted Advocate Dale's submissions that perhaps you were beginning to turn a corner after your arrest in this case. 

7.        Turning to the notification period we agree that 8 years is the appropriate period before you can apply to come off the Register.  In relation to the requested Restrictive Orders under the Sex Offenders (Jersey) Law 2010 we are going to grant them for a period of 8 years as requested by the Crown except for paragraph 6.  We do not think that is necessary or proportionate in this case.  I am not going to read them out but we are assuming that you have seen them already and, if not, your advocate certainly will be drawing them to your attention.  You must comply with those because it is a criminal offence to breach them.

8.        We also, as requested, make the order under the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 in respect of Victim 1 in the terms requested by the Crown.  In other words you must not approach or contact Victim 1 directly or indirectly.

9.        Turning then to the sentence, we have concluded, having regard to the totality principle, that the correct overall sentence is 3½ years' imprisonment and that sentence is going to made up as follows: Count 1, 18 months' imprisonment; Count 2, 1 month's imprisonment, concurrent; Count 3, 4 months' imprisonment, consecutive; Count 4, 20 months' imprisonment, consecutive so that makes a total of 3½ years imprisonment.

10.      We also discharge the Probation Order and we order the forfeiture and destruction of the Galaxy mobile.

11.      We note that in relation to deportation the Crown has not moved that we should recommend deportation.  We have not therefore considered this matter further and accordingly no recommendation is made.

Authorities

Sex Offenders (Jersey) Law 2010. 

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

Protection of Children (Jersey) Law 1994 (extract)

Telecommunications (Jersey) Law 2002 (extract)

Camacho v AG [2007] JLR 462

AG v Godson and Crowley [2013] (2) JLR 1

AG v Richards [2010] JRC 158

AG v Lochhead [2014] JRC 093

AG v Wasiela [2014] JRC 054

AG v Lally [2014] JRC 120B

K v AG, AG v F [2016] JCA 219

AG v De Oliveira [2017] JRC 005

AG v De Oliveira [2017] JRC 011

AG v T [2017] JRC 169

AG v Dobrin and ors [2019] JRC 097

AG v De Freitas [2019] JRC 186

AG v De Freitas [2019] JRC 197

AG v E [2019] JRC 151

R v Smith and Ors [2012] 1 Cr App R (S) 82. 

Sentencing Council Guidelines - Sexual assault