Jersey Unreported Judgments

Superior Number Sentencing - sexual touching - grave and criminal assault - common assault - indecency - reasons for the decision

[2020]JRC116

Royal Court

(Samedi)

18 June 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Ronge, Christensen and Austin-Vautier

The Attorney General

-v-

Adrian Florinel Dumitrache

R. C. P. Pedley Esq., Crown Advocate.

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        On 27^th May, 2020, the Court said it would give its reasons in writing for the sentence of 5 years 3 months imposed upon the defendant (who is aged 31) in respect of four counts of sexual touching without consent, contrary to Article 7(1) of the Sexual Offences (Jersey) Law 2018 ("the Sexual Offences Law"), one count of acting in a manner likely to cause an outrage of public decency, one count of common assault, one count of grave and criminal assault and finally, one count of committing an offence (namely the grave and criminal assault) with intent to commit a sexual offence, contrary to Article 39 of the Sexual Offences Law.

2.        The Court had ordered that 10 years should expire from that date before the defendant could apply to lift the notification requirements under the Sex Offenders (Jersey) Law 2010, a period of time not opposed by Advocate Harrison for the defendant, but a point arose in discussion which we will address when we come to the issue of deportation.

3.        Within three months of coming to the Island, the defendant had committed sexualised offences (arguably other than in one case) on seven adult women walking alone in St Helier, all of whom were strangers to him.  These offences increased in frequency and severity, ranging from exhibitionism (masturbating in front of a woman) to grabbing a woman's buttocks as he cycled past and to following a woman, pushing her into the communal hallway of her home where he committed a grave and criminal assault with intent to commit a sexual offence.

4.        The prosecution listed the following as aggravating features:

(i)        All the victims were single females.

(ii)       At the time of the offending, the victims were in areas of town where there were few, if any, witnesses.  In three of the cases, it was dark at the time of the offences.

(iii)      In most cases, the defendant identified a target and then actively followed her, waiting for a chance to assault her.

(iv)      All the offences were committed within one month, shortly after the defendant's arrival here.

(v)       Four of the offences took place within an hour on Christmas Day (Counts 5 to 8).

(vi)      In two cases, the victims were grasped round the neck (Counts 1 and 2).

(vii)     The motivation in all cases was sexual.

5.        The defendant has recorded against him two convictions in Spain for theft with violence, but a document recovered from his accommodation indicated that he has convictions in Spain for sexual offences and that he was in custody in Spain from 17^th April 2010 to 11^th October, 2019, which accords with the defendant's account to the Probation Department that he spent 9 years 6 months in a Spanish prison.  It is not known why these other offences are not contained on his record.  Documentation also indicated that on 20^th August 2019, he was expelled from Spain and banned from re-entering for ten years, which the defendant accepts as correct.

6.        The defendant replied "No comment" to the questions put to him by the police in his three interviews, and refused to give the police the pin numbers to his mobile phones.  In his dealings with the Probation Department, he sought to minimise his offending behaviour and in the opinion of the Probation Officer lacked victim empathy, claiming the sexual touching offences were a joke carried out when he was intoxicated.  The social inquiry report scored the defendant as being highly sexually preoccupied, and posing a high risk of sexual re-conviction.

7.        The offence of sexual touching without consent, contrary to Article 7(1) of the Sexual Offences Law 2018, carries a maximum sentence of ten years.  There is no precedent for sentencing for this offence, and the prosecution had therefore regard to factually similar cases charged under the common law offence of indecent assault, namely AG v Boot (1995/235), AG v Drumond (1997/203), AG v Sousa (2001/219) and AG v Mendes [2010] JRC 237, which involved sentences of between 18 months and 2½ years, following guilty pleas.

8.        There is, of course, established precedent for sentencing for the one count of grave and criminal assault, namely Harrison v AG [2004] JLR 111, the factors of which we took into account, and there is also established precedent for the one count of common assault for which Whelan, Aspects of Sentencing identifies a range of one to twelve months.  Both are common law offences, the sentences for which are at large.

9.        In relation to the one count of grave and criminal assault, the defendant was also charged with committing that offence with intent to commit a sexual offence, contrary to Article 39 of the Sexual Offences Law, which carries a maximum sentence of ten years.  There is no precedent for sentencing of this offence, but the prosecution referred the Court to the English Sentencing Council Guidelines which say this in relation to the equivalent English offence:-

"The starting point and range should be commensurate with that for the preliminary offence actually committed, but with an enhancement to reflect the intention to commit a sexual offence.

The enhancement will vary depending on the nature and seriousness of the intended sexual offence, but 2 years is suggested as a suitable enhancement where the intent was to commit rape or assault by penetration."

10.      This seems a sensible approach to be taken in relation to this offence.  The prosecution was not in a position to assert that the defendant's intent was to commit rape or assault by penetration and in the light of the preliminary offence being one of grave and criminal assault, moved for a concurrent sentence, so the circumstances in which an enhancement might apply did not arise for consideration.

11.      There is no precedent for sentencing for the common law offence of acting in a manner likely to cause an outrage of public decency and being a common law offence, the sentence is at large.  In Carpenter v Constable of St Clement (1972) JJ 2107, the Court quoted Russell on Crime 12^th Edition Volume 2 (1964) with approval:

"In general all open lewdness, grossly scandalous, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality, and good order, is a misdemeanour indictable at common law."

12.      The prosecution referred to two cases involving the same person which it said were factually similar, but were charged under the common law offence of exposing the person.  In AG v Lochhead [2014] JRC 093, Lochhead was convicted of nine counts of exposing himself to at least 20 girls between the age of 12 and 16.  In three offences he had masturbated in front of them.  The accused was sentenced to two years' imprisonment.  The following year, he was back before the Court, having been observed by two young girls aged 12 and 13 to be playing with himself at the West Park bathing pool.  Two other girls, both 11, also witnessed him wandering around the area with nothing but his tee shirt on.  He was sentenced to another 18 months' imprisonment and placed on the Sex Offenders Register (AG v Lochhead [2015] JRC 168).

13.      Crown Advocate Pedley accepted that the defendant's conduct was less serious than those involving Lochhead, as he was not seen by any children, but it remains the case that he approached a lone adult female and was then seen by her masturbating openly in a public park at 8.00 o'clock in the morning on Christmas Day. 

14.      Crown Advocate Pedley also referred the Court to the English Sentencing Council Guidelines in respect of culpability and harm for Sexual Assaults, and we agreed that in terms of harm, the violence or the threat of violence was a feature of at least the sexual touching counts, if not all of the counts.  Count 5 involved the attempted forced entry into the victim's home.  In Count 2 the defendant pushed the victim from behind as she had opened the door to the communal hallway of her building, knocking her on to her back, and then grabbed her round the neck with his hands and squeezing hard, whilst lying on top of her.  He desisted and left after she had screamed for help repeatedly, fearing that she was going to be raped.  We agree that none of the factors listed under culpability apply, and that the aggravating features under these guidelines comprise the defendant's previous convictions, the location and timing of the offences and the isolation of the victims.

15.      The prosecution moved for what it considered were appropriate sentences in all cases, allowing for mitigation and having regard for totality, had made some of the sentences concurrent as follows:

(i)        Count 1 (sexual touching of Ms A on 8^th December 2019 on St Helier street at 7.00 am) - 18 months' imprisonment.

(ii)       Count 2 (grave and criminal assault on 22^nd December 2019 on Ms B in the hallway of her home at 3.00 am) -    2 years' imprisonment (consecutive)

(iii)      Count 3 - (intent to commit a sexual offence on 22^nd December 2019 on Ms B in the hallway of her home) - Two years' imprisonment (concurrent)

(iv)      Count 4 (common assault on 23^rd December 2019 on Ms C on St Helier street around 4.00 am) - 6 months' imprisonment (consecutive)

(v)       Count 5 (sexual touching of Ms D in the hallway of her home on 25^th December 2019 at 7.30 am) - 18 months' imprisonment (consecutive)

(vi)      Count 6 - (masturbating in Springfield Park on 25^th December 2019 at around 8.00 am) - 18 months' imprisonment, concurrent.

(vii)     Count 7 - (sexual touching of Ms E on St Helier street on 25^th December 2019 at around 8.10 am) - 9 months' imprisonment, concurrent.

(viii)    Count 8 - (sexual touching of Ms F on St Helier street on 25^th December 2019 at around 8.20 am) - 6 months' imprisonment, concurrent)

Thus, Counts 1, 2, 4 and 5 were to be consecutive, Count 3 concurrent to Count 2, and Counts 6, 7 and 8 concurrent to Count 5; making a total sentence of five years six months.

16.      In essence, the prosecution approached sentencing by making the sentences for the offences committed on each day concurrent to each other, but consecutive to the offences committed on other days.  This has particular significance in relation to 25^th December 2019, when four offences were committed in respect of four separate victims.  Because they were separate incidents involving different victims this could have resulted in consecutive sentences, greatly increasing the totality of the ultimate sentence imposed.

17.      Advocate Harrison gave a very thorough address in mitigation, which we would summarise as follows:

(i)        The defendant's guilty plea was of real value in that, in particular, it saved the seven victims from having to give evidence.

(ii)       Despite the social enquiry report, stating that he had shown no genuine remorse, he had shown remorse in his dealings with Advocate Harrison, in particular when having the impact statements read out to him.

(iii)      The Court should take into account his traumatic childhood experiences and the effect of him being in custody in Spain for some nine years, as a young man.

(iv)      He went through each count separately, submitting that, apart from the grave and criminal assault, the violence for these offences was at the lower end of the range with the defendant in each case desisting when the victims protested.  In no case were there any injuries.  In his view, apart from Counts 2, 3 and 5, the remaining counts, if taken separately, would have been dealt with in the Magistrate's Court.

(v)       In his view, Count 1 would have attracted a sentence of six months, Count 2 a sentence of 18 months' imprisonment (to be consistent with Count 5), Count 4, one month's imprisonment, Count 6, six months' imprisonment, Count 7, six months' imprisonment and Count 8, six months' imprisonment.  He accepted that 18 months' imprisonment for Count 5 was probably correct.  In terms of the totality principle, he suggested that the total sentence should be between three and four years.

(vi)      He asked the Court to be cautious about accepting the prosecution's submission that the defendant was targeting and following the victims.  He submitted that the defendant did not identify victims in advance, and did not take time to assess when to attack.  These were, he said, random offences, committed under excessive alcohol consumption, a feature, he accepted, was an aggravating factor.

(vii)     For the sexual offences, the fact that the motivation was sexual could not be regarded as an aggravating factor, because they were sexual offences.

(viii)    There had been no charge of committing an offence with intent to commit any sexual offence in relation to the common assault, (Count 4), and he did not accept that the motive for that assault was sexual. It would be wrong, he submitted, to sentence the defendant on the basis that the motive was sexual.

Conclusion

18.      It may well be that if the offences (other than Counts 2, 3 and 5) had been before the Magistrate's Court, lower sentences might have been imposed on each count if sentenced in isolation, because the circumstances surrounding that one offence would have been different.  It seemed to the Court that it was entitled, and indeed it was appropriate, to take into account, as an aggravating feature, the number of offences committed in this short period involving seven different victims; it was as if the defendant had embarked upon a campaign of sexual offending against lone women in St Helier.

19.      It also seemed to the Court that focusing on the lack of physical injury and the defendant's retreat in each case, was to lose sight of the fact that such an assault on a lone woman, by a strange man, in three of the cases in the dark, would give rise to very considerable and understandable fear on her part, as evidenced by the impact statements we had received from some of the victims.  As the Court said in AG v Nicholson [2001/1] 40, it must be every woman's nightmare to be followed through the streets at night and then sexually assaulted, even if the assault is at the lower end of the scale and successfully resisted. 

20.      We think it fair for the prosecution to say that in most cases the defendant had identified a target and then actively followed her, looking for a chance to assault her, and in the case of Count 2, it is arguable that the sentence sought was too lenient, in that the defendant had pushed his way into the victim's home with the victim finding herself on the floor with the defendant on top of her and with his hands around her neck; she genuinely feared she would be raped.  The facts of this offence were demonstrably more serious than the facts in Count 5 and a differential in the sentence of each was justified.  We also think it fair for the prosecution to say that the common assault had a sexual motive, given the pattern of the defendant's sexual offending during this short period.

21.      As a consequence, save for Count 1, which we reduced to 15 months' imprisonment, we regarded the sentence moved for by the prosecution as appropriate.  Advocate Harrison said the prosecution had paid lip service to the totality principle, but we disagreed.  Counts 5 - 8 involved four separate victims in separate incidents, for which consecutive sentences could well have been justified.  As it was, the approach of the prosecution to the consecutive and concurrent treatment of these offences was right in principle, as conceded by Advocate Harrison, and in our view, a total sentence of 5 years 3 months was not too high for the criminality here.

Deportation

22.      The Court found the two tests set out in Camacho v AG [2007] JLR 462 met and recommended that the defendant be deported.  This was not opposed by the defendant, whose wish is to return to Romania, where his partner and two children reside.  However, Advocate Harrison queried whether, assuming deportation, the period during which the defendant could apply for the notification requirements to be lifted should be reduced from the ten years sought by the prosecution (and which was not resisted by Advocate Harrison), to enable either the defendant or the Attorney General to apply to have them lifted, should he be deported at the end of his sentence.  Advocate Harrison queried the point of the Jersey police having to manage the defendant if he was permanently out of the jurisdiction.

23.      The Court concluded that it should specify the period before the defendant could apply to lift the notification requirements on the basis that the defendant would remain in the jurisdiction, for the following reasons:

(i)        The Court was making a recommendation for deportation, but the actual decision would be taken by the Home Affairs Minister, so the Court could not assume that the defendant would be deported at the end of his sentence.

(ii)       Even if the defendant was deported, he might, in the future, apply to return to the jurisdiction.

24.      Although not the subject of any detailed discussion in Court, the Jersey police self-evidently would not be expected to manage a person who is permanently outside the jurisdiction, but would come under an obligation to do so should he or she return, and that is as it should be.  Accordingly, the Court ordered that ten years should expire before the defendant could apply to have the notification requirements lifted.

Authorities

Sexual Offences (Jersey) Law 2018. 

AG v Boot (1995/235). 

AG v Drumond (1997/203). 

AG v Sousa (2001/219). 

AG v Mendes [2010] JRC 237. 

Harrison v AG [2004] JLR 111. 

Whelan, Aspects of Sentencing in the Superior Courts of Jersey. 

Carpenter v Constable of St Clement (1972) JJ 2107. 

Russell on Crime 12^th Edition Volume 2 (1964). 

AG v Lochhead [2014] JRC 093. 

AG v Lochhead [2015] JRC 168. 

AG v Nicholson [2001/140]. 

Camacho v AG [2007] JLR 462.