Jersey Unreported Judgments

Inferior Number Sentencing - unlawful intercourse - indecent assault

[2020]JRC217

Royal Court

(Samedi)

16 October 2020

Before     :

A. J. Olsen Esq., Lieutenant Bailiff, and Jurats Austin-Vautier and Averty

The Attorney General

-v-

Justin James Samson

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:

First Indictment

1 count of:	Unlawful sexual intercourse, contrary to Article 4(1) of the Loi (1895) Modifiant le Droit Criminel (Count 1).
1 count of:	Indecent assault (Count 2).

Second Indictment

1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law, 1956. (Count 1).
1 count of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance) (Jersey) Law, 1948. (Count 2).

Age:  38. 

Plea: Guilty. 

Details of Offence:

The defendant pleaded guilty to offences of unlawful sexual intercourse and indecent assault dating back to 2004, when he was 22 years old, against the complainant, who was 15 years old at the time.  As a result of the unlawful sexual intercourse, the complainant fell pregnant and subsequently underwent a termination.

 

The defendant was also sentenced for driving offences.

 

First Indictment

On 22^nd July, 2004, the complainant's mother reported to the police that her daughter had been having a sexual relationship with the defendant.  He was arrested and responded "I ain't done nothing, I love her". 

 

He said he had been going out with the complainant for about a week and a half and their relationship was "...just a normal boyfriend girlfriend thing".  He said they had slept in the same bed, but denied having sex.  He admitted that they had masturbated each other.

 

He was aware the complainant was 15 years old and that the legal age for a sexual relationship was 16, but claimed he did not know he had broken the law because he thought it was only the case if they were "having intercourse".

 

On 4^th August 2004, the complainant took part in a video-recorded interview.  Some weeks later she discovered she was pregnant.  She had a termination on 7^th September, 2004.

 

The defendant was interviewed a second time.  He admitted the masturbation had taken place at his sister's house.  He was questioned about an alleged incident of sexual intercourse on a blanket in a park and categorically denied it.  A DNA sample was taken. 

 

In September 2005, police reviewed the matter and were concerned that 14 months after the initial complaint, the case had not been resolved.  The original paperwork was missing and despite a thorough search, the file could not be found.  On Tuesday 15^th November 2005, an entry was made on the internal police systems recommending "NFA [no further action] no likelihood of successful prosecution".

 

On 7^th July 2019 the complainant contacted States of Jersey Police to discuss the historic investigation of her complaint and the decision taken at the time to take no further action.

 

A new investigation was opened and a series of samples, pertaining to the complainant's abortion in 2004, were retrieved from the General Hospital and submitted for DNA analysis. 

 

The complainant took part in a video-recorded interview with the police about the events in 2004.

 

She described staying with the defendant overnight in a house, and him inserting his fingers inside her vagina whilst they were in bed (Count 2).  She described the intercourse in the park.  She thought at the time the defendant had been wearing a condom (Count 1).

 

She said the incidents with the defendant had "ruined a lot of [her] life" and she now felt she had been groomed by him.

 

On 29^th November, 2019, the defendant was arrested on suspicion of unlawful sexual intercourse with a child under the age of 16.  On 29^th November, 2019, and 27^th February, 2020, he was interviewed again.  He said "I've got nothing to say" and answered "no comment" to all questions.

 

In June 2020 a Forensic Scientist who had examined the DNA samples concluded that there was "very strong support for the proposition that [the Defendant] (or a close paternal-line male relative of his) [was] the biological father of the products of conception from [the Complainant]". 

 

Second Indictment

On 28^th May 2020, the defendant was observed driving a VW Transporter in St. Helier.  He did not hold a valid driving licence at the time (Count 1).  A Police Officer followed him into Green Street car park and asked if he had a licence.  He said he had a provisional licence, but was unable to produce it.

 

The Officer asked to see the defendant's insurance.  He pointed to his windscreen disc but was unable to produce the certificate (Count 2). 

Details of Mitigation:

Prosecution: Guilty pleas.  The Crown acknowledged that the delay in prosecuting had impacted on the complainant and the defendant in equal measure, although this was not exceptional mitigation as far as the defendant was concerned.

 

Defence: Offences took place over a limited period of time; no coercion of complainant; complainant (aged 15½ at the time) was not far from the age of consent; defendant's difficult upbringing (parents' drug use, placed into care homes; inappropriate early sexual experiences); defendant made material admissions in 2004 and gave DNA sample; poor policing meant a prosecution could have been pursued earlier but was not; delay.

Previous Convictions:

21 convictions for 131 offences, 50 of which were motoring offences.  None of a sexual nature.

Conclusions:

First Indictment

Count 1:	Starting point 3 years and 6 months' imprisonment.  2 years and 6 months' imprisonment.
Count 2:	2 years' imprisonment, concurrent.

Second Indictment

Count 1:	No separate penalty.
Count 2:	6 months' imprisonment, consecutive to the First Indictment and disqualified from driving for 6 months.

Total:  3 years' imprisonment and disqualified from driving for 6 months.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant be permitted to no longer be subject to the notification requirements.

Restraining Order sought pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 for an indeterminate period, in the following terms:

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

Sentence and Observations of Court:

First Indictment

Count 1:	18 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.

Second Indictment

Count 1:	No separate penalty.
Count 2:	6 months' imprisonment, consecutive to the First Indictment and disqualified from driving for 12 months.

Total:  2 years' imprisonment and disqualified from driving for 12 months.

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the defendant be permitted to no longer be subject to the notification requirements.

The Court declined to make a Restraining Order.

M. Temple Q.C., Attorney General.

Advocate L. Sette for the Defendant.

JUDGMENT

THE lieutenant BAILIFF:

1.        The facts giving rise to Counts 1 and 2 of the First Indictment, which respectively charge the defendant with unlawful sexual intercourse and indecent assault, occurred over 16 years ago when the defendant was 22 years old.  The complainant was aged 15½ years at the time.  She fell pregnant and underwent a termination some two months later.

2.        We note that the sexual intercourse is accepted by the Crown as having taken place on one single occasion and that only one offence of indecent assault is charged.  These are not specimen charges therefore.  This was not a prolonged or persistent course of conduct, which is so often a feature of cases of this type.

3.        The Court also takes into account that although there was some element of breach of trust in this case, it was not a gross breach such as that committed by a teacher or a parental figure abusing children in his care.  Nevertheless in our judgment this was an opportunistic offence and it would seem from our reading of the Social Enquiry Report that opportunism has been a feature of this defendant's offending in the past. 

4.        We mention these matters at the outset in order to provide some context for the offending and not in any way to minimise it or the impact that these crimes have had upon the victim.  We have read the Victim Impact Statement with care and we note the effect upon the complainant including emotional and physical consequences; and in this context we are concerned by the statement in the Social Enquiry Report at paragraph 32, which reads:

"Mr Samson does not display any remorse toward the victim and does not appear to understand the impact his behaviour could have had on her.  However, he does express regret although his reasons appear to be more about the consequences for himself rather than those of the victim."

We note though that the author goes on to say this:

"Nevertheless, Mr Samson does have an understanding of the impact engaging in sexual intercourse with a child could have on them and responded appropriately when I linked such a scenario to his daughter."

5.        The Sexual Offences (Jersey) Law 2018 has increased the maximum sentence for unlawful sexual intercourse to 10 years' imprisonment, but this offence was committed prior to the coming into force of that Law, and the Crown has rightly conceded that the defendant falls to be dealt with under the Loi (1895) Modifiant le Droit Criminel.  The maximum sentence under that Loi is one of 5 years' imprisonment.  We remind ourselves of the gravamen of the offence of unlawful sexual intercourse.  The law may have changed, but the underlying reason for the existence of the offence has not; it is immutable. 

6.        Delivering the judgment of the Court of Appeal in Kittleson v AG [2011] JCA 052 the President, Sir John Nutting said at paragraph 25:

"There can be no doubt that this offence exists to protect children and that a girl under 16, no matter how developed and no matter how mature for her age, is still a child who must be protected even from herself.  As Silber J. said in R. v Goy [2001] 1 Cr. App. R. (S.) 13 "The aim of this legislation is to ensure that girls are protected from sexual intercourse even if they have consented."

7.        In AG v Brewster 2001/3 the then Bailiff, Sir Philip Bailhache, commented:

"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."

In our judgment, those words hold just as true today as they did nearly two decades ago. 

8.        In the instant case there are no exceptional circumstances and indeed none has been advanced on behalf of the defendant by counsel.  But we do take into account the mitigating factors.  The guilty plea was a valuable one.  It saved the victim from having to give evidence and thus to relive this traumatic period in her life, and thus we propose to allow the defendant full credit for the guilty plea. 

9.        In our judgment another major mitigating factor is that, despite the fact that the defendant has a long and unenviable criminal record, this is his first sexual offence, and we note also that he has not reoffended in that way over the course of the last 16 years.  We also take account of the unfortunate delay in the bringing of this prosecution, notwithstanding that the defendant admitted to the police in 2004 that he had indecently assaulted the victim.  The delay has prejudiced both the complainant and the defendant.  We hasten to say that it does not arise as a result of the fault of either of them, but we must allow the defendant some extra credit for the delay.

10.      We have also had regard to everything that is contained in the Social Enquiry Report and the very comprehensive psychological report.

11.      We are also impressed by the progress that the defendant is making with the substance abuse officer at HM Prison La Moye.  The officer is reported to have said this to the Probation Officer:

"Justin is always polite and compliant whenever we meet and has opened up considerably since our first session. He has a very good level of understanding of how his opiate misuse is linked to his criminogenic behaviour. ...

...

I have noticed that he is becoming more reflective and is now creating a very clear plan for his future, especially as he has agreed to work for his friend who owns a garage. Part of his plan is to remain permanently abstinent from any substance, in particular opiates. He also states that this is the healthiest that he has ever felt and that he plans to remain healthy, both physically and mentally."

12.      The Second Indictment contains two counts to which the defendant has also pleaded guilty.  Driving without insurance is a serious offence and the culpability on this occasion is exacerbated by the fact that the defendant has committed such an offence on very many previous occasions.  There is no mitigation available to him in the fact that he drove while uninsured on this occasion because he knew he was going to prison anyway and he had nothing to lose.  That is not advanced as mitigation and if anything we think it is a slightly aggravating factor. 

13.      Mr Samson, would you stand please.  As you have heard we have taken account of all the mitigating factors and we are going to reduce the Conclusions of the Crown.  On the First Indictment, unlawful sexual intercourse, the sentence will be of 18 months' imprisonment.  On Count 2, the indecent assault, 15 months' imprisonment, concurrent.  On the Second Indictment Count 1, there will be no separate penalty.  On Count 2, driving without insurance, 6 months' imprisonment, consecutive and you will be disqualified for driving or obtaining a licence for 12 months.  This is a total of 2 years' imprisonment.

14.      As a result of your conviction you have become subject to notification requirements under the Sex Offenders (Jersey) Law 2010 and despite all that your advocate has said on your behalf it is our order that a period of 5 years is appropriate before you may apply to have the notification requirements dis-applied. 

15.      We make no restrictive orders.

16.      We are unable to make a restraining order under Article 5 of the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 because the tests set out in that Article are not met in this case.  We take comfort, as should the complainant, that the defendant has not been in contact with the complainant for 16 years and we accept your assurance through counsel that you have no intention of doing so. 

17.      Mr Samson, we note with great regret your sad and troubled childhood.  You had a pretty dreadful start in life.  It might not be unfair to say that the system failed you, but you must please try to leave this behind you now as best you can.  We are really encouraged by much of what we have heard and read about you.  You are intelligent.  We urge you to take full advantage of all the training, all the therapy and all the courses that are available to you at HMP La Moye.  We are very encouraged indeed to learn that your friend has agreed to offer you training and employment on your release in his motorcycle and Land Rover repair business.  We hope that that will be the making of you and mark a new chapter in your life.  We very much hope we shall not see you here again. 

Authorities

Sexual Offences (Jersey) Law 2018. 

Loi (1895) Modifiant le Droit Criminel. 

Kittleson v AG [2011] JCA 052. 

AG v Brewster 2001/3. 

Sex Offenders (Jersey) Law 2010. 

AG v Bacon [2017] JRC 041A

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

J-v-AG [2016] JCA 090

AG-v-Kittleson [2010] JRC 184

AG-v-Hamon [2003] JRC 149

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

Magistrate's Court Sentencing Guidelines 

Sentencing Council Guidelines for England and Wales