Jersey Unreported Judgments

Superior Number Sentencing - gross indecency - indecent assault - reasons for the sentence given

[2021]JRC329

Royal Court

(Samedi)

29 November 2021

The Attorney General

-v-

W

J. C. Gollop Esq., Crown Advocate.

Advocate A. E. Binnie for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        On 8^th November 2021, the Court sentenced the Defendant to a total sentence of five years and six months for four counts involving sexual offences.  The victim of these offences was a girl of between seven to ten years at the time of the offending (2013-2015).  The Defendant had known the victim since she was born.  He was her godfather and saw himself to be a father figure to her.  He was a family friend and regular visitor to her home.  She would also regularly visit and stay the night in his home.

2.        Count 1, procuring an act of gross indecency, related to an incident when the Defendant was taking the victim home in his car and stopped in a car park, where she could see his penis hanging out of his shorts.  He got out of the car, took out his penis fully and started masturbating.  He told the victim to touch his penis which she did once, telling her what came out when he ejaculated was normal.  He warned her not to tell anyone or she would never see him again.

3.        As regards Count 2, indecent assault, he kissed the victim on the mouth putting his tongue into her mouth.  For Counts 3 and 4 (both being indecent assaults) the Defendant on repeated occasions touched the top part of her chest and put his hands down the inside of her underwear, touching and rubbing her vagina.

4.        The Defendant was found guilty of these offences after a three-day trial in which the victim had to give evidence and be cross-examined.  The offending involved a flagrant breach of trust.  The Defendant was in a position of authority and responsibility towards the victim, which he abused for his own sexual gratification.  The effect upon the victim has been profound.  The Court had two personal statements from the victim, although no psychological assessment of the effect on her.  The Defendant does not have a good record, although none of his previous convictions were for sexual offences and is assessed at a moderate risk of sexual re-offending.

5.        Moving for conclusions (which were ultimately accepted by the Court), the Crown had referred to two cases which pre-dated the decision in K v A and AG v F [2016] JCA 219, in which the Court had signalled that sentences for sexual offences against children were likely to attract a higher sentence than had previously been the case.  The two cases referred to by the Crown were AG v BR [2006] JRC 155 and AG v H [2013] JRC 010.  In AG v BR the complainant, who was the granddaughter of the defendant assaulted her whilst in his care when she was between the ages of six and seven.  Indecent assaults involved sexual touching of the victim's vagina on at least six occasions when in her own home.  The Defendant was sentenced to three and a half years' imprisonment on a guilty plea, which would have equated to a sentence of five years and three months on a not guilty plea.  AG v H was a case also involving a breach of trust by a grandfather on his granddaughter, when aged twelve years and on two daughters of his housekeeper when aged between six to nine years and seven to eleven years.  Indecent assaults involved sexual touching of the victims' undeveloped breasts.  The Defendant was sentenced to two and a half years' imprisonment on a not guilty plea and ordered to pay compensation and prosecution costs.  The Crown acknowledged that the present case, in addition to indecent assaults, involved the procuring of an act of gross indecency during which the Defendant ejaculated in front of the victim.

6.        The Crown had not referred the Court to the English Sentencing Council Guidelines ("the English Guidelines") or to any cases involving indecent assaults following the K case, and the Court therefore adjourned the hearing for further research to be undertaken.

7.        In the Crown's subsequent addendum conclusions, the Court was provided with the relevant extracts from the English Guidelines.  The Court took into account the guidance given by the Court of Appeal in K at paragraphs 33 and 34 as to the relevance of the English Guidelines:

"33     As has been said on other occasions, the guidelines helpfully set out factors which are properly regarded as distinguishing some offences from others in terms of seriousness.  While we do not endorse the starting points or anticipated range of finishing points for particular offences, we think it is entirely appropriate for the Royal Court to have regard to the factors which according to the guidelines, would assist the English Court to categorise the seriousness of the offence."

8.        In reaching our conclusions, the Court considered the English Guidelines in this way, and we did not apply them in so far as the levels of sentence or starting points were concerned, regarding the same merely as a useful cross check and recognising this Court was quite entitled to impose sentences that were outside those that might be imposed in England and Wales.  Under the English Guidelines:

(i)        Count 1 - procuring an act of gross indecency -- was a category 3 case, with culpability A (abuse of trust and deliberate isolation in car park), a starting point of 5 years and a range of 3 - 8 years.  Aggravating factors were ejaculation, threats made and exploitation of contact arrangements.  Mitigating factors were no previous relevant convictions and good character. 

(ii)       Count 2 - indecent assault - (kissing the mouth) was a category 3 case with culpability A (abuse of trust and deliberate isolation), a starting point of 1 year and a range of 26 weeks to 2 years' imprisonment.  Aggravating features were threats made and location of offence and mitigating factors were no previous relevant convictions and good character. 

(iii)      Count 3 - indecent assault - (touching breasts repeatedly) was a category 2 with culpability A, (abuse of trust and deliberate isolation at home), a starting point of 4 years with a range of 3 - 7 years.  The aggravating factors were threats made and location of offence and mitigating factors were again no previous convictions and good character. 

(iv)      Finally, Count 4 - indecent assault - (touching the vagina repeatedly) was a category 2 case with culpability A (abuse of trust and deliberate isolation at home), a starting point of 4 years with a range of 3 - 7 years.  Aggravating factors were threats made and location of offence and mitigating factors again no previous relevant convictions and good character.

9.        Since the K case in 2016, there have been over 20 cases before the Royal Court which have involved sentencing for indecent assault and/or procuring acts of gross indecency.  Of those cases, six have involved adults offending against minors of comparable age to the victim in this case, who was between the ages of seven and ten years.  Those cases are AG v T [2017] JRC 169, which involved indecent assault upon an eight year old, AG v S [2017] JRC 194A, which involved indecent assaults and procuring acts of gross indecency upon a three to seven year old, AG v W [2018] JRC 061, involving indecent assaults and procuring acts of gross indecency upon a nine year old and a ten year old, AG v D [2018] JRC 158 involving indecent assaults and procuring acts of gross indecency upon a seven year old a nine year old and a ten year old, AG v Carrel [2019] JRC 130 which involved indecent assaults and procuring acts of gross indecency upon an eight year old and finally, AG v F [2019] JRC 182, involving indecent assaults and procuring acts of gross indecency upon a ten to eleven year old.

10.      Without setting out the details of each of these cases and the sentences imposed, it can be said that each is distinguishable on their facts, often involving multiple victims over different periods of time with the Court considering the principle of totality and a "Valler uplift", where relevant (Valler v AG [2002] JLR 383).  The exercise demonstrated how the circumstances of these cases differed greatly and as Whelan observed in Aspects of Sentencing in the Superior Courts of Jersey 3^rd edition at paragraph 447, these offences are not susceptible to a guideline approach. 

11.      The offences in this case were committed over a period of 2½ years and we accept Advocate Binnie's submission that they were opportunistic, rather than planned, with there being no evidence of grooming.  It is not a case of the Defendant targeting a particularly vulnerable child.  There was no digital penetration and the act of gross indecency involved one touch of the Defendant's penis.  None of this is to detract from the seriousness of the offending, and the impact upon the victim, but in the view of the majority, the sentences proposed were not inconsistent with previous cases, or by way of cross check outside the ranges applicable under the English Guidelines, with the exception of Count 2.  All members of the Court regarded the insertion of the defendant's tongue into the mouth of this young victim as an intrusive and serious form of sexual assault.  One Jurat would have increased the sentences for Counts 1 and 4 to six years and six month's imprisonment.

12.      Advocate Binnie accepted that the sentences proposed by the Crown were correct, save that in her view, a further reduction of three to six months was justified on account of the mitigation available to the Defendant, which included his good 20-year work record, the stress caused by the breakdown of his marriage at the relevant time, and the separation from his only son.  No offences have been committed by him for the first nine years in the Island.  She said he was not entirely uncooperative at his police interview.

13.      It has often been said that good character will seldom if ever cause the Court to depart from what would otherwise be an appropriate sentence, where the offences are of this nature, and in the Court's view, there was little if any mitigation available to the Defendant.  He had not only caused a trial but had shown no remorse.

14.      Accordingly the conclusions of the Crown were granted, with the Court imposing a sentence of five years and six months imprisonment for Count 1 (procuring an act of gross indecency), three years imprisonment for Count 2 (indecent assault - kissing on the mouth) concurrent, three years imprisonment for Count 3 (indecent assault - touching the top part of the victim's chest) concurrent and five years and six months imprisonment  for Count 4 (indecent assault - touching the victim's vagina) concurrent, making a total sentence of five years and six months imprisonment.

Sex Offenders (Jersey) Law 2010

15.      The Crown sought a period of ten years from the date of sentence before the Defendant could apply to lift the notification requirements and restraining orders for the same period.  Advocate Binnie argued that ten years in both cases was too long, and that five years should be imposed instead.

16.      The Court disagreed.  A material part of that time would be spent by the Defendant serving his sentence of imprisonment, and the risk of serious sexual harm would not in reality arise until his release.  In those circumstances, the period of ten years in both cases was both justified and proportionate.

Deportation

17.      [REDACTED].

18.      Advocate Binnie conceded that the first part of the test in Camacho v AG [2007] JLR 462 was met, namely that the Defendant's continued presence in Jersey would be detrimental to the community, bearing in mind his record of convictions in the USA, his record of convictions in Jersey and these offences.  The second part of the test is whether his deportation would be disproportionate, having regard to the rights given to him and his family under Article 8 of the ECHR.

19.      The Crown submitted that this part of the test was met, in that the Defendant had no family members in Jersey other than his son, with whom he had not had any contact for some five years.  No innocent person would therefore be detrimentally affected by his deportation.  The issue of where he would be deported to would be a matter to be addressed at the relevant time.

20.      The Court was not persuaded, however, that the second part of the test was met.  The Defendant had been living in Jersey for some 21 years, where, despite his offending, he had always been fully employed.  The real issue, however, was his son.  The Court was not in a position to determine the true cause of the lack of contact, but his son was only [REDACTED], and he may well seek to re-establish his relationship with his father when he is older, something which would be considerably more difficult if his father had been deported.  His son was an innocent person, and a child, and in the Court's view, the deportation of his father would be detrimental to him.  The Court therefore declined to recommend the Defendant's deportation.

Authorities

K v A and AG v F [2016] JCA 219. 

AG v BR [2006] JRC 155. 

AG v H [2013] JRC 010. 

AG v T [2017] JRC 169. 

AG v S [2017] JRC 194A. 

AG v W [2018] JRC 061. 

AG v D [2018] JRC 158. 

AG v Carrel [2019] JRC 130. 

AG v F [2019] JRC 182. 

Valler v AG [2002] JLR 383. 

Whelan on Aspects of Sentencing in the Superior Courts of Jersey 3^rd edition. 

Camacho v AG [2007] JLR 462.