Jersey Unreported Judgments

Superior Number Sentencing - gross indecency - indecent assault.

[2023]JRC002

Royal Court

(Samedi)

5 January 2023

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden, Ronge, Christensen MBE., Le Cornu and Cornish.

The Attorney General

-v-

D. R.

Sentencing by the Superior Number of the Royal Court, following conviction at Assize trial on 27^th October 2022 on the following charges:

5 counts of:	Procuring an act of gross indecency (Counts 1, 2, 3, 4 and 5).
9 counts of:	Indecent assault (Counts 6, 7, 8, 9, 10, 11, 12, 13 and 14).

Age:  55.

Plea: Not guilty.

Details of Offence:

The Defendant was convicted at trial for abusing his then partner's two teenage daughters.  The offences took place from 2013 to 2019.  

 

The abuse of Miss A began after the Defendant began a relationship with Miss A and Miss B's mother.  He moved into the family home and acted aggressively towards the victims.  He would kick them and grab them by the throat.  In 2012 the victims grandfather died, and Miss A went off the rails.  As a coping mechanism Miss A took up smoking.  She would ask the Defendant to buy her cigarettes for her.  In return for buying cigarettes, or phone credit, the Defendant would get Miss A to perform oral sex upon him.  Miss A was thirteen years old when the abuse began.  The abuse took place in the early hours of the morning whilst her mother and Miss B were asleep.  It happened on practically a daily occurrence and the defendant would ejaculate either over her face or clothing (counts 1-5). 

 

The Defendant would also perform oral sex on Miss A.  He would lick her vaginal area and stick his tongue in.  This would happen in the bedroom or kitchen area (counts 6-8).  

 

The abuse of Miss B took the form of indecent assaults, mainly by groping her breasts.  The abuse also began after the death of her grandfather when Miss B was nine years old.  Whilst play fighting with the defendant he would put his hands up her top and feel her breasts.  On another occasion whilst sat on his knee at his computer desk he put his hand up her shirt and indecently assaulted her.  He would also tweak her nipples.  On another occasion Miss B was in the Defendant's bedroom watching television.  They began play fighting and she tried to get off the bed, but the Defendant pulled her back onto him and he put his hands up her shirt. Miss B shouted for him to get off her.  She told her mother, but he denied it (counts 9 and 10).

 

In 2015 following an argument with the Defendant Miss A told her mother what the Defendant had been doing to her.  He denied it.  Miss A also disclosed to close friends what was happening.  Miss A was spoken to by the Police and Children's Services.  Miss A gave an account of sexual abuse but did not wish to make a formal complaint.  Miss B was also spoken to and did not disclose any abuse.  Miss A at the request of her mother wrote a letter to Children's Services saying that nothing had happened.  

 

Miss A left the family home, but the Defendant continued to indecently assault Miss B.  The Defendant would lift her shirt to feel her breasts and then suck or bite her nipples.  On another occasion whilst Miss B was doing the washing up the defendant put his hands inside her clothing and squeezed her breasts.  When Miss B and the Defendant were sat on the sofa watching a film, he asked her to come closer so he could give her a cuddle.  The defendant ended up on top of her with his hand placed on the area of her vagina over her clothing.  She could feel his penis against her (counts 11 - 13).  The abuse continued until Miss B was 16.

 

In 2021 when Miss A was pregnant she disclosed the abuse to a family member and a discussion ensued within the family as to whether the Defendant had in fact abused Miss A as she had originally alleged in 2015.  As a result of those discussions, the victims' mother contacted the police to report her concerns and a police investigation recommenced, which led to the Defendant being charged, prosecuted and convicted. 

Details of Mitigation:

No relevant previous convictions.  

Previous Convictions:

9 previous convictions for 23 offences although no relevant previous convictions.  

Conclusions:

Count 1:	13 years' imprisonment.
Count 2:	13 years' imprisonment.
Count 3:	13 years' imprisonment.
Count 4:	13 years' imprisonment.
Count 5:	13 years' imprisonment.
Count 6:	8 years' imprisonment.
Count 7:	8 years' imprisonment.
Count 8:	8 years' imprisonment.
Count 9:	4 years' imprisonment.
Count 10:	4 years' imprisonment.
Count 11:	3 years' imprisonment.
Count 12:	3 years' imprisonment.
Count 13:	5 years' imprisonment.
Count 14:	4 years' imprisonment.

Total:                       13 years' imprisonment.

Restraining orders sought under Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008 in the following terms for an indeterminate period:

The Defendant be prohibited from approaching or contacting, directly or indirectly the victims or the victim's children.

An order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 15 years should elapse before the Defendant be permitted to apply to no longer be subject to the notification requirements.  

Restrictive orders sought as set out below for a period of 17 years under Article 10(4) of the Sex Offenders (Jersey) Law 2010. 

1. That the Defendant be prohibited from:

(a)            living in the same household as any female child under the age of 16 unless with the express approval of the Offender Management Unit of the States of Jersey Police;

(b)            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 female child under the age of 16, or finds himself in contact with someone he knows or believes to be a female child 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 provide advance 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. 

Sentence and Observations of Court:

The sentences in respect of the individual complainants should run concurrently, but those concurrent terms should run consecutively to reflect the fact that there were two separate victims. 

If counts 1-5 had been sentenced on their own the appropriate sentence would have been 10 years' imprisonment.  After considering totality the Court reduced the sentence to 9 years' imprisonment on counts 1-5.  The Court also reduced 5 years to 4 years' imprisonment on counts 9-14 to reflect totality. 

Count 1:	9 years' imprisonment.
Count 2:	9 years' imprisonment.
Count 3:	9 years' imprisonment.
Count 4:	9 years' imprisonment.
Count 5:	9 years' imprisonment.
Count 6:	8 years' imprisonment.
Count 7:	8 years' imprisonment.
Count 8:	8 years' imprisonment.
Count 9:	4 years' imprisonment.
Count 10:	4 years' imprisonment.
Count 11:	4 years' imprisonment.
Count 12:	4 years' imprisonment.
Count 13:	4 years' imprisonment.
Count 14:	4 years' imprisonment.

Total:                       13 years' imprisonment.

Restraining orders made as sought.

Ordered the Defendant be subject to the notification requirements for a period of 15 years and the requested restrictive orders for a period of 17 years.

Crown Advocate S. C. Thomas for the Attorney General.

Advocate C. Hall for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        ("D.R."), you are 55 years old and although not a man of good character, you had no relevant previous convictions prior to committing these offences.  You fall to be sentenced having been convicted by the jury of sexually abusing your two step-daughters when they were children. 

2.        You were in a relationship with their mother, ("P") for 14 years.  You met P in 2007.  When you met her, she was a single parent and she thought that you were a kind man who would treat her and her daughters well.  You moved into the house that she shared with her daughters in 2008 or 2009 and had a child of your own with P in 2010.  P said initially the relationship between you and her daughters was fine; but she said that she hated the playfighting which would get out of hand instigated by you, and one of the girls would end up crying.  They would have bruises, having been given dead legs. 

3.        The family was shaken by the death of P's father, grandfather to her children, ("Miss A") and ("Miss B"), in September of 2012.  Miss A was extremely close to her grandfather and was devasted by his death.  P said Miss A was closer to her father than even she had been.  P said that after the death of her grandfather she could see that Miss A was grieving but she was unable to help her daughter.  Miss A, went off the rails and amongst other things took up smoking to cope with the stress of losing her grandfather.  This was a time when she was just 12 years old having been born in [Redacted] 1999.  Miss B was born in [Redacted] 2003 and was 9 when her grandfather died.  

4.        You took advantage of Miss A's addiction to smoking, she being far too young to buy cigarettes for herself, in order to sexually abuse her.  From the age of 13 to just before her 16^th birthday you regularly sexually assaulted Miss A as reflected by Counts 1 to 8 inclusive on the Indictment.  Counts 1 to 5 inclusive represent occasions when Miss A was when aged between 13 and 15 when she was required to perform oral sex upon you.  Counts 6, 7 and 8 represent occasions when you performed oral sex on her.  Miss A told the jury these offences occurred when she was at home either in the kitchen (the oral she was required to perform on you) took place there or in her own bedroom; the oral sex you performed on her was usually carried out there, usually in the early hours of the morning before her mother woke up.  Miss A said that this occurred frequently, but you are to be sentenced only for the offences of which you have been convicted. 

5.        You groomed Miss A.  You began giving her cigarettes then you arranged for her to receive cigarettes and credit for her mobile phone in return for oral sex.  In interview you said you would buy Miss A a packet of cigarettes every four or five days.  As she did not know how to perform oral sex, on the first occasion you told her how she should do it and you would move her head as she performed oral sex upon you.  You would either ejaculate over her face or over her clothing.  She told the jury that she felt 'disgusted at myself' for having done this.  She said that you would wake her up before school and you did so for the purpose of abusing her.  You said that you would stand in the kitchen doorway in order to allow yourself to see if her mother came out of her bedroom.  Miss A said there were a couple of times when her mother woke up to go to the toilet and you pushed Miss A away, pulled up your trousers and would pretend to be having a cigarette by the kitchen window. 

6.        You told Miss A not to tell anyone else otherwise you would get into trouble.  She also told the jury that you were violent towards her, you would playfight with her, then the play fight would become aggressive and she would be punched or grabbed by the throat.  

7.        In respect of the oral sex you performed on Miss A in her bedroom, she told the jury about one occasion that when you came into her bedroom and told her to lie on her bed, pulled down her trousers and inserted your tongue into her vagina.  Miss A felt uncomfortable when you did this and told the jury 'I was telling him to stop, and he just kept going on'.  She said it was disgusting.  In her evidence she: 'I just used to tell him to stop and that it shouldn't be me he should be doing that stuff to.  It should be my mum and he was like 'well, it doesn't matter''.  She said 'He wanted to kiss me a couple of times and I kept saying 'no'.  I never allowed him to but every time he'd try and went for it I just, sort of moved my head in, well, whatever direction, just to move my head so he couldn't'.  She carried on in her evidence saying: 'I was constantly saying 'well, why don't you do this to mum?' because mum was his girlfriend'.  She said both the assaults that she complained of; both the oral sex she was required to perform on you and you assaulting her in her bedroom in the way we have just described, happened 'multiple times'.  Miss A said she could not give exact dates and she wished she had kept a diary. 

8.        You appeared to have secured the children' silence not merely by threats, but by the physically abusive relationship that you had with them and the violence you inflicted upon them.  This was a feature of the relationship you had between yourself and your stepdaughters and was evidence at the trial both by the two girls, adults as they now are, and an independent adult witness ("H").  H said that you were so rough with the children it made her uncomfortable, she said it was not play fighting.  You would trip the children up, pin them down, tickle them roughly and inappropriately.  She said that you spoke to the girls in a shocking, disgusting and degrading manner.  It was not fatherly, and it got worse as the girls got older and more mature.  You would dig your fingers into their ribs and groin and their inner thighs.  You would tickle them in their groin and under their armpits and all over their bodies.  To witness the whole experience was uncomfortable and it would have been inappropriate even for a blood parent.  Miss A once came into the lounge in front of H when she was aged 8, 9 or 10, she was wearing a little nightie and had to walk passed you.  You pulled up her nightie, pulled down her pants and smacked her with your hand on her bare bottom.  H asked you what you thought you were doing; Miss B was sitting by her at the time.

9.        Miss B matured faster than a lot of young girls.  You would comment about her chest which H found shocking, you would comment about her vest tops and her breasts.  Miss B would walk around the flat with her arms crossed over her chest as she was embarrassed by your comments.  You would say to her 'Your tits are showing.'  Sometimes P would tell you to 'Shut up and leave her alone'.  You made hostile and degrading comments to Miss A telling her that she was "fat", "disgusting", "ugly" and "just like [her] mum."  Those comments were made direct to her face.  

10.      In 2015 Miss A told a friend, the police and indeed a social worker about the abuse she had suffered at your hands but was reluctant, owing to her loyalty to her mother, to make a formal complaint.  Her mother refused to believe Miss A's complaint and stood by you, and it was clear from P's evidence to the jury that this was a matter of bitter regret to her today.  It was only in 2021 when P contacted the police that she came to realise that what both her daughters had said about your conduct towards them was true and this led to her terminating her relationship with you. 

11.      Miss B was abused at two separate addresses.  Counts 9, 10, 11 and 12 represent occasions when you touched her breasts with your hands when she was aged 13, 14 and 15.  Count 13, an occasion when you touched her breasts with your hands and mouth when she was of a similar age and Count 14 an occasion when you touched her vaginal area over her clothing. 

12.      The abuse of Miss B began when she was 9 or 10 years old.  She said in her evidence the relationship with you was abusive both physically and sexually.  She said that you would use play fighting and other contact with her to disguise the fact that you were going to indecently assault her.  She said, 'he'd disguise it very well'.  She said, 'I can tell you with the way he tried to approach it, or get away with it, especially in front of mum.  It was more or less disguised as cuddles like with the way he got closer.  He'd even turn round to me and say 'Right, don't shout out mum' 'or tell her that I touch your boobs because I can get in a lot of trouble and I'm not allowed''.  This would occur either in her parents' bedroom, by which she meant yours and her mother's or in the lounge.  As to the physical aggression, she said that you were very aggressive towards her.  She said 'He'd give us a kick, he'd kick or punch us, or give us dead legs or smack our bums or smack our hands or even smack us at the back of the head.  It was just really bad'.  She said, 'He'd like physically kick us until we went into our room.  Like kick us and follow us and keep kicking until we went into our room.  So, we were physically running away from him.  I think that's when I'm sort of realising that's how he got away with being more dominant'. 

13.      As to the indecent assaults, she said that you would sit her (Miss B) on your knee when you were at your desk.  You would put your hands up her shirt, tweak her nipples and massage and cup her breasts against her bare skin.  Your behaviour towards her become more sexual the older she got.  On one occasion her mother walked in and Miss B told her mother that you had been touching her breast, but you denied it. 

14.      When the family moved from the flat to the house after 2015, sometimes Miss B would be washing dishes in the kitchen and you would brush past her and grab her breasts, putting your hands up her top and massaging them.  Sometimes she would be wearing a dressing gown and pyjamas.  She said 'It was very quick.  But obviously enough time for him to get what he wanted'.  On three or four occasions you tackled her to the floor, pinned her down, lifted up her skirt and bra and licked, bit and sucked her breasts including her nipples.  Once you left bruises.  This happened in the sitting room and Miss B found it disturbing.  This abuse took place after Miss A had made her allegations in 2015 and of course those allegations had not gone any further.  Accordingly, Miss B felt there was no point her complaining because she would not be believed.  In evidence she said that when the police came to see her at school in 2015 she was too young to know what was happening to her and was probably trying to protect you. 

15.      You took an unnatural interest in Miss B's clothing.  You told her not to wear joggers because they were not tight enough.  She said that you gazed at her breasts all the time and involved yourself in buying bikinis for her, even helping her putting on a new bikini - a pretext to cup her breasts.  You told her to buy revealing bikinis of a particular colour.  She said, 'It was like he was trying to prepare me'.  You bought her underwear - thongs - which she regarded as inappropriate.  At a family barbeque when she was wearing a white top, you unzipped the zip to reveal more of her breasts and told her to show 'a bit of cleavage off'.

16.      On one occasion, represented by the last Count on the Indictment, Miss B was sitting on the sofa with you, you were resting your hands between her legs over her clothing in the area of her vagina.  She was made to sit on you with her bottom resting on the area of your groin.  She could feel your penis under her.  You applied pressure to the area between her legs and you said you were feeling her pulse.  The jury found this was an indecent assault. 

17.      Miss A became pregnant in 2020 and told a family friend what you had done to her.  She did not wish her unborn child to be in any danger from you.  Early last year Miss A asked Miss B if anything had happened to her.  Miss B told the jury that she did not want to say anything, but she nodded yes.  Miss A was overwhelmed and began crying. 

18.      In Miss A's statement made to the police subsequent to your conviction, she speaks about the psychological effect of the abuse upon her.  She said that the experience of being branded a liar in 2015 affected her terribly, particularly the fact that her mother did not believe her.  She had been sexually assaulted by you, but no one in her close family believed her.  Her personal relationships have been affected; with friends; family and partners.  She found the experience of giving evidence before the jury petrifying because she feared that she would not be believed. 

19.      Miss B, in her statement made after your conviction said that you made her extremely body conscious which created various difficulties for her as she grew up.  She was aware of certain parts of the body at an early age that other children were probably unaware of because of your focus on those intimate parts.  She lives at the home where you abused her.  Her relationships and friendships have been affected.  She struggles to hug her mother.  She found the experience of giving evidence very stressful and felt that she was the one on trial.

20.      We have considered the reports prepared by the psychologists who have interviewed both Miss A and Miss B.  The psychological report prepared in relation to Miss A indicates that the abuse suffered by her has been severe and she suffers from post-traumatic stress disorder.  She has a lifelong diagnosis of complex trauma.  She now suffers from moderate psychological harm but suffered extreme psychological harm from 2015 until her account was accepted by the jury some seven years later.  The psychologist says that the most significant impact on her psychological wellbeing is the issue of not having been believed when Miss A first disclosed the abuse and the events that transpired thereafter. 

21.      The expert says, 'The the damage done to young people who disclose and are not believed is well documented.  Statistically, young people who disclose and are believed and protected from the perpetrator are less likely to be predisposed to mental health difficulties in adulthood.  Those who are not believed, or adequately protected, or made to feel that they are to blame / or left with feelings and thoughts of self-blame are more likely to suffer difficulties that warrant clinical intervention in adulthood'.  Miss A was not believed, she was unprotected and has suffered in consequence. 

22.      We have read the pre-sentence report in this case the references submitted on your behalf, and listened with care to what counsel have said on your behalf today.  We have considered the culpability for this offending and the harm that resulted.  Both were, in our view, high.  In respect of culpability, as to the first 8 Counts of the Indictment we have had regard to the following factors:

(i)        You groomed Miss A.  You gave her cigarettes, mobile phone credit and in return you expected oral sex, and you instructed her on how to perform that upon you. 

(ii)       This was a gross breach of trust; you were her stepfather and she was in your care at the time. 

(iii)      There was a substantial age gap of 32 years at the time of the offending. 

(iv)      You targeted Miss A when you knew that she was vulnerable following the death of her grandfather.  You also targeted her because, owing to the breakdown in her behaviour partly as a consequence of the death of her grandfather, you felt that she would not be believed if she complained.  This turned out to be the case when at the age of 16 in 2015 she complained about your behaviour.

(v)       As to the harm suffered by Miss A, these were offences of penetration of the vagina and penile penetration of the mouth with ejaculation, and Miss A also suffered extreme psychological harm in the way that we have described.

23.      There are further aggravating features present in your offending against Miss A as follows:

(i)        The offending took place in her home, including her own bedroom, where she was entitled to feel safest.

(ii)       The timing of the offence; the offending began when she was grieving for her grandfather and took place in the morning when you woke her up for the purpose of abusing her whilst others slept in the flat.

(iii)      The abuse took place over a significant period of some 2½ years.

(iv)      As a consequence of the abuse, Miss A was forced to leave home, initially to stay with a friend and their family and ultimately, permanently.

(v)       You told Miss A not to tell anyone in order to stop her from reporting, and when she did complain you were instrumental in portraying her as troubled and out of control.  Both counsel agreed that this would be (by way of comparator and reference only) a category 1A case pursuant to the relevant English guidelines for sexual activity with a child. 

24.      Many of these factors are of application in relation to the abuse against Miss B.  In relation to that abuse to your culpability is high;

(i)        Miss B was groomed.  You indecently assaulted her while she was sitting on your knee, playing on a computer or when you were purporting to playfight with her.

(ii)       This was a breach of trust.

(iii)      The assaults were accompanied by additional humiliation in terms of comments about her body, including in front of third parties.

25.      As to aggravating features, we identify:

(i)        That you targeted a vulnerable child, she was only 9 or 10 years old when the offending began, and she was also subsequently further made vulnerable when she had seen Miss A's complaints fall upon deaf ears and would have felt isolated in the way described by the police officer who attended the house in 2015. 

(ii)       As with Miss A, the offences took place in her home where she was entitled to feel safe, and over a lengthy period. 

(iii)      Miss B is also suffering from post-traumatic stress disorder symptomology although not on the same scale as Miss A.  Both counsel agree that this would (by comparator only) amount to a Category 2A offence under the relevant English guidelines for sexual assault and the sexual assault of a child.

26.      We have no doubt the appropriate sentence in this case is a substantial custodial term. 

27.      In the recent years the Royal Court has recognised that sentences for sexual offending against children need to reflect not only the revulsion of right-thinking members of society regarding such conduct, but also the damage that is done to children and the long-term effect upon them of being abused in their home by people they look to protect them.

28.      We have taken into account all the authorities placed before us, particularly the previous decisions of the Royal Court.  But as noted in the case of AG v B [2019] JRC 049, while consideration of other cases can give a general level of sentence, the facts of each case are different.  No case is identical to any other and therefore individual judgment has to be applied to each case. 

29.      We have considered whether the sentences in this case should be consecutive or concurrent as between the two complainants, and we note at paragraph 17 of the same judgment the Court said:

"While there is nothing wrong in principle in passing consecutive sentences to reflect that there are different complainants, and that is often done, all sentences are subject to the totality principle, where a Court having decided the individual sentences has to stand back and ask whether the consequent total sentence is too long."

30.      We also note in that case that evidence was given of a defendant who got his way by using his position as a forceful and dominant person and that is a feature of this case too. 

31.      We have decided that in respect of the offences committed against Miss A and Miss B respectively, that the sentences should be concurrent in respect of the particular victim.  But as the Court is considering two quite separate individuals who were subjected to separate assaults and have separately suffered harm for which you are responsible, we have no doubt that on the facts of this case it is appropriate and necessary to mark the offending by imposing consecutive sentences in relation to the offences committed against Miss B.

32.      We note that you are at moderate risk of sexual reconviction; that you demonstrate no remorse and have disdain for your victims.  We agree that a restraining order should be made prohibiting you from contacting directly or indirectly Miss A and her daughter, and Miss B for an indeterminate period.

33.      As to the Sex Offenders (Jersey) Law 2010, we order that a period of 15 years should elapse before you be permitted to apply to be no longer subject to the notification requirements.

34.      We are also satisfied that you pose a threat of serious sexual harm and that it is necessary to make restrictive orders in the terms sought by the Crown under Article 10 of the 2010 Law, and we make such orders for a period of 17 years.

35.      Finally, we turn to sentence:

(i)        Counts 1 to 5; we observe that had the allegations made by Miss A stood alone we would have sentenced you to 10 years' imprisonment on those counts.  Having regard to the principle of totality we impose a sentence of 9 years' imprisonment, concurrent, on Counts 1 to 5 inclusive.

(ii)       On Counts 6 to 8 inclusive - we impose a sentence of 8 years' imprisonment concurrent.

(iii)      On Counts 9 to 14 inclusive - the counts concerning Miss B, we have reduced the Crown's conclusions from 5 years to 4 years at Count 13 to take into account the principle of totality.  But those sentences on each count are 4 years' imprisonment concurrent with each other but consecutive to the sentences on Counts 1 to 8 inclusive, making a total of 13 years' imprisonment. 

36.      I invite the press to allow 30 minutes for the complainants to be notified before publication of this case.

Authorities

Sex Offenders (Jersey) Law 2010.

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

AG v B [2019] JRC 049.

K v AG and AG v F [2016] JCA 219.

AG v T [2016] JRC 001.

AG v W [2018] JRC 061.

AG v D [2018] JRC 109.

AG v F [2019] JRC 182.

AG v Carrel [2019] JRC 130.

Sentencing Council Guidelines - Sexual activity with a child/causing or inciting a child to engage in sexual activity

Sentencing Council Guidelines - Sexual assault

Sentencing Council Guidelines - Sexual assault of a child under 13

Whelans' Aspects of Sentencing