Jersey Unreported Judgments

Superior Number Sentencing - rape

[2023]JRC044

Royal Court

(Samedi)

17 March 2023

Before     :

Sir John Saunders, Commissioner, and Jurats Ronge, Austin-Vautier, Cornish, Opfermann and Blampied

The Attorney General

-v-

E

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial on the following charges:

3 counts of:

Rape, contrary to Article 5(1) of the Sexual Offences (Jersey) Law, 2018 (Counts 1, 2 and 3).

Age:  28.

Plea: Not guilty.

Details of Offence:

The Defendant was convicted of three counts of rape, following a five-day assize trial.  The offences were committed against his former partner.

 

The Defendant and the victim were in a relationship for around three months in total.  The relationship was good at the very outset but a short time into it the Defendant became progressively more controlling.  This included verbally abusing her and attempting to cut her off from her family and friends. 

 

Whilst the couple had an active sex life, the victim's evidence was that the Defendant was keen to have anal sex whilst she did not want to.

 

In March 2021 the victim was admitted to hospital and discharged a few days later.  She was drowsy and under the influence of strong painkillers.  On the night she was discharged the Defendant had sexual intercourse with the victim.  Despite her drowsy state, there was no suggestion that this was anything but consensual.  However, on this occasion the Defendant went on to insert his penis briefly into the victim's anus, she protested immediately, and he withdrew. Unbeknown to her the defendant filmed this incident on his mobile telephone.  The Defendant produced this footage at trial in support of his case that the victim was willing to have anal sex.  The victim only became aware of the existence of the video in the weeks leading up to trial.  The video was shown to the court and jury several times in order to determine the live issue of whether the victim could be heard to protest at the point of anal penetration.  Although not a count on the indictment, the use of this evidence at trial and the distress caused to the complainant was an aggravating feature which the sentencing court took into account.

 

The victim told the jury the Defendant's behaviour got worse after she came out of hospital.  He would not allow her to lock the bathroom door, or when she made a phone call it had to be on loudspeaker.

 

Count 1

A week later, the Defendant and victim began having sexual intercourse whilst in her young daughter's bedroom as her daughters were asleep in her bedroom next door. They changed positions so the victim was on her hands and knees and the defendant was penetrating her vagina from behind. He asked whether they could have anal intercourse and she said no.  Intercourse continued and he penetrated the victim's anus with his penis.  She cried out in pain and told the defendant to stop.  He said he slipped.  He continued until he ejaculated into her bottom. Afterwards the defendant falsely claimed that he did not hear the victim say no.  The victim bled from her bottom following the incident and she said she suffered pain for a period of weeks afterwards.

 

Count 2

The second incident happened shortly after the first.  The Defendant and victim were alone in the house together.  She was tired and she told the Defendant she did not want to have sex.  He insisted they that they should, and he began kissing and groping her.  She told him no.  They argued before he pushed her down on to her bed and held both her hands whilst he removed her trousers.  She tried to fight him off.  He ripped her leggings and knickers off and he then inserted his penis into her vagina. She told him no and he laughed and said she did not mean it.  He continued until he ejaculated.  He told her she was his property, and he could do what he wanted with her.

 

Count 3

The third incident occurred following an argument between the defendant and the victim's ex-partner who had attended the victim's home to collect their children for contact.  After the ex-partner left the house, the victim went to her bedroom and the Defendant followed.  They laid on the bed and the Defendant tried to initiate sexual intercourse, but the victim said no.  He proceeded to wrap his arms and legs around her body.  She fought to escape his grip, but she failed.  He pulled his trousers and pants off and had sexual intercourse with her.  She told him no, and to get off and to stop.  He continued until he ejaculated.

 

The aggravating features in the case were the location of the offences, ejaculation, and presence of others (Count 1).

Details of Mitigation:

Good employment history.

Previous Convictions:

11 previous convictions for 33 offences including a history of failing to comply with Court orders.

Conclusions:

Count 1:	11 years' imprisonment.
Count 2:	11 years' imprisonment, concurrent.
Count 3:	11 years' imprisonment, concurrent.

Total:  11 years' imprisonment.

Order sought under the Sex Offenders (Jersey) Law, 2010 that a period of 14 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence. 

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

That the Defendant be prohibited from approaching or contacting, directly or indirectly, the victim and her children. 

Sentence and Observations of Court:

Count 1:	9 years and 6 months' imprisonment.
Count 2:	6 years' imprisonment, concurrent.
Count 3:	6 years' imprisonment, concurrent.

Total:  9 years and 6 months' imprisonment.

Order made under the Sex Offenders (Jersey) Law, 2010 that a period of 13 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence. 

Restraining order made in the terms sought by the Crown for an indeterminate period.

The Court ordered that an application to be brought for an order seeking the forfeiture and destruction of the video of the victim and defendant having sexual intercourse.

S. C. Thomas Esq., Crown Advocate.

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

JUDGMENT

THE COMMISSIONER:

1.        I am going to deal first of all with the notification requirements under the Sex Offenders (Jersey) Law 2010 at Section 2.  We make an order that a period of 13 years should elapse before the Defendant be permitted to apply to no longer be subject to the notification requirements as we consider that to be the proportionate length of time.

2.        We are grateful for the careful exposition by the Attorney General of the facts of this case and the principles of sentencing for offences of rape in this jurisdiction.  We are also grateful for Advocate Dale who appears on behalf of the Defendant for her submissions.

3.        The Court does not intend to set out at any length the principles of sentencing that we have applied as we believe they are clear.  Firstly and importantly the Court has decided what is the appropriate sentence to fit the individual facts of this case.  Every case of rape is different.  Secondly we are entitled to and have taken into account the sentencing guidelines for England and Wales in the following ways.  We have paid attention to the structure of the guidelines.  In this Court's view it provides a logical and structured way to approach any sentencing exercise, in particular we have adopted the separate consideration of harm and culpability and considered the aggravating and mitigating features of the three offences.  Every case, as I have said, is different on its facts so no guideline can or intends to cover every possible permutation of aggravating and mitigating factors. 

4.        Where it comes to the suggested starting points and ranges of sentence in the guidelines, the Court has recognised that, in general,  Jersey courts have regarded those ranges as being appropriate while not feeling bound by them. They have not adopted an unduly mathematical approach which can be the result of a rigid application of the guidelines.  It is important that there should be some guidance as to the length of sentence  to ensure there is consistency in sentencing.  The Court has paid attention to the necessity when considering the guidelines, to avoid the possibility of double counting.

5.        The brief facts are these.  The Defendant and his Victim had a very intense relationship between the beginning of January 2021 and the end of March 2021.  It was physically very intense and at least for the Victim very emotionally intense.  Both parties enjoyed the sexual part of their relationship for the first part of the three month period.  While the Court does consider that the Victim had vulnerabilities as a result of a previous abusive relationship the Court is not satisfied so it is sure, that the Defendant set out from the outset to exploit those vulnerabilities, but it is sure that as the relationship developed the Court is satisfied that he did.

6.        In early March the Victim had to go into hospital for treatment.  It was just before then that she said that the Defendant's behaviour became more controlling.  That continued after she returned from hospital a few days later.  The Defendant had, up until then stayed at her house for about three nights a week because if he stayed longer that could affect the Victim's benefit payments.  He now stayed for five days saying that he needed to be there to assist her with looking after the children and help with household duties.  His controlling behaviour included trying to limit the contact that the Victim was able to have with other people including her family which caused a serious family rift which has even now not been completely healed. 

7.        The Defendant is not charged with controlling behaviour but the Court is satisfied that the offences of rape were part of controlling behaviour on his part.  The Defendant did what he wanted with the Victim despite her protestations. 

8.        We are satisfied that the sentences in this case should be concurrent.  They were part of a course of conduct over a relatively short period of time, but that does mean that the sentence on Count 1 will be increased to reflect the Defendant's overall conduct.

9.        We consider that Count 1 is the most serious charge.  The Victim had made it clear at all times to the Defendant that she was not prepared to have anal sex with him.  She was disgusted at the idea and when he forcibly raped her it was extremely painful and no doubt humiliating.  It happened in her own house while her children were in a next door bedroom.  While that is not, in the Court's view, an abuse of trust in the sense in which that phrase is used in the Sentencing Guidelines for England and Wales, the Defendant was a visitor in the Victim's house and she had every right to expect that he would not behave in that way whilst a guest in her house.

10.      The other two offences are serious.  It was the Victim's right to refuse vaginal sex even though she had consented to it on other occasions and we consider that the Defendant's refusal to take no for an answer was further evidence of his controlling behaviour.  The Defendant pleaded not guilty and had a trial.  That is his right, but it does mean that he gets no discount for plea which would have been significant in a case like this, nor can we give him any credit for any remorse.

11.      We have considered harm and culpability separately.  The evidence shows that the Victim has suffered considerable harm as a result of the Defendant's treatment of her.  That is demonstrated by the Psychological Report in particular, the Pre-Sentence Report and the Personal Statement from the Victim.  The Court considers that the Crown are correct to assess this harm as severe psychological harm rather than extreme psychological harm.

12.      Part of that psychological harm was caused by what happened at the trial.  Any trial for rape will be an ordeal for any victim but it was exacerbated in this case by the showing of a very intimate video taken on the Defendant's phone.  We do not know for sure what the jury made of the incident depicted on the phone, but it is certain that it did not assist the Defendant's case in the end.

13.      The Crown allege that another aggravating factor in the case was that the Defendant conducted himself after the police had been called in a way so as to intimidate the Victim into not making a complaint.  While the Court consider that his behaviour looked at objectively was intimidating, the Court is not satisfied so as to be sure that the reason for it was to frighten her not to make a statement. 

14.      We have considered a number of matters put forward in mitigation including several statements which we have read.  We accept that they are the genuine views of the people who wrote them but we do not consider that they provide any material which would reduce the sentence except in so far as they make clear that the Defendant is a hard worker. 

15.      There is one piece of significant mitigation namely the delay in bringing this matter to court.  That was caused in this way: after being charged the Defendant spent the equivalent of 78 days in custody before the charges were discontinued.  It was a further year before they were recommenced after an appeal process.  We have taken those matters into account in reducing the sentence that the Court will impose, as it is no fault of the Defence that the case was delayed and he spent the equivalent of 78 days in custody.  We have taken 78 days in custody into account in the reduction in sentence so we will not be making further allowance for it. 

16.      Taking all those matters into account the Court has determined that the appropriate sentence on Count 1 is 9½ years' imprisonment, on Counts 2 and 3 there will be concurrent sentences of 6 years.

17.      In addition, the Court will make restraining orders without limit of time which prohibit the Defendant from approaching or contacting directly or indirectly the victim and her children. It is hoped that those orders will provide the Victim with some reassurance for her own safety in the future.

Authorities

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

Sex Offenders (Jersey) Law 2018

AG v F [2019] JRC 182

AG v B [2020] JRC 110

AG v Vieira [2021] JRC 293

English Council Sentencing Guidelines - Rape.