Jersey Unreported Judgments

Superior Number Sentencing - Sexual touching - sexual offences - indecent photographs

[2023]JRC058

Royal Court

(Samedi)

17 April 2023

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Christensen M.B.E., Entwistle, Thomas, Pitman and Ramsden

The Attorney General

-v-

F

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 3^rd February 2023, following a guilty plea to the following charges:

1 count of:	Sexual touching of an older child, contrary to Art 11(3) of the Sexual Offences (Jersey) Law 2018 (Count 1).
1 count of:	Causing a sexual act with an older child, contrary to Art 12(1) of the Sexual Offences (Jersey) Law 2018 (Count 2).
6 counts of:	Taking indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 3, 4, 5, 6, 7 and 8).

Age:  39

Plea: Guilty. 

Details of Offence:

Sexual touching offences

The Defendant was married to the Victim's mother ("the Mother").  The Victim is not the biological child of the Defendant but considered him the closest thing to a father that she had.

 

The Victim, who has never met her biological father, states that the Defendant was like a father to her.  However, since she was about 15 years old, their relationship had changed with the Defendant starting to ask her inappropriate questions, including asking if she masturbated, if she had had sex, and questioning her sexuality, all of which made her uncomfortable.  He also began to be, in her word, "touchy", for example slapping her thigh.

 

In December 2021, the Mother reported to the police that the Defendant had sexually abused the Victim.  The same day, the Victim gave an ABE interview.

 

In April 2021, one night that month (when the Victim was 15) the Defendant, whilst intoxicated, entered the Victim's bedroom.  The Victim was asleep. The Defendant started caressing her leg and then touched her breasts.  He moved his hand down her stomach and then touched her vagina (Count 1).

 

On a date between 1 June 2021 and 1 September 2021, the Defendant again entered the Victim's bedroom.  The Victim woke up to her left hand moving up and down the Defendant's penis, he was holding her hand and controlling it.  The Defendant's penis was erect.

 

Indecent images offences

When the Defendant was arrested in relation to the sexual touching offences, his mobile phone was seized and examined.  A number of images of the Victim were found on the phone, several of which were indecent images of Categories B and C.  Also found on the phone was a WhatsApp chat between the Defendant and a correspondent in which they discussed putting hidden cameras in a woman's house and spying on schoolgirls.  The Defendant was further arrested and laptops a further phone and a micro-SD card were seized and examined.  A total of 21 indecent images of the victim were found, three of which were movies.

Details of Mitigation:

Guilty pleas, albeit the plea to Count 2 was not entered on first appearance. No previous convictions.

Previous Convictions:

None.

Conclusions:

Count 1:	2½ years' imprisonment
Count 2:	4 years' imprisonment, concurrent to Count 1 but consecutive to Counts 3 to 8..
Count 3:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 4:	Starting point: 6 years' imprisonment.  2 years' imprisonment, concurrent (would have been 3½ years' imprisonment but for totality).
Count 5:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 6:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 7:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 8:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.

Total:  6 years' imprisonment. 

Sentences in relation to the indecent images counts were reduced for totality, the Crown submitted that it was appropriate to apply any discount to these offense so that the sentences for the contact offences properly reflected the Defendant's behaviour.

Order sought under the Sex Offenders (Jersey) Law, 2010 that a period of 10 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence.

Restrictive Orders sought, to run from the date of sentence for a period of 8 years, under Article 10(4) the Sex Offenders (Jersey) Law 2010 relating to devices and their inspection, a prohibition on contact with the Victim, a prohibition on being alone with under-16s, a prohibition on owning covert recording devices, and a prohibition on going to any mixed sex school except by appointment.

Forfeiture and destruction sought of the devices on which the indecent images were found.

Forfeiture and destruction sought of the seized hidden camera items.

No recommendation for deportation sought.

Sentence and Observations of Court:

Count 1:	2½ years' imprisonment
Count 2:	4 years' imprisonment, concurrent to Count 1 but consecutive to Counts 3 to 8.
Count 3:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 4:	Starting point: 6 years' imprisonment.   2 years' imprisonment, concurrent. (would have been 3½ years' imprisonment but for totality).
Count 5:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 6:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 7:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.
Count 8:	Starting point 3 years' imprisonment.  21 months' imprisonment, concurrent.

Total:  6 years' imprisonment.

Order made under the Sex Offenders (Jersey) Law, 2010 that a period of 10 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence.

Restrictive Orders made, to run from the date of sentence for a period of 10 years, under Article 10(4) the Sex Offenders (Jersey) Law 2010 with the conditions sought by the Crown above.

Forfeiture and destruction of the devices on which the indecent images were found ordered.

Forfeiture and destruction of the seized hidden camera items ordered.

Recommendation for deportation made.

Ms L. B. Hallam, Crown Advocate.

Advocate N. Miere for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are 39 years old and were 37 when you committed the offences at Counts 1 and 2 of the Indictment. 

2.        The offences to which you have pleaded guilty at Counts 1 to 8 of the Indictment concern offences committed by you, against or in connection with your step-daughter when she was under the age of 16.  You began a relationship with the child's mother in 2012, you moved to Jersey together in 2015 and married in 2017.  Your victim regarded you as the father figure in her life and she had never met her natural father.  Indeed, her surname was changed to yours when she was about 8 years old.

3.        We will deal with the contact offences at Counts 1 and 2 before considering the indecent image charges at Counts 3 to 8 inclusive, even though many of those offences were committed before the contact offences.

4.        The offences at Counts 1 and 2 both took place in 2021 when the child was 15 years old. 

5.        As to Count 1, in April 2021 you entered the child's bedroom when you were intoxicated through alcohol and she was asleep.  She woke to find you indecently assaulting her - caressing her leg, touching her breasts through her clothing and touching her vulva over her shorts.  She asked you what you were doing when she felt you trying to pull down her shorts.  She was upset and she cried for an hour because you were "the closest thing I ever had to a dad".

6.        The offence at Count 2 was committed later the same year between June and September 2021.  Again you entered the child's bedroom at night when she was asleep.  She awoke to find you using her left hand to masturbate your erect penis when your trousers were down.  You had control of her hand, using her hand with yours to masturbate your penis.  She felt disgusted and later washed her hand.

7.        The child told her mother in December and she gave a video interview to the police about these matters.

8.        You were arrested.  You initially denied the allegations and said that the child was lying.  When asked about your sexual preferences you said, "everyone is attracted to teenage girls".  Subsequently, in March 2022, you voluntarily attended the police station and in effect said that you had no reason to disbelieve what she had said but you could not recall owing to your alcohol consumption.

9.        By now, examination of items seized from your home and attributable to you had yielded indecent images of the child and these included video images.  You had covertly, without knowledge of the child or her mother, installed hidden cameras in the home in order to obtain footage of the child for your own sexual pleasure and today your counsel said you had no good or innocent explanation for installing this cameras, which you did in the bathroom of two homes that you occupied, and in the child's bedroom.

10.      An examination of two laptops, a mobile phone and a storage card yielded twenty one indecent images of the child, three of which were movies. 

11.      Count 3 was material filmed in the bathroom of the child's previous home by way of a covertly installed hidden camera.  This was a category C moving image of the child when she was, as all these offences are, under the age of 16 and this was filmed when she was aged between eleven and thirteen.  The film shows the child naked, lying in the bath washing herself.

12.      Count 4 is the most serious of the image offences as this represents five Category B images of the child taken when she was approximately 14 or 15 years old and it shows you pulling her underwear aside exposing her naked vulva while she was in bed asleep.

13.      Count 5 represents four Category C images showing the child with her t-shirt pulled up exposing her breasts while she was in bed asleep.

14.      Count 6 relates to a number of Category C images, nine in total, of the child, five of her lying in her bed with her t-shirt pushed up just under her breasts; two with her t-shirt pulled up to expose her breasts, and two lying on her stomach, again she was asleep.

15.      Count 7 and Count 8 relate to footage taken by you on covertly installed hidden cameras, one in Count 7 in the child's bathroom and Count 8 her bedroom.  Count 7 is a movie showing her getting undressed,  Count 8 is a Category C movie showing her naked putting on her pyjamas.

16.      You should appreciate how shocked and appalled your step-daughter was to discover that you had carried this out in gross breach of trust. 

17.      When you were further arrested on suspicion of voyeurism and making indecent images of children, you made no comment in interview and you lied; you denied installing hidden cameras. 

18.      However, you pleaded guilty to all offences (save for Count 2 where you pleaded not guilty at the first opportunity) on 29 December 2022, and you indicated that you would plead guilty to Count 2 on 30 January 2023 and did so on 3 February 2023 on your first appearance before the Royal Court.  Accordingly, you will receive full credit for your pleas of guilty to Counts 1 and 3 to 8 inclusive, and substantial, although not full, credit for your plea of guilty to Count 2, knowing as we do that your victim was told of that not guilty plea and for some weeks believed that she was going to have to give evidence in court against you. 

19.      It goes without saying that these are grave offences and notwithstanding your pleas of guilty and previous good character you must expect and do expect a substantial custodial sentence.

20.      We have read the Victim Personal Statement.  She was scared, confused and let down by what you did.  She still does not know what the images of her show and we invite the media to take particular care when reporting this aspect of the matter.

21.      We have had regard to the guidelines in England and Wales for the offence of sexual activity with a child for the purpose only of considering the factors relevant to culpability and harm.  Neither side has suggested that we should consider these guidelines for the purpose of evaluating the sentence that would have been imposed in England and Wales on facts such as this.  Of course, following the decision of the Royal Court in AG v Vieira [2021] JRC 293 and the recent decision of the Court of Appeal in W v AG [2022] JCA 117 the Jurats are entitled to consider such guidelines for that purpose if they so wish but the Jurats did not think it appropriate to do so in this case so they looked at the guidelines solely for the purpose of considering the culpability and harm factors.

22.      In relation to culpability and harm, having regard to those guidelines the Jurats noted that in this instance in respect of those particular guidelines this would have been a Category 2 case owing to the touching of naked genitalia by the victim and the highest case culpability Category A owing to the abuse of trust and the significant disparity in age. 

23.      Furthermore there are several aggravating features relevant to the offences at Counts 1 and 2 in addition to this being a gross breach of trust. 

(i)        Although of course the child could not in law consent to these offences, they were in fact offences that took place against her will and without her knowledge - they began when she was asleep;

(ii)       the child was targeted in the place where she was most vulnerable and where she was entitled to feel safest - asleep in her own bedroom. 

(iii)      the offending was repeated over the course of two incidents, with the second being more serious.

(iv)      you were intoxicated on at least one of the occasions and told the police that that is why you could not recall the first incident.

24.      As to the image offences, we agree that consecutive sentences are warranted, as indeed did your counsel, although we need to have regard to the principle of totality.

25.      Count 4 involves the taking of Category B images of the child and we agree with the Crown's initial figure of 4 years' imprisonment.

26.      As regards the other Counts, the initial figure proposed is 2 years imprisonment.

27.      These initial figures need to be adjusted to reflect aggravating features in this case including:-

(i)        the period over which the images were taken, namely in excess of two years;

(ii)       these were images of your own step-daughter which is a gross breach of trust.

(iii)      the images included moving images and the circumstances in which the images were taken - taken covertly when the child was in bed at home, alone and entitled to feel safe.

28.      In the circumstances, we agree with a starting point before discount for guilty plea of 6 years at Count 4 and 3 years in Counts 3 and 5 to 8 inclusive.

29.      We have considered with care all that has been said on your behalf.  You are at medium risk of reconviction and elevated risk of sexual reconviction.  You have problems with sexual self-regulation and attitudes which may support further offending. 

30.      This was, on any view, an appalling catalogue of abuse.  Initially you took covert pictures and moving images of the child by installing secret cameras in her bedroom and her bathroom.  This escalated to sexual abuse, and as can be seen, the offending at Count 2, the last offence you committed, was even more serious than the serious offence you committed at Count 1.  Children are entitled to be protected from people like you and people like you need to be deterred from behaviour in this way.  We agree with the Crown that it was difficult to conceive of a more serious breach of trust.

31.      Accordingly we have no hesitation in granting the Crown's Conclusions. 

(i)        Count 1, the sentence is 2½ years' imprisonment.

(ii)       Count 2, 4 years' imprisonment, concurrent to Count 1 but consecutive to:-

(iii)      Count 3, 21 months' imprisonment from a starting point of 3 years.

(iv)      Count 4, 2 years' imprisonment, from a starting point of 6 years.  The sentence would have been 3½ years on that count but for totality.

(v)       Count 5, 21 months' imprisonment, from a starting point of 3 years.

(vi)      Count 6, 21 months' imprisonment, from a starting point of 3 years.

(vii)     Count 7, 21 months' imprisonment, from a starting point of 3 years.

(viii)    Count 8, 21 month's imprisonment, from a starting point of 3 years.

Making a total of 6 years' imprisonment. 

32.      We order the forfeiture and destruction of the devices upon which the images were found and the seized hidden cameras.

33.      We make an order that the notification period under the Sex Offenders (Jersey) Law 2010 is 10 years.  Accordingly 10 years must elapse before you may seek to have the notification requirements disapplied.

34.      In the circumstances, having regard to the facts of this case and the decision in AG v Nobrega [2012] JRC 182 we make the restrictive orders sought by the Crown for the period of 10 years, not the 8 years sought, having found on the balance of probabilities that you pose a threat of serious sexual harm and that such an order is necessary in these circumstances.  We make the order in the terms sought by the Crown.

35.      Finally, the Crown has asked the Court to consider the question of deportation.  You are a Polish citizen and thus liable for deportation.

36.      We have considered the two stage test in Camacho v AG [2007] JLR 462.  As to whether or not your continued presence in the island is detrimental, the first stage, there can be no doubt that that is the case and both counsel are agreed on that point.  .

37.      As to the second part of the test, we need to balance our findings on the first stage with your human rights and those of your family, having regard in particular to Article 8 of the European Convention on Human Rights, as incorporated into our domestic law.  You have lived in Jersey since 2015, a period of 8 years.  The mother of the child, and indeed your two children aged 8 and 2, is seeking a divorce from you.  You have no accommodation in the island and no employment, as your business has failed.  Although you have not seen your two children for some five months we understand from an email received in retirement from your counsel that you now have letter contact with your children which, subject to review by the prison authorities and presumably the Children's Service, may progress into video contact and perhaps in person contact.  Nonetheless we make our decision on deportation on the evidence as it is today and our view is that, notwithstanding the circumstances of your children and yourself, that the balancing exercise in this case falls down in favour of recommending your deportation and that is the recommendation we make.  We only add that if at the time of the conclusion of your prison sentence the relationship between you and your children is a strong with regular in person contact and that is a matter that the Minister ought to consider, having regard to the recommendation that we have made. 

Authorities

AG v Vieira 2021 JRC 293

W v AG [2022] JCA 117

Sex Offenders (Jersey) Law 2010. 

AG v Nobrega [2012] JRC182

Camacho v AG [2007] JLR 462. 

Sexual Offences (Jersey) Law 2018

Protection of Children (Jersey) Law 1994

AG v S [2017] JRC 194A

AG v S [2017] JRC 165

AG v Alves [2022] JRC 241

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

AG v T [2017] JRC 169

AG v Godson and Crowley [2013] (2) JLR 1

AG v Nobrega [2012] JRC 182

Sentencing Council Guidelines - Sexual Assault

Sentencing Council Guidelines - Causing a person to engage in sexual activity without consent.

National Police Chief's Council - Sentencing Council Levels for Illegal Images Of Children (IIOC)