Jersey Unreported Judgments

Breach of a restraining order, contrary to Article 10(13) of the Sex Offenders (Jersey) Law 2010.

[2023]JRC191

Royal Court

(Samedi)

20 October 2023

The Attorney General

-v-

Y

Sentencing by the Superior Number of the Royal Court, following guilty pleas to the following charges:

Age:  31.

Plea: Guilty.

Details of Offence:

On 15 June 2017, the Defendant was sentenced to a period of imprisonment for incest.  He was made subject to restrictive orders, which included prohibiting him from being alone with any female he knows or believes to be under the age of 16 years.  He would be considered to be alone if there is not present an adult over the age of 21 years who is aware of his offending history.

The Defendant breached the order on three separate occasions in July 2023 by being in the company of the same 15 year old girl on each occasion.

On 15 July 2023, the Defendant is seen on CCTV entering a supermarket closely followed by the girl.  The Defendant is seen to pause in the doorway, before leaving the shop.  He is approached by the girl, and they have a brief conversation, before walking away together.

On 20 July 2023, the Defendant was seen on the top floor of Patriotic Street car park, in the stairwell, by a man who worked for the Shelter who had known the Defendant for approximately three years.  The Defendant was with the girl, who was lying down on her side, with her back to the witness.  The Defendant stood up and appeared "cagey".

On 27 July 2023, the Defendant was seen again in the stairwell of Patriotic Street car park, by another member of staff from the Shelter.  The Defendant had his trousers around his ankles but was otherwise fully clothed.  Seated behind the Defendant was the girl, with her knees tucked into her chest.  The witness was aware of the Defendant's restraining order and they called the Police.

In interview, the Defendant accepted that he was aware that his contact with this girl was in breach of his restraining order as he knew that she was 15 years old.

Details of Mitigation:

Guilty plea and cooperative with Police investigation.

Previous Convictions:

The Defendant had 34 previous convictions, one for unlawful sexual intercourse with a girl under the age of 16 years and one for incest.  The restraining order which the Defendant breached was imposed as a result of the incest offence. 

Conclusions:

Total:  21 months' imprisonment.

Notification Order sought for a period of 7 years.

Restraining Order sought for a period of 7 years. 

Breach of two Probation orders which the Crown seeks to revoke. 

Threatening words.  No separate penalty.

Malicious damage. No separate penalty.

No order is sought for costs.

Sentence and Observations of Court:

Conclusions granted.

Ms C. L. G. Carvalho, Crown Advocate

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE lieutenant BAILIFF:

1.        Sit down please.

2.        ("Y") your 34 previous convictions include one of unlawful sexual intercourse with a girl under the age of 16 and, the following year in 2017, one of incest with a girl then aged 14. 

3.        For the latter offence you were sentenced to four and a half years' imprisonment, and in addition the sentencing court imposed a Restraining Order upon you, prohibiting you from being alone with any female person whom you know or believe to be under the age of 16 years.

4.        Despite this Order, indeed in flagrant breach of it, you have been alone on three occasions earlier this year with a girl whom you admit to knowing is only 15 years old.

5.        On the first occasion you were in a supermarket together and on both the second and the third occasions in a multi-storey car park.  You told the Probation officer that your interest in the girl was not sexual, but we think that this claim does not lie at all comfortably with the fact that on the second occasion you were seen in the car park your trousers were around your ankles. 

6.        Restraining Orders are not a punishment.  They are there to protect our children from serious sexual harm.  They exist in order to reduce the risk to young persons that convicted sex offenders would otherwise pose to them.  It seemed to the Probation officer that you might not have quite grasped this when she was speaking to you; we sincerely hope that you understand it quite clearly now.

7.        Attorney General v G [2011] JRC 214 was the first case in Jersey involving the breach of a Restraining Order.  At paragraph 4 the then Bailiff, Sir Michael Birt, said this:

"For a person who poses such a risk then to flout the order of the Court is, in our judgment, very serious. ... A strong message therefore needs to be sent that offenders must take all reasonable steps to avoid breaching their order."

And at paragraph 5 he continued:

"Furthermore, the probation report prepared for us in this case suggests that there is a view among offenders of this nature that breach of a restraining order is not a matter which will be taken particularly seriously. We wish to make it clear that that is not the case and to disabuse any persons who hold such a view. For the reasons we have given, we consider that breach of a restraining order will be treated seriously and in most cases is likely to result in a prison sentence, certainly if there is any deliberate breach of any significance."

8.        We respectfully agree.  Breach of Restraining Orders is a very serious matter as indeed is evidenced by the fact that the maximum sentence, even for a single breach, is one of five years' imprisonment. 

9.        The Crown contends, and we accept, that these were not technical breaches.  You were acting entirely voluntarily.  You know and you knew then that you were under a positive duty not to be in the company of any girl under 16 years of age.  One of the witnesses describes you as having "looked like a deer in the headlights".  You knew that what you were doing was wrong.  These were deliberate breaches, and they were of significance. 

10.      We note from the pre-trial report that you are considered to be at high risk of re-conviction.

11.      In mitigation you were cooperative with the police, and you admitted your guilt at a very early stage.  In addition, there is no evidence of actual harm to Miss X or that any sexual contact occurred.  Your Advocate has made a powerful address to us and urged us to impose a Probation order - a very special form of Probation order.  But we are unable to do that.  There must be a custodial sentence.  In a case of this nature it is more or less inevitable. 

12.      As there are three separate and distinct breaches of the Restraining Orders involved here it would be normal for us to impose consecutive sentences, but this would involve a total sentence that would be too long.  Accordingly, we are asked to impose concurrent sentences, adopting the approach that counts 1 and 2 of the Indictment are aggravating features of count 3.  We are content to adopt that approach.  The prosecution moves for a total sentence of 21 months' imprisonment and in our judgment that is right. 

13.      The sentences are therefore as follows:  would you stand please.

(i)        Count 1, 18 months' imprisonment.

(ii)       Count 2, 18 months' imprisonment, concurrent.

(iii)      Counts 3, 21 months' imprisonment concurrent.

(iv)      Thus, making a total of 21 months' imprisonment in all.

(v)       You are also in breach of two Probation orders.  The Crown moves that in the circumstances it would be appropriate to revoke them.  We agree and so order.

(vi)      There will be no order as to costs.

We urge you to take full advantage of all the help and support you can get during your time at HM Prison La Moye and make this time as positive as you possibly can.  

Authorities

Sex Offenders (Jersey) Law 2010.

AG v G [2011] JRC 214.

AG v Facchino [2020] JRC 093.

AG v Facchino [2020] JRC 113.

AG v Gassula-Sole [2018] JRC 122.

R v Smith [2011] EWCA Crim 1772.

AG v Y [2017] JRC 093.