Jersey Unreported Judgments

Superior Number Sentencing - Indecent assault - procuring an act of gross indecency - rape - grave and criminal assault - reasons explaining the sentence of the Court.

[2024]JRC021

Royal Court

(Samedi)

23 January 2024

Advocate S. C. Thomas for the Attorney General

Advocate M. P. Boothman for the Defendant

judgment

the bailiff:

1.        On 13 November 2023, this Court sat to sentence ("Q") ("the Defendant") with regard to twenty-eight counts of serious sexual assault ranging from indecent assault, procuring an act of gross indecency, grave and criminal assault and rape, all perpetrated against the same child, his daughter, then aged between six years of age and fourteen years of age.  At the time of the sentencing, we said that we would provide reasons explaining the sentence of this Court.  These are those reasons.

Facts

2.        The facts underpinning this sentence were set out in full by the Crown.  They can perhaps be simply summarised, however, by quoting from the first paragraph of the Crown's summary of facts as follows:

"The Defendant subjected his youngest daughter to sustained and regular sexual abuse over a period of eight years.  It started when she was six years old and continued until she was fourteen years old.  He isolated and groomed his daughter to the point she believed that she could continue living with him - whilst he continued to sexually abuse her.  His actions caused her significant mental distress - she self-harmed and attempted to take her own life whilst living with the Defendant.  She was eventually taken into care, but the Defendant continued to sexually abuse her when she was resident in a children's home.  He is to be sentenced for committing twenty-eight offences against his daughter (twenty-seven sexual offences and one offence of grave and criminal assault).  He was convicted following an eight day trial."

3.        At the time of sentencing, the Defendant was fifty-seven years of age and the victim, his daughter, who we shall refer to as ("CC"), [redacted]

4.        We do not think that we need to set out the detail of the offending encapsulated in each of the twenty-eight counts on the indictment.  We summarise it hereunder.

5.        The abuse started when CC was six years of age and she recalls that she was alone with the Defendant when he began to touch her, inserted his fingers into her vagina, touched his own penis and then got her to touch it, guiding her so that she masturbated him.  This first instance of abuse remembered by CC was opportunistic in nature but thereafter the Defendant took the opportunity to abuse her on future occasions and at various addresses where the family lived in Jersey.

6.        CC recalled that on another occasion the Defendant told her to "take her draws off" and she became so used to being told this that it became automatic for her to do it.  She recalled how it hurt when the Defendant put his fingers into her vagina, and she also recalls occasions when her private parts stung when she went to the toilet to urinate afterwards.

7.        When he asked her to masturbate him, the Defendant would take her hands and guide them towards his penis.  As a young child, she came to learn what she was expected to do.  She did not think it was pleasant - she wanted it to be over - but she was not aware that what she was doing was wrong.  In her younger days she simply felt that this was what all fathers did and indeed she feared staying over at friends' houses in case she was subject to such abuse from someone else's father.

8.        The Defendant began to abuse her at night in her bedroom.  The Defendant would complain about his wife's snoring and he would be found by her the next morning in CC's room asleep on the lower bunk bed.  CC slept on the top bunk.  He would come into her room, remove his trousers and underwear and he would climb up the ladder to her bed.  He would lift her top and remove her pyjama bottoms, lie on top of her and would touch her chest and vagina before inserting his penis into her vagina.  She was about eight years of age when rape in this way started.  She recalls feeling the stubble of the Defendant's cheek as he assaulted her.  He would ejaculate inside her and leave her bunk once he had finished.  She got into the habit of placing toys on the floor of her bedroom before going to sleep so that she could hear the Defendant's tread - she knew what was going to happen to her, but she felt that she would find it easier to bear if she was awake rather than waking up to the experience. 

9.        There were allegations relating to the Defendant's abuse of CC outside the home, but they did not form part of the counts on the indictment.

10.     By the time CC was eleven years of age, the relationship between the Defendant and his wife had deteriorated and they separated.

11.     CC would go with her sister to visit the Defendant at his new address, but there came a time when they visited separately.  CC would stay over with him.  Again, he began touching her and getting her to touch him, and on one day when they had been to the cinema together, he wanted her to perform oral sex on him.  That had happened previously but not very often, but this was an instance that CC clearly recalls.  He told her how to perform oral sex and stopped her from time to time because her teeth hurt his penis.  He ejaculated.  She describes that there was a routine when she would go to visit him at home and, after they had eaten a meal together and watched TV, he would remove his shirt and start touching her chest area and then would require her to lie on the bed and persuade her to touch his penis.  He had sex with her.  The Defendant had purchased a [pet] for CC which he kept at his home as a further incentive for her to continue visiting, so the Crown says. 

12.     In or around September 2015, the Defendant moved into a small flat, not far away from where his former wife and daughters lived.  CC's relationship with her mother had deteriorated and she moved out of their home and went to live permanently with the Defendant.  She told the Court she did this because she had been groomed by the Defendant and that things were difficult with her mother and sister.

13.     CC would sleep on a futon and the Defendant would sleep on an air bed which he set up in the hallway.  When she had moved in permanently she felt the Defendant did not have to be as nice to her anymore and became more demanding about what he wanted.  He was more physical and aggressive.  The sexual abuse continued and would often happen after he had been drinking.  He would force himself on her, holding her down and raping her.  On other occasions he would demand that she masturbate him and perform oral sex on him.

14.     The Defendant had a particular interest in CC wearing tights and he would tell her to leave tights on when he sexually assaulted her. 

15.     On one occasion when CC was taking a bath, the Defendant came in and sought to touch her sexually under the pretext of washing her.  On one such occasion CC told him not to do this and he became angry.  He grabbed her head, pushed it under water and held it there for a few seconds.  CC felt really scared.  It is this action that is reflected in the count of grave and criminal assault.

16.     CC, over time, suffered from panic attacks, began to regress academically and pull out her hair.  Nonetheless, she formed the view that her father, who she characterised as charismatic, would be believed by the teachers over her and she knew that she could not say anything about what was happening at home.

17.     The realisation of what was happening to her was wrong dawned on her over a period, but CC felt trapped as she did not feel she could return to live with her mother.  CC had relationships with teachers who she trusted, but she was not able to make any disclosure to them.  She moved into Support Establishment 1 and although her behaviour and presentation improved, one of the school counsellors noted that she was still anxious about the prospect of seeing her father.  Social workers and those involved in CC's care encouraged her to have regular contact with the Defendant and he would visit her.  He was encouraged to take her back to his flat and spend time with her.  On one occasion, in May 2013, they returned to his flat and he abused her.  CC recalls this specific instance of abuse.  She was living in Support Establishment 1 but needed to collect some of her things from the Defendant's flat.  Arrangements were made for her to visit him there and when she did, the Defendant made sexual advances to her and, ultimately, she acquiesced, and he had sexual intercourse with her.  That incident ended with the Defendant ejaculating into her mouth. 

18.     There was also an occasion where the Defendant visited her at Support Establishment 1.  She tried to avoid those visits and would go and lock herself into the ensuite bathroom in her bedroom.  On one occasion, however, the Defendant was allowed into CC's room before she had hidden herself away - he put his hands over her mouth and nose to keep her quiet and he raped her on the bed at the children's home. 

19.     In 2013, CC began speaking to the school counsellor in a way that suggested that bad things had happened to her.  After a number of therapeutic sessions, in 2014, CC told the counsellor that there was something she needed to tell her, but she could not.  She was tearful and emotional.  She pleaded with the counsellor to help her make it go away.  She invited the counsellor to ask her a yes or no question.  The counsellor asked "Has your father sexually abused you?" to which CC responded "Yes". 

20.     The investigation did not go smoothly in that CC found it extremely difficult to tell investigators what had happened to her.  She was not able to participate in the first ABE interviews organised for her to any meaningful extent and arrangements were made in 2014 for her to travel to a specialist facility in the UK which provided experts in eliciting evidence from youngsters in CC's position.  However, nothing further was forthcoming.  The Defendant gave a 'no comment' interview in 2014 and the police investigation concluded there was not sufficient evidence to prosecute the Defendant.

21.     In April 2016, a medical examination was carried out which revealed that CC had injuries consistent with blunt force trauma sufficient to tear the tissues of the vulva.  Absent some form of accident causing injury, the doctor formed the view that the scarring was consistent with sexual abuse as a child.

22.     In 2021, CC started a number of further video recorded interviews with the police and she made the revelations which have formed the basis of the charges before us.  The Defendant was arrested and interviewed and made 'no comment' responses to the questions put to him.

23.     The Defendant pleaded not guilty to all of the charges and an Assize trial heard the evidence between 19 and 28 June 2023.  The defence case was that CC had fabricated the entirety of her account and the Defendant had not abused her in any way at all.  She was challenged as to her mental health and it was also suggested to her that her mother or indeed her close friend may have put ideas into her head about the Defendant abusing her.  The Defendant gave evidence and denied ever abusing his daughter.  He was convicted unanimously by the jury on all twenty-eight counts.

24.     The Defendant has no previous convictions but he does not, of course, have the benefit of a guilty plea which is of such value in cases such as this.  The Defendant has continued to maintain his denial and, at the time of the sentencing hearing before us, the Defendant had appealed against his conviction to the Court of Appeal.  The convictions have been upheld in their entirety.  Accordingly, given that he does not accept that he has carried out any of the offences in respect of which he was convicted, the Defendant cannot point to any remorse.

25.     We had before us CC's victim personal statement.  We set this out in full:

"it is going to take a lifetime to recover from the abuse I suffered. I am serving a life sentence due to what [Q] inflicted on me physically and mentally. I had no choice yet I pay the price every day. I have been surviving for so long. All I want to do is start living. I often wonder what my life would have looked like had I felt loved as a child should be, enough to make sure I was not being hurt. That I'll never know. [Q] stole my childhood innocence. He took away from me the future I could have had. I will never get to know an [CC] that was nurtured, I mourn the loss of my childhood, adolescence, and early adulthood that he took from me. I mourn the person I will never get to be. I am trying to build a life without foundation, I am doing so alone. lt was shame that made me stay silent for so long. However, I have grown to learn that it's his secret, not mine. I have nothing to hide. This is not my shame to carry. His lies and manipulation have ruined me and my life. I am irreparably damaged, the impact on my life has been catastrophic".

26.     We have the benefit of a psychological report from Dr Jamie Connor.  He concludes that CC has a history and current presentation consistent with a clinical level of mental health problems that seem to be caused by the chronic abuse she experienced.  She presented with both post traumatic stress disorder symptomatology and emotional instability and in Dr Connor's opinion, the mental health difficulties that she is struggling with can be best understood in terms of a diagnosis of complex post traumatic stress disorder which he defines as "a disorder which arises after exposure to a stressor typically of an extreme or prolonged nature and from which escape is difficult or impossible".  In Dr Connor's opinion, the severity of the psychological harm that CC has suffered falls within the "extreme psychological harm category".

27.     It is clear that although there is little mitigation available to the Defendant in the light of his attitude he has a good work record and he is supported by a close family.  They have written letters to the Court and it is clear that they are unable to believe that the Defendant has behaved in the way that the jury has found.

Law

28.     The Crown, however, urged us to recognise that there is an upward movement in the length of sentence for those who sexually abuse children.  The Crown has also made reference to the English sentencing guidelines alongside this Court's own body of sentencing case law.

29.     We accept that there is an upward movement in the length of sentences for those who sexually abuse children.  The effect of these offences on the victims has become more apparent to the Court as time goes on (see AG v B [2019] JRC049) and indeed we have seen a stark example of this in the instant case.  In AG v F [2019] JRC182, the Court said:

"35. In approaching sentencing in this matter, we have paid regard to other cases in this Court placed before us by the Crown seen in the light of the statement of the Court in AG -v- S [2017] JRC 194A in which the Superior Number of this Court stated:- "We think the time has come to recognise that, following the K case, sentences for sexual offending against children are likely to attract higher sentences than would previously have been the case."

36.      The further back that one looks in examples of sentencing for the various offences under consideration the less assistance is to be found in the approach and the level of sentencing. We have an increasing understanding of the damage that this kind of offending causes to children and the profound and long-term effects that they experience throughout, frequently, the rest of their lives."

30.     The approach of the courts to the use of the English sentencing guidelines is summarised in Attorney General v E [2023] JRC044 in which the Court said this:

"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.

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."

31.     We have accordingly had regard to the English sentencing guidelines in the way that the Court approached the matter in Attorney General v E.  We have first considered the level of harm to the victim and secondly the level of the Defendant's culpability using the factors set out in those guidelines.

32.     We have already made reference to the psychological harm, and indeed the physical harm revealed in the medical examination, suffered by CC as a result of the abuse perpetrated upon her by the Defendant.  We have already set out the effect upon her as appears in the victim's personal statement and made reference to the psychological assessment of harm.

33.     The correct category of harm is Category 1.  The extreme psychological harm suffered by CC was as a result of a sustained period of abuse from when she was 6 years of age for many years.  She was inevitably vulnerable in as much as she was young and she was in the home of her abuser.  She did not have a good relationship with her Mother and she was in effect emotionally and physically isolated.

34.     Turning to the question of culpability, we are satisfied, as argued before us by the Crown, that the Defendant groomed CC and she learned to comply with his wishes.  He taught her how to masturbate him and to perform oral sex.  Furthermore, there was an egregious breach of trust.  It is difficult to imagine a worse breach of trust than sexual assault by a parent on a child.

35.     The Crown reminds us that whereas the English sentencing guidelines - which of course are not binding in so far as their sentence ranges are concerned - suggests a sentence of imprisonment between 13 to 19 years.  The Crown observes, and we accept, that "offences may be of such severity, for example, involving a campaign of rape, that sentences of 20 years and above may be appropriate".  In our judgment this case involved a campaign of rape and other serious sexual offences.

36.     There are a number of aggravating factors including specific targeting of a particularly vulnerable child, the fact that the Defendant ejaculated, and the fact that the offences were carried out for the most part in the victim's home where she was entitled to feel safe.

37.     The Crown put before us a number of cases which are described as comparable.  We are not sure that they are entirely comparable as the offences with which they were dealing were not of the same level of seriousness as the instant case.

38.     For example, in AG v B there were two counts of rape by a father of his daughter when she was between the ages of 6 and 10 and other sexual offences against his elder daughter, and he was sentenced to 15 years imprisonment.  Accounts of digital penetration which existed in that case attracted sentences of 8 years imprisonment.  It is to be noted, however, that in AG v B there were only two specific counts of rape and not the course of conduct revealed in the instant case.

39.     In AG v D.R. [2023] JRC002, a number of counts of sexual assault led to a sentence of 9 years imprisonment in respect of the offending against an elder child and 4 years consecutive in respect of the offending perpetrated on the younger child.  No rape was involved in that case.

40.     It is important to note that the large proportion of the 27 counts of sexual offending including digital penetration, procuring oral sex and masturbation and rape are sample counts.  In other words, they were counts reflecting things that happened frequently within the period that they cover and are not single instances.

41.     The Defence argued before us that the appropriate categorisation was not Category 1 but rather Category 2.  It was argued that some of the cases referred to by the Crown were simply more serious (for example involving two rather than one victim) and the Crown's conclusions were accordingly too high.

42.     It was submitted to us that we should take into account the delay in the Complainant providing information that led to the prosecution.  We do not accept that.  That delay was the product of the harm that had been caused to CC as a result of the Defendant's crimes and although the Defendant may have had to live under the shadow of nascent allegations for a number of years, her inability to reach a point where she could explain what had happened to her to those investigating was, in our view, a direct result of the harm that she had suffered at his hand.  The Defence argues that mitigation should be applied for his good character.  We note that people who commit offences of this nature can often lay claim to good character and it is not necessarily afforded any material weight by the Court.

43.     In summary, from this Court's perspective, the Defendant has perpetrated an appalling breach of trust and has acted as a predator against his daughter in her own home.  He has used her from a vulnerable and young age for his own sexual gratification over several years and he has done so without any regard to the effect that it might have on her.  She has suffered profound and life-changing consequences as a result and in our judgment the sentence moved for by the Crown was entirely appropriate.  Accordingly, we sentenced the Defendant in accordance with the table set out hereunder and using the count numbers as listed on the indictment.

44.     We also imposed restraining orders and the orders under the Sex Offenders (Jersey) Law 2010 as requested by the Crown but for a period of 20 years in each case instead of the period of 25 years sought.

Authorities

AG v B [2019] JRC049.

AG v F [2019] JRC182.

AG v E [2023] JRC044.

AG v D. R. [2023] JRC002. 

Sex Offenders (Jersey) Law 2010.