Inferior Number Sentencing – breach of a restraining order,
contrary to Article 10(4) of the Sex Offenders (Jersey) Law 2010.
[2011]JRC214
Royal Court
(Samedi)
4
November 2011
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Before :
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M. C. St. J. Birt, Esq., Bailiff, and Jurats
Clapham and Marett-Crosby.
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The Attorney General
-v-
G
Sentencing by the Inferior
Number of the Royal Court
following a guilty plea to the following charge:-
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1 count of:
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Breach of a restraining order, contrary to
Article 10(4) of the Sex Offenders (Jersey)
Law 2010 (Count 1).
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Age: 60.
Plea: Guilty.
Details of Offence:
During July 2009 the defendant was
sentenced to a total of 4 years’ imprisonment after having pleaded guilty
to two counts of indecent assault, one count of procuring an act of gross
indecency and two counts of child neglect.
In May 2011 he was placed on the notification register under the Sex
Offenders (Jersey) Law 2010 for a maximum
of 10 years, and made subject of several restrictive orders.
The defendant was in particular
subject to the following:-
(i)
That he be
prohibited from contacting or approaching, directly or indirectly, any person
identified in Appendix A of the order other than any contact which is
inadvertent or unavoidable.
(ii)
That in
circumstances where he finds himself in contact with any persons named in
Appendix A, or finds himself alone with a person under the age of 16, that he
has a positive duty to remove himself from that situation as soon as reasonable
possible.
During August 2011 the defendant was
seen outside a building together with five others, three of whom he knew were
named in Appendix A of the order.
The police contacted some of those present who confirmed the witnesses
account, and that D, B and C had been there. All three are named in Appendix A.
A said there was an arrangement to
meet the defendant to pass him a key to the accommodation. She met him outside and passed him the
key. She said B blew a kiss at the
defendant and the defendant then briefly spoke to both D and B. A had telephoned the defendant as they
prepared to leave to say she would leave the keys in a secure place outside the
flat but he replied that he was outside and would wait for them. Miss N who was there said she pushed the
two young children past him in the pram while A gave him the key. D waved at the defendant who then came
over to pat him on the head. They
then went to town leaving the defendant at the flat.
C said that he did not know that the
defendant would be outside. He was
aware that he was not meant to have contact with the defendant and that this restriction
also applied to D and B. When they
went outside C was next to A as she handed the key over and he and the defendant
hugged each other. C then walked
down to join Miss N and the other two younger children. One of them waved at the defendant who
came down and patted both children on the head, gave them a kiss and spoke to
them. The group then
separated.
Shortly afterwards Miss N realised
that she had left her purse in the flat and asked C to go and fetch it. He did so and encountered the defendant
in the flat and said he was getting the purse and also has a brief exchange as
C left.
The defendant said in interview that
when A met him he was surprised to see that she had children with her, and that
Miss N wheeled them past him in a buggy.
He said that he had spoken to A about incidental matters for a minute or
so and that he was affected from medicine he had taken. He denied seeing C either outside the
accommodation or inside, saying that when he was in the flat he was in the
toilet and may not have been aware of anyone coming inside. In the second interview he denied
speaking to D or B, touching them, or seeing C. He said that even if he had seen them he
did not acknowledge them.
Aggravating features
The defendant was not co-operative
in interview, and denied knowing that any of the individuals were present at
the time. He cannot have been in
any doubt as to the nature or extent of the orders.
Details of Mitigation:
Whilst this was a breach of a
restrictive order imposed by the Court to protect the public, and specific
individuals from the threat of serious harm, it was to the lower end of the
scale. The breach was not
pre-meditated, the physical contact with the three individuals was brief, and
the situation endured for one to two minutes. The mischief was in the fact that the
defendant did not take steps to leave as soon as reasonably possible. Guilty plea.
Previous Convictions:
Indecent assault, one count of
procuring an act of gross indecency, two counts of child neglect.
Conclusions:
Due to time the defendant spent on remand this
allowed for his immediate release.
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Count 1:
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4 months’ imprisonment.
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Sentence and Observations of Court:
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Count 1:
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6 months’ Probation Order.
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Ms E. L. Hollywood., Crown Advocate.
Advocate S. A. Pearmain for the Defendant.
JUDGMENT
THE bailiff:
1.
The
defendant in this case was sentenced in July 2009 to 4 years’
imprisonment for sexual offences in connection with two girls under the age of
16. On 26th May, 2011, after his release,
the Court made certain restraining orders against him under the Sex
Offenders (Jersey) Law 2010. The relevant orders for our purposes
today were as follows:-
“1. That he be prohibited from contacting
or approaching, directly or indirectly, any person identified in Appendix A of
this order, other than any contact which is inadvertent or unavoidable, and
…
4. That
in circumstances where he finds himself in contact with any persons named in
Appendix A, or finds himself alone with a person under the age of 16, that he
has a positive duty to remove himself from that situation as soon as reasonably
possible.”
2.
On 12th
August of this year the defendant breached that restraining order in the manner
described by the Crown Advocate and by Advocate Pearmain. He arranged to meet A; unknown to him B,
C and D, who are three of the people listed in Appendix A, were also
there. We will come in a moment to
the exact circumstances of the breach.
3.
This is
the first breach of a restraining order under the 2010 Law and Advocate
Pearmain has asked us if we could give some general guidance. We are a little cautious about doing so
because the only assistance we have had is the production by Mrs Pearmain,
which is very helpful, of a section from Archbold Magistrate’s Court
Criminal Practice 2012 and in particular paragraph 14 – 299 which
reads as follows:-
“In Fenton [2007] 1 Cr.
App. R. (S) 97 it was held that where the breach does not involve any real or
obvious risk to the section of the public sought to be protected by the order
then a community penalty would be an appropriate sentence. Where there are repeated breaches of any
order a custodial sentence may be appropriate. Where the person or persons sought to be
protected are, as a result of the breach, put at a real and obvious risk then
the breach should be treated more seriously.”
There is then reference to another case Byrne
[2010] 1 Cr. App. R. (S.) 65, where a 2 year sentence was imposed for a breach
of an order on seven occasions. The
orders spoken of there are sexual offences prevention orders but they are the
English equivalent of our restraining orders under the 2010 Law.
4.
We have to
say that, in our respectful opinion, that passage does not treat a breach
sufficiently seriously but we do emphasise that we have not been referred to
the cases themselves, and therefore we are relying entirely on Archbold’s
summary of them. But one starts
from the position that a restraining order is made because an offender poses a
risk of serious sexual harm. The
order is therefore made for the protection of others because of the risk of
that harm. For a person who poses
such a risk then to flout the order of the Court is, in our judgement, very
serious. Furthermore, Jersey is a small community and is very different in size
and scale from England
and Wales. There is a considerable risk of an
offender coming into the same area as a person he is prohibited from contacting
and it is too easy for him to say that it was unavoidable. A strong message therefore needs to be
sent that offenders must take all reasonable steps to avoid breaching the
order.
5.
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.
6.
But the
Court must consider the facts of any particular case and we accept, as does the
Crown in this case, that the breach here was at the very bottom of the
scale. The defendant did not know
that B, C or D would be present and therefore the breach was completely
unpremeditated and not the subject of any deliberation. B and D are tiny youngsters; C is now
16, although he was not when the order was made. The essence of the breach in this case
lies in the fact that the defendant did not leave the scene as soon as he
could. Having met them all
inadvertently because they were in company with A, he turned to speak briefly
to the two toddlers and also received a hug from C who is, as we say, now over
16. The whole incident lasted a
matter of a minute or two and took place in a public street. The mother of the toddlers was present
throughout. As we say, the essence
of the breach was that he did not remove himself as soon as reasonably
practical as ordered by the restraining order.
7.
In all the
circumstances this is one of those rare cases therefore where a breach does not
merit a sentence of imprisonment.
It would have merited a sentence of community service. However, the defendant has served the
equivalent of 4 months’ imprisonment on remand and therefore it would be
wrong to impose community service as this would amount to double
punishment. Advocate Pearmain has
asked us to impose a probation order and this is also referred to in the
probation report. This will
formalise the support which the defendant is already voluntarily seeking from
the Probation Service and we think it would assist him in resettling and that
can only be for the benefit of the community as a whole.
8.
In all the
circumstances we impose a Probation Order of 6 months.
9.
The
defendant is still subject to the notification requirements and of course subject
to the restraining orders and, whilst on this occasion the Court has accepted
it was a brief inadvertent breach, should there be any repeat breach he can
expect a much harsher penalty.
Authorities
Sex Offenders (Jersey) Law 2010.
Archbold Magistrate’s Court
Criminal Practice 2012.
Byrne [2010] 1 Cr. App. R. (S.) 65.
AG-v-G [2009] JRC 148.