Inferior Number Sentencing – indecent assault – contempt of
court.
[2013]JRC037
Royal Court
(Samedi)
15 February 2013
Before :
|
W. J. Bailhache, Q.C., Deputy Bailiff, and
Jurats Fisher and Nicolle.
|
The Attorney General
-v-
Jose Antonio Pereira Roque
Sentencing by the Inferior
Number of the Royal Court, following guilty pleas to the following charges:
1 count of:
|
Indecent assault (Count 1).
|
1 count of:
|
Contempt of court (Count 4).
|
Age: 51.
Plea: Guilty.
Details of Offence:
The indecent assault took place
during the Summer of 2009 within the lift of a residential property. The defendant entered the lift with his
young son and at the same time as the victim, a 27 year old female, entered
with her 3 year old son. When the
lift began moving, the defendant started playing with the victim’s hair
and touching her neck. Then,
without warning, he kissed the victim on the lips. It was a long kiss which was not
reciprocated and at no point did the victim consent to being touched. The victim did not make a formal
complaint to the police until April 2010.
The contempt of court count relates
to the defendant’s failure to appear in the Magistrate’s Court in
June 2010. He absconded to Maderia
where he remained for 2½ years.
He returned to Jersey in November 2012 when he handed himself into the
police. He was remanded in custody
until sentencing.
There were two further counts on the
Indictment relating to an indecent assault and a common assault which remain on
file.
Details of Mitigation:
Guilty pleas. In relation to the contempt of court, a
guilty plea was unavoidable.
The defendant has four children
in Jersey. The youngest is severely
autistic and the child’s mother relies on the defendant for support.
Previous Convictions:
Thirteen previous convictions
including three indecent assaults.
Conclusions:
Count 1:
|
6 months’ imprisonment.
|
Count 4:
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4 months’ imprisonment, consecutive.
|
Total: 10 months’
imprisonment.
From the date of conviction that
the defendant becomes subject to the notification requirements of the Sex
Offenders (Jersey) Law 2010 for a minimum period of 5 years to elapse
before the accused is permitted to apply under Article 5(5) of the Law to be no
longer subject to the notification requirements of the Law.
Recommendation for deportation
sought.
Sentence and Observations of Court:
In view of the
totality principle and the time the defendant has spent on remand, the
Community Service Orders are to be served concurrently.
The Court observed
that there was a small difference between this case and those of Donachie
and Stirton in that the defendant chose to return and was not brought
back to Jersey on a warrant.
Count 1:
|
180 hours’ Community Service Order,
equivalent to 12 months’ imprisonment.
|
Count 4:
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90 hours’ Community Service Order,
equivalent to 3 months’ imprisonment, concurrent.
|
Total: 180
hours’ Community Service Order, equivalent to 12 months’
imprisonment, plus a 3 year Probation Order together with a Treatment Order.
From the date of
conviction that the defendant becomes subject to the notification requirements
of the Sex Offenders(Jersey) Law 2010 for a minimum period of 5 years to elapse before the defendant is
permitted to apply under Article 5(5) of the Law to no longer be subject to the
notification requirements of the Law.
No deportation
recommendation made.
R. C. P. Pedley, Esq., Crown Advocate.
Advocate J. N. Heywood for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1.
You are
here to be sentenced today on an Indictment which originally contained four
counts but two of them have been left on file and so the two counts with which
we are today concerned are an indecent assault and a contempt of court.
2.
The
indecent assault occurred in 2009 when the victim, a female aged 27, was in a
lift with you and with her three year old child. Once the lift began moving you played
with the victim’s hair, and then, without warning, you kissed her on the
lips. It was, we are told, a long
kiss and she did not reciprocate.
She did not at any point consent to being touched. Her child apparently subsequently asked
her “What was that man doing
mum?” She must have been extraordinarily
frightened. She was in a confined
space and she would not have any knowledge as to where your assault was going
to lead.
3.
The second
part of the Indictment is that you left the Island when you had been charged in
the Magistrate’s Court and you had pleaded guilty. You returned to your native Madeira and
came back here only because your former partner agreed to pay the cost of your
ticket and because she wanted your help, and you were prepared to give it, in
looking after an autistic 6 year old child.
4.
The Court
has been asked to make orders in relation to deportation and the Sex
Offenders (Jersey) Law 2010 and also to impose a sentence of imprisonment
upon you and I have to tell you that the Court is divided as to what is the
right way to deal with this case.
One Jurat favours the imposition of a custodial sentence and deportation;
the other Jurat favours the imposition of community service plus a probation
order and no deportation. In the
circumstances it falls to me and I have, after some careful consideration,
decided to side with the Jurat who favours non-deportation and the imposition
of a probation order.
5.
I would
like you to know that this has been a very marginal decision. You have three previous convictions for
indecent assault. The Court is
seriously concerned at the risk which you pose to members of the public,
particularly female members of the public.
But we have taken into account in particular the possibility that the probation
order which we intend to impose and the participation in the sexual offending
programme, which you will be required to participate in, may provide the help
and support which will enable you to avoid offending of this kind in the
future. We note that you have been
in Jersey since 1992 and the indecent assault offences have been committed over
a five year period or so, between 2004 and 2009.
6.
The Court
is completely satisfied that the first part of the Camacho-v-AG [2007]
JCA 145 test is met, that is to say that conduct of this kind is sufficient to
merit a deportation order. And in
particular the previous convictions and the description by the probation
service of your being at high risk of further sexual offending supports the
view that the first part of that test is met. Nonetheless, we have to balance the
interests of your former partner and your 6 year old child and I have to say
that were it not for the possibility that the probation order might be
successful the balance would come down, without question, in favour of
deportation despite the undoubted adverse impact for your former partner and
your child. I want to say to you as
clearly as possible, that if there is any repetition of this kind of conduct in
the future, there is very little likelihood of a deportation order being
avoided, very little likelihood indeed.
7.
In the
circumstance we are going to impose on Count 1 a Community Service Order of 180
hours and the alternative is a 12 month custodial sentence and on Count 2 a
Community Service Order of 90 hours, where the alternative would have been 3
months’ custody. In relation
to Count 2 I add that we do see a small difference between this case and the
cases of AG-v-Donachie [2012] JRC 019 and AG-v-Stirton [2012] JRC
108 where the defendants had to be brought back on a warrant and in this case
you chose to come back and we have reflected that in the order we have
made. In theory the two periods of
community service should be performed consecutively, but we have had regard to
the issues of totality and also to the fact that you have served some time on
remand, and in those circumstance the Community Service Orders are to be
performed concurrently, so the total is 180 hours’ community
service. In addition you are placed
on probation for 3 years and the usual conditions of the Probation Order will
apply, in particular you will be required to attend such courses as are
required of you by the probation service.
8.
I warn you
that any breach of the Community Service Order or the Probation Order is going
to make you liable to be brought back to court and you can be re-sentenced on
the two counts on the Indictment. I
am not clear that it would be open to the Court to revisit the question of
deportation, but we express the hope that if this should come about, the
Attorney General will consider the revisiting of the charges which have been
left on file and we express the view that the Court might well be minded at
that stage to give leave to the Attorney General to bring those charges forward
again to enable, if there is a conviction, deportation questions to be
revisited.
9.
I cannot
emphasise to you enough how unacceptable this conduct is. Women in this Island are entitled to be
protected from assaults of this kind.
The Orders that we are making have been reached with some hesitation and
you should work carefully with the probation office to ensure that they stand a
good chance of success.
10. As a matter of Law you are subject to the
notification requirements under the Sex Offenders (Jersey) Law 2010 and
they should apply for a period of at least 5 years before you can make any
application to have the notification requirements disapplied to you.
Authorities
Sex Offenders (Jersey) Law 2010.
Camacho-v-AG
[2007] JCA 145.
AG-v-Donachie
[2012] JRC 019.
AG-v-Stirton
[2012] JRC 108.
AG-v-Sousa
2001/219.
Harrison-v-AG
[2004] JLR 111.