Superior Number Sentencing - reasons for the sentence
[2018]JRC158
Royal Court
(Samedi)
3 September 2018
|
Before :
|
T. J. Le Cocq, Esq., Deputy Bailiff, and
Jurats Crill, Grime, Christensen, Dulake and Kerley
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The Attorney General
-v-
D
M. R. Maletroit, Crown Advocate.
Advocate J. W. R. Bell for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1.
D appeared
before this Court to be sentenced with regard to 12 counts of historic sexual
abuse comprising nine counts of indecent assault and three counts of committing,
inciting or procuring acts of gross indecency.
2.
There are
four complainants, three of whom, Complainant 1, Complainant 2 and Complainant
3 are the Defendant’s step-daughters and the fourth complainant,
Complainant 4, is the Defendant’s daughter. The offences involving Complainant 1,
Complainant 2 and Complainant 3 were committed in the 1970s and the 1980s and
the offences involving Complainant 4 were committed in the 1990s. All the complainants were children at
the material time.
3.
The
Defendant is currently 78 years old and has certain medical difficulties to
which we will refer hereafter.
4.
On 25th
June, with reasons reserved, we sentenced the Defendant as follows:-
(i)
Count 1
indecent assault on Complainant 1, starting point of 9 years, 5 years imprisonment;
(ii) Count 2 indecent assault on Complainant 1,
starting point of 10 years, 6½ years imprisonment;
(iii) Count 3 indecent assault on Complainant 2,
starting point 6 years, 4 years imprisonment;
(iv) Count 4 procuring an act of gross indecency on
Complainant 2, starting point 9 years, 6½ years imprisonment;
(v) Count 6 indecent assault on Complainant 3,
starting point 16 years, 13 years imprisonment;
(vi) Count 7 indecent assault on Complainant 3,
starting point 16 years, 13 years imprisonment;
(vii) Count 9 indecent assault on Complainant 3,
starting point 16 years, 13 years imprisonment;
(viii) Count 10 inciting of an act of gross indecency
Complainant 3, starting point 10 years, 6½ years imprisonment;
(ix) Count 11 indecent assault on Complainant 3,
starting point 8 years, 5 years imprisonment;
(x) Count 13 committing an act of gross indecency
on Complainant 3, starting point 6 years, 4 years imprisonment;
(xi) Count 14 indecent assault on Complainant 4,
starting point 9 years, 5 years imprisonment;
(xii) Count 15 indecent assault on Complainant 4,
starting point 9 years, 5 years imprisonment;
All counts to be concurrent making a total
of 13 years imprisonment.
5.
The nature
of the Defendant’s offending was may be summarised as follows:-
Complainant 1
6.
Complainant
1 describes a sequence of abuse starting from around 1972 when she was 7 years
of age. The Defendant had entered
into a relationship with Complainant 1’s mother and the abuse started
shortly after that. She recalls the
first incident, Count 1, occurring when her mother was at work and the
Defendant entered her bedroom and directed her to go to the bathroom. He accompanied her to the bathroom and
directed her to sit on the toilet and urinate. This she did, after which the Defendant
leaned down and licked her vagina.
The Defendant simply left her sitting there and thereafter acted as if
nothing had happened. Complainant 1
did not tell anyone.
7.
She
recalls a second incident, Count 2, which took place in the lounge at the home
that she occupied with the Defendant and her mother. While she was lying next to the
Defendant she describes the Defendant using his right hand and putting his
finger inside her vagina.
8.
After the
family moved to a different home the Defendant’s opportunities to abuse
her became more limited although she says that she lived in fear of him
touching her. She moved out of the
family home when she had reached the age of 18 – the earliest
opportunity.
Complainant 2
9.
Complainant
2 describes being physically, mentally and sexually abused by the Defendant
from the age of 9. She indicates
that the Defendant first abused her a few weeks before he moved into the family
home. He took her to his address
and the Defendant asked her to come over to him saying words to the effect of ‘You’re a big girl now’. He pulled down her pants to her ankles
and touched the outside of her vagina (Count 3) and then took her to the
toilet. He took his trousers and
underpants down and Complainant 2 noted that he had an erection. He sat on the toilet seat and made
Complainant 2 stand directly in front of him between his knees. The Defendant started to masturbate with
one hand and grabbed hold of Complainant 2’s hand and placed it on his
penis and put his hand over the top of her hand to continue masturbating (Count
4). The Defendant ejaculated
shortly after that. He told her
that it was ‘their secret’,
asked her if she enjoyed it, and told her not to tell anyone.
10. Following this first incident the Defendant
acted normally, although he would occasionally pull Complainant 2 close and say
things to the effect of ‘it’s
still our secret’. When
she was 11 years old, and after she had started menstruating, the Defendant
said ‘we will have to be more
careful now’. Complainant
2, too, moved out of the family home when she reached the age of 18, taking the
earliest opportunity to get away from her home situation.
Complainant 3
11. Complainant 3 was regularly abused by the
Defendant over a ten year period and she provides detailed accounts of numerous
incidents of sexual abuse. She
describes how the Defendant used to drive a lorry and sometimes he would take
her with him in the lorry to a secluded quarry. He abused her there on a number of
occasions.
12. Complainant 3 recalls an occasion, Count 6,
which is a specimen count, when the Defendant took her to the quarry and she
needed to go to the toilet. He told
her to urinate into a bucket and he placed it in the middle of the open space
and she did as she was told. When she
had finished he started touching her genital area before she had had the chance
to pull up her knickers and he touched both the inside and the outside of her
vagina. She shouted because it
hurt. Whilst he was doing this he
was touching himself over his trousers.
The Defendant was breathing heavily. This would occur every time he took Complainant
3 to the quarry.
13. On another occasion, Count 7, she tried to stop
herself from urinating hoping that if she did not do so he would not touch
her. The Defendant nonetheless
removed her underwear and touched her both on the inside and outside of her
vagina. On the trip home she wet
herself.
14. On another occasion at the quarry she recalls
the Defendant pushing her underwear to one side and touching her vagina in the
same manner as before (Count 9). He
took his trousers down and she saw his erect penis which he asked her to touch
(Count 10), but she refused.
15. She describes this abuse as ‘a very difficult time’ and
that she ‘hated my life’. She felt alone. The abuse was regular and she does not
remember a period in her childhood when the Defendant was not abusing her. She thought if she told anyone she would
not be believed. She was considered
to be a difficult child and was referred to the child psychiatric unit.
16. Complainant 3 also recalls other incidences of
abuse when she was between 12 and 14 years old. After she had begun to develop breasts
and pubic hair she was having a bath and the bathroom door was locked. The Defendant knocked and said he needed
to come in and get a ring that he had left inside the bathroom and she got out
of the bath, put a towel around herself and let him in. She noticed he was wearing his ring and
he had tricked her. He put his
hands under the towel and groped her breasts and said something to the effect
of ‘You are growing into a good
size’. He touched the
inside and outside of her vagina.
She was too scared to do anything.
He left her crouching on the floor crying. This was Count 11.
17. On another occasion, Count 13, again when she
was aged between 12 and 14, the Defendant opened the toilet door when she had
just finished using the toilet.
This caused her to sit back down on the toilet and he stood over, took
his trousers down to his knees and began to masturbate. He told her to lift her shirt and then
ejaculated onto her stomach. He
told her to touch his semen, which she did, and he then used toilet tissue to
wipe the semen off her stomach. He
put the tissue in the toilet.
Complainant 3 felt upset and physically sick.
Complainant 4
18. Complainant 4 states that she first met the
Defendant when she was between 7 and 9 years of age and had no relationship
with him prior to that. When she
was between 10 and 11 years of age Complainant 4’s mother thought that
she was old enough to be left alone for short periods of time and she was
allowed to go straight home after school.
The Defendant would look after her and she states that she started to
feel uncomfortable. He would touch
her inappropriately on her stomach or thighs. She remembers sitting on his lap one
evening when the Defendant placed his hand between her legs on the outside of
her clothing and moved his hand around the inside of her thighs. She tried to move away but the Defendant
followed her and started to touch her between the legs again still over her
clothing. He followed her to her
bedroom and pulled down her trousers and pants and started kissing her thighs
and vagina.
19. On occasion the Defendant would put his hand on
her leg and pretend to tickle the top of her thighs. She would tell him not to do so and
asked him if he was allowed to. He would
act playfully and respond ‘Yes,
I’m your dad’.
20. Complainant 4 remembers another incident, Count
15, which took place one evening after school. She and the Defendant were on the sofa
together and the Defendant started to tickle her. She tried to get away and he then bit
her thigh. She wriggled away and
ran to her bedroom lying on her bed face down. The Defendant came into her bedroom,
lifted her dress, pulled down her knickers and bit her bottom. He then kissed her thighs and began to
kiss her vagina, saying he was allowed to do that as “daddies” could
do that to their daughters. The
abuse stopped when Complainant 4 ultimately told her mother.
21. The Defendant was interviewed under caution and
made no admissions with regard to the allegations that were put to him
suggesting that the ‘whole bloody
thing has been cooked up’.
Psychological assessment
Complainant 1
22. Complainant 1 has prepared a victim personal
statement in which she says that she thinks about what the Defendant has done
to her on an almost daily basis and shudders when this comes into her
mind. The simple act of going to
the toilet brings to mind what he did.
She says that for the whole of her childhood and teenage years she lived
in fear of being caught alone in the same room as him.
23. The impact of the offending on her has been
assessed by a clinical psychologist who confirms that she suffers from
involuntary and intrusive recollections of the abuse which impact on her sleep,
self-esteem and daily functioning.
She is suffering a high degree of psychological distress which is
concordant with a clinical presentation of distressing recollections and
memories, a high level of anxiety and interpersonal disturbance and she
presents as someone with the symptoms of post-traumatic stress although does
not meet the criteria for a full diagnosis in that regard. In the opinion of the psychologist, as a
result of the abuse, she has a generalised anxiety, compounded with distressing
memories. In her opinion the harm
caused to Complainant 1 would fall into the category of ‘severe psychological harm’.
Complainant 2
24. Complainant 2’s victim personal statement
says that the Defendant’s actions destroyed any chance of her having a
normal childhood and she felt frightened on a daily basis about what he would
do to her. She wondered if she had
done something to deserve the abuse she suffered.
25. We also have a victim impact report from a
clinical psychologist describing symptoms of depression from a young age and
suicidal ideation and noting that her distress was overt during clinical
assessment. She currently experiences
a range of symptoms concurrent with post-traumatic stress including sleep
disturbance, nightmares and avoidance behaviours and flashbacks. She is assessed as suffering ‘severe psychological harm’. She meets the criteria for a diagnosis
of post-traumatic stress disorder and her trauma symptoms are a consequence of
the sexual abuse and emotional neglect she experienced throughout her
childhood.
Complainant 3
26. Complainant 3’s victim personal statement
said that because she was so young when she was first abused, she thought it
was normal. Her behaviour
deteriorated as she got older, she was taken away from the family home and then
felt that she was not part of the family unit. She refers to depression which she links
to the abuse that she suffered. She
also refers to vivid flashbacks which she still suffers.
27. Her victim impact report confirms that she has
a history and presentation which is consistent with a clinical level of mental
health problems because of chronic sexual psychological and physical
abuse. She presents with both
post-traumatic stress disorder symptomatology and traits of an emotionally
unstable personality as a consequence of the early abuse, amongst other things. In the opinion of the clinical
psychologist the severity of psychological harm caused to Complainant 3 would
fall within the ‘extreme
psychological harm’ category.
Complainant 4
28. Complainant 4’s victim personal statement
refers to the fact that she was poorly as a child but notwithstanding this, the
Defendant abused her and betrayed her trust in him. She talks of her feelings of shame and
paranoia and how the abuse affected her interpersonal relationships when she
became an adult.
29. The victim impact report reflects what
Complainant 4 has told us in her victim personal statement and says as
follows:-
“To summarise, in my
opinion, given her constellation of difficulties, Complainant 4 presents with a
high level of interpersonal distress – depression and anxiety that is
predisposed by her experience of Crohn’s Disease from birth and
perpetuated by the sexual abuse by her father in her childhood. Her mother’s early intervention,
both in terms of the abuse and attending to her daughter’s Crohn’s
Disease has prevented what could have been, a complex picture of
psycho-pathology in adulthood”.
30. The amount of harm that she has suffered is in
the category of ‘severe
psychological harm’.
Aggravating features
31. There are a number of aggravating features
which are common to all of the victims in this case. Clearly for the most part the Defendant
isolated the victims in one way or another and much of the abuse took place in
the victims’ home – a place where each should have felt completely
safe and secure. The victims were
very young and it is obviously the case that in each of these offences there
was a gross and egregious abuse of trust.
The Defendant was in a position of power and responsibility with regard
to these children and he abused that position and that relationship turning
what should have been a loving supporting paternal relationship, into one of
exploitation for nothing more than his personal sexual gratification.
32. In addition, there was an element of grooming
and also an attempt to normalise the abuse when the Defendant, by way of
example, suggested that he was entitled to abuse Complainant 4 because he was
her dad or that ‘Daddies can do
that to their daughters…. That’s how they take care of them’.
Mitigation
33. With regard to the mitigation available to this
Defendant, he of course has the benefit of guilty pleas and has spared the
victims the re-traumatisation of having to come to court to give evidence. Whilst he has no relevant previous
convictions and therefore may be treated as a man of good character this does
not, it seems to us, merit substantial weight or a reduction in what would
otherwise be the appropriate sentence.
This was not a one off offence but rather a pattern of offending that
took place with multiple victims over a protracted period. It is difficult in our view to afford
significant weight to otherwise good character in those circumstances. We have, of course, noted and taken into
account the Defendant’s letter of remorse provided to us for the purposes
of this sentencing hearing. He
points to abuse that he had suffered when a child at the hands of a teacher. He describes difficulties that he has
faced, particularly with his health.
34. The Defendant is 78 years old and accordingly,
and in the light of his poor health, a lengthy prison sentence would be harder
on him than it might be on a younger man in a good health.
The Law
35. As this court has often said in the past, in
the absence of exceptional circumstances a custodial sentence is inevitable in
cases involving sexual abuse of children.
We repeat the words of the then Bailiff, Sir Philip Bailhache when, in AG
v Brewster [2001]3 the Royal Court said:-
“The removal of a
child’s innocence and the corruption of the trust which children
naturally feel for adults is so serious that, other than in exceptional
circumstances, they must be punished with imprisonment.”
36. In moving conclusions the Crown has referred to
the sentencing guidelines applicable in England and Wales. The use of the guidelines has been
considered in a number of cases and it is clear that the court has taken into
account the factors in those guidelines in assessing the appropriate
sentence. That does not mean that
the court considers itself bound to follow the guidelines and the court has on
a number of occasions made it clear that it sets its own sentencing policy but
that the factors referred to in the guidelines are nonetheless helpful.
37. In the AG-v-W [2018] JRC 061 the court
commented that “reference to the guidance on harm, culpability and aggravating
and mitigating features”
is of assistance. In that case the
Defendant had been found guilty after trial of eleven counts of sexual offences
against two young girls between the age of 9 and 15 years – ten of the
offences were against one girl and one against her friend. They range from indecent assault to
procuring acts of gross indecency to one count of rape. The defendant was sentenced to a total
of thirteen years imprisonment and the court imposed a sentence of ten years
imprisonment in respect of indecent assaults involving digital penetration and
nine years in respect of the offences of procuring the victim to touch the
defendant’s naked penis and in effect masturbate him.
38. In moving conclusions the Crown has had regard
to the guidelines dealing with assault by penetration of a child under 13,
sexual assault of a child under 13, causing or inciting a child under 13 to
engage in sexual activity, and sexual activity with a child family member
(inciting a child family member to engage in sexual activity).
39. This case, of course, involves multiple
offending against four different victims.
It would, of course, be theoretically possible to impose consecutive
sentences but the cumulative effect would infringe the totality principle as
the overall sentence would be too high.
In this case the Crown has made reference to a ‘Valler uplift’.
This expression comes from the case of Valler v AG [2002] JLR 383
which relates to dealing in more than one type of unlawful drug. In that case the court raised the
starting point for the more serious drug to reflect the fact that more than one
type of drug was imported in order that the additional criminality for the
importation of the second although less serious form of drug was reflected in
the eventual sentence of the court.
This approach has been applied by the Crown in a number of recent
sentencings for historic child abuse involving multiple victims and in
different forms of offending. It
has been adopted by the court in the case of AG v S [2017] JRC 194A, AG
v W [2018] JRC 061 and AG v P, the judgment in which is awaiting
publication.
40. The effect is that the most serious counts
attract a higher starting point than they would if they stood alone on the
indictment, reflecting the fact that there are other offences. We do not necessarily approve of the
description of this method of assessing sentence in cases such as this as a ‘Valler Uplift’ but in our
view the principle is correct. In K
v AG and AG v F [2016] JCA 219 the Court of Appeal said this:-
“The Attorney General invited
the court below to impose consecutive sentences in order to reflect the overall
criminality even though concurrent sentences would ordinarily be appropriate
where there was a series of offences of the same kind committed against the
same person. The Royal Court
however took the view that imposing consecutive sentences would mean the
sentence for each individual offence would not properly reflect the gravity of
that offence and in those circumstances it would be appropriate to impose
concurrent sentences but increase the sentence on the second offence to reflect
the fact the defendant had committed two offences rather than just one. Although the judgment does not in turn
say so, we are confident that the Royal Court had in mind that if an
appropriate sentence for each individual offence had been imposed with an order
that the second sentence run consecutively to the first the totality principle
would be infringed because the overall sentence would be too high.”
41. Although that case was not dealing with
multiple victims it seems to us that a similar approach is appropriate.
Conclusion
42. Cases such as this are among the most difficult
that the court has to deal with.
Whilst the Defendant has, amongst other things, the important mitigation
of his guilty pleas available to him and of course his age and poor health, we
are nonetheless confronted with a situation in which over a very substantial
period he carried out serious abuse of his step-children and of his own
biological child. There are a
number of aggravating features to which we have already made reference and the
harm visited upon these children which has been carried by them into and
throughout their adult lives, varies between severe and extreme.
43. In our view, the overall sentence recommended
by the Crown is the correct sentence although we would increase the starting
points with regard to Count 1, 14 and 15 (and consequently the finishing
points) somewhat to reflect the fact that in our view licking the vagina of a
victim case is highly intrusive and serious.
44. For those reasons, however, we imposed the
sentence set out at paragraph 4 above.
45. We also note that we were asked to make orders
relating to the Sex Offenders Register and restraining orders. These were not opposed by the defence
and we made the orders as requested.
Authorities
AG
v Brewster [2001]3.
AG-v-W [2018] JRC 061.
Valler v AG [2002] JLR
383.
AG
v S [2017] JRC 194A.
AG
v W [2018] JRC 061.
K
v AG and AG v F [2016] JCA 219.