Superior Number Sentencing - Rape - Indecent Assault

[2019]JRC049

Royal Court

(Samedi)

27 March 2019

Before     :

Sir John Saunders, Commissioner, and Jurats Crill, Ramsden, Dulake, Averty and Fisher

The Attorney General

-v-

B

Sentencing by the Superior Number of the Royal Court, following conviction at Assize Trial on the following charges:

2 counts of:	Rape (Count 1 and Count 2).
11 counts of:	Indecent Assault (Counts 3-13).

Age:  43

Plea: Not guilty.

Details of Offence:

The Defendant raped a girl on two separate occasions when she was aged between six and ten.  The offences took place in circumstances of gross breach of trust, committed at her home.

 

The indecent assaults were committed against an older girl when she was aged between 12 and 13.  The Defendant would indecently assault her on a regular basis, and this course of conduct was reflected in eight sample counts covering four separate occasions.  In the evening, the Defendant would get the girl to undress and get into a bed.  He would then rub her breasts (counts 3, 5, 7 and 9) and touch and digitally penetrate her vagina (counts 4, 6, 8 and 10). 

 

Count 11 related to the Defendant putting his hands between her naked buttocks. 

 

Count 12 was a sample count to reflect another manner of indecent assault when he used to approach her in the bedroom when she was getting undressed and touch her naked breasts. 

 

On one occasion after playing in an inflatable pool in the garden, she came into her house wrapped in towel.  The Defendant sat her on his lap, removed the towel and rubbed her breasts.   

 

Both victims were fearful of the Defendant’s temper and aggression and so did not tell anyone until they had been taken into care. 

Details of Mitigation:

Little, if any, mitigation.  Both children were required to undergo cross-examination via video link at trial.  The Defendant showed no remorse and continued to deny the offending in the Social Enquiry Report.

Previous Convictions:

Grave & criminal assault 2015 (21 months’ imprisonment). 

A number of convictions between 1993 and 2003 for fraud, theft offences, public disorder and offences of violence, and miscellaneous minor offences.

Conclusions:

Count 1:	16 years’ imprisonment.
Count 2:	15½ years’ imprisonment, concurrent.
Count 3:	4 years’ imprisonment, concurrent.
Count 4:	8 years’ imprisonment, concurrent.
Count 5:	4 years’ imprisonment, concurrent.
Count 6:	8 years’ imprisonment, concurrent.
Count 7:	4 years’ imprisonment, concurrent.
Count 8:	8 years’ imprisonment, concurrent.
Count 9:	4 years’ imprisonment, concurrent.
Count 10:	8 years’ imprisonment, concurrent.
Count 11:	6 years’ imprisonment, concurrent.
Count 12:	4 years’ imprisonment, concurrent.
Count 13:	5 years’ imprisonment, concurrent.

Total: 16 years’ imprisonment.

Order sought under Article 5(2) of the Sex Offenders (Jersey) Law, 2010 that a period of 10 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence.

Restraining Order sought under Article 10(4) of the Sex Offenders (Jersey) Law, 2010 to commence from date of sentence for a period of 15 years with the following conditions:-

(i)      that the Defendant be prohibited from being alone with any female he knows or believes to be under the age of 16 years;

a.         he shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history and does not have any convictions for sexual offences;

b.         the adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling;

(ii)     that in circumstances where the Defendant finds himself alone with any children under the age of 16 years, accidentally or inadvertently, he has a positive duty to remove himself from the situation as soon as possible; and

(iii)     that the Defendant is prohibited from having any contact, direct or indirect, with the victims.

Sentence and Observations of Court:

Count 1:	15 years’ imprisonment.
Count 2:	15 years’ imprisonment, concurrent.
Count 3:	4 years’ imprisonment, concurrent.
Count 4:	8 years’ imprisonment, concurrent.
Count 5:	4 years’ imprisonment, concurrent.
Count 6:	8 years’ imprisonment, concurrent.
Count 7:	4 years’ imprisonment, concurrent.
Count 8:	8 years’ imprisonment, concurrent.
Count 9:	4 years’ imprisonment, concurrent.
Count 10:	8 years’ imprisonment, concurrent.
Count 11:	6 years’ imprisonment, concurrent.
Count 12:	4 years’ imprisonment, concurrent.
Count 13:	5 years’ imprisonment, concurrent.

Total: 15 years’ imprisonment.

Order made under Article 5(2) of the Sex Offenders (Jersey) Law, 2010 that a period of 15 years elapse before the Defendant is permitted to apply to no longer be subject to the notification requirements to commence from date of sentence.

Restraining Order made under Article 10(4) of the Sex Offenders (Jersey) Law, 2010 to commence from date of sentence for a period of 15 years with the conditions listed above.

S. C. Thomas, Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE commissioner:

1.        The Defendant is 43 years of age and was convicted by a jury of two counts of rape and eleven counts of indecent assault.

2.        We will first deal briefly with the facts of the offences.  There were two victims of these offences.

3.        He has convictions for offences of violence and dishonesty but none for sexual offences.

4.        The two offences of rape were committed against Victim 1.  She is now aged 14 but was aged between 6 and 10 at the time of the offences.  These were individual offences of rape and were not charged as specimen offences.  There is no need to go into detail about the offences.  The first offence took place in the lounge.  Before raping her the Defendant locked the door and closed the curtains.  He removed her clothes and his own and then penetrated Victim 1’s vagina with his penis.  The attack did not last long as someone came to the front door and the Defendant stopped.  The aggravating factors of this offence are the age of Victim 1 at the time, she was very young, the place where it happened, in her own home where she was entitled to feel safe.  It was accordingly a grievous and serious breach of trust.  

5.        The victim of the eleven indecent assaults was Victim 1’s older sister Victim 2.  She is 3 years older than Victim 1.  The charges are in general specimen counts and it was the prosecution case clearly accepted by the jury that over a roughly 2 year period the Defendant regularly indecently assaulted Victim 2.

6.        Victim 2 did not go to bed until her siblings were in bed. The Defendant on a regular basis made her go into another bed and sexually assaulted her there.  He got into bed with her and removed all her clothes.  He rubbed her breasts; digitally penetrated her vagina and she was able to feel his erect penis pressing up against her.  He would also on occasions insert his hand between her buttocks.  She tried to get away from him on occasions by going into her own bedroom but he would follow her there and normally she was required to spend the whole night in his bed only getting up shortly before her mother returned home.  Assaults took place on occasions in other parts of the house.  The offences were persistent and serious.

7.        In relation to both children the defendant was able to overcome their will.  He was described as being an alpha male.  While allegations have been made of actual violence by the Defendant, we ignore them for the purposes of deciding the appropriate sentence as there have been no verdicts in relation to them and those parts of the prosecution case in opening this sentence we ignore.

8.        In Victim 2’s case the aggravating features are her age at the time; the persistence of the offending and the fact that they occurred in her own home where she was entitled to feel safe.

9.        We have read and considered victim statements from both Victim 2 and Victim 1.  While we ignore Victim 1’s views as to the appropriate sentence, it is clear from the contents of both statements that they have both suffered greatly as a result of these offences.

10.      We have also considered statements from a clinical psychologist who has examined the two children and a social worker who has been involved in their care.  We are satisfied on the contents of those statements that these two children have been severely damaged by the abuse that they have suffered and that that will almost certainly affect them to some degree for the rest of their lives.

11.      There can be no doubt that these are very serious offences and it is clear that a long sentence of imprisonment will have to be imposed to properly reflect their gravity and the impact that they have had on the children. In relation to the defendant we have read a social enquiry report which concludes that he presents as a high risk of further sexual offending.

12.       In order to reach the correct sentence we have considered the sentencing conclusions of the Crown, the submissions of the defence and various authorities which are included in the bundle.  We regard the most important of the authorities as the Court of Appeal decisions in the conjoined appeals of K -v- A-G and AG -v- F [2016] JCA 219.

13.      There are a number of other first instance decisions which are included in the bundle which we have considered which assist us to conclude what the general level of sentence for these offences is in Jersey.

14.      Reference is made in various authorities to the Sentencing Guidelines for these offences or their equivalent produced by the Sentencing Council for England and Wales.  Those guidelines are included in our sentencing bundles. 

15.      On the Jersey authorities that we have considered, we interpret the relevance of the Sentencing Guidelines in this way.  They are of no binding authority in this Court and the Jersey courts set the appropriate level of sentence for these type of offences independent of the guidelines.  The Jersey courts however recognise the assistance that can be gained from consideration of the guidelines as to some of the aggravating and mitigating factors of these offences.  So the starting points we have taken from considering other Jersey cases so as to ensure a level of consistency and in determining the aggravating and mitigating factors we have been assisted, although not bound, by the analysis of them included in the guidelines.  We are satisfied that the Jersey courts over recent years following guidance from the Court of Appeal have increased the level of sentences for these type of offences due to their being more evidence considered by the Court of the effect of these offences on the victims as we indeed have in this case.  Having considered the more recent sentences imposed by the Royal Court in similar offences, we consider that the general level of sentence proposed by the Attorney General in this are justified by authority.

16.      While consideration of other cases can give a general level of sentence, the facts of each case are different.  No case is identical to any other and therefore individual judgment has to be applied to each case.

17.      In any case where there are a large number of charges and more than one complainant the Court has to make an initial decision whether the sentences should all be concurrent or consecutive.  The Crown suggest in this case that the sentences should all be concurrent.  While there is nothing wrong in principle in passing consecutive sentences to reflect that there are different complainants, and that is often done, all sentences are subject to the totality principle, where a Court having decided the individual sentences has to stand back and ask whether the consequent total sentence is too long.  The consequence and result of that exercise will sometimes be to lead to a reduction in some sentences which may be seen by the public as minimising the seriousness of those crimes.

18.      An alternative approach which avoids this difficulty is to make all the sentences concurrent but increase what might otherwise might have been the sentence for the most serious of the offences so that it reflects at least to some extent the totality of the offending.  That is the approach suggested by the Crown in this case and we agree.  The Crown have attached a particular figure to the uplift they propose.  We do not propose to do that.  We have looked at the overall totality of the sentences in order to reach the overall figure. 

19.      For reasons which I have already set out I have directed and the Jurats have concluded that they should not differentiate between the sentences on Count 1 and 2.  The principal question that the Jurat’s have had to decide is the sentence on Count 1 and Count 2 to reflect the rapes and to some extent to reflect the overall offending.

20.      The Crown conclusions are 16 years on Count 1 and 15½ years on Count 2.  In reaching the appropriate sentence the Jurats have decided not to differentiate between Counts 1 and 2 for the reasons I have given.  Also there has been a further slight reduction because the prosecution have relied in reaching their conclusions on actual violence committed by the Defendant towards the two girls which has not been the subject of a finding of guilt.  We do however accept as I have already indicated that the Defendant got his way by using his position as a forceful and dominant person.  All the other sentences will be concurrent.  On Counts 1 and 2 the sentences will be one of 15 years’ imprisonment, as I have indicated all the sentences are to be concurrent.  On counts 3, 5, 7,9,12 and 13 which relate to touching of Victim 2’s breasts and indecently touching her in that way the sentence will be 4 years.  On Counts 4, 6, 8 and 10 which relate to digital penetration of Victim 2’s vagina the sentence will be 8 years. On count 11 the sentence which relates to insertion by the Defendant of his hand between Victim 2’s buttocks the sentence will be 6 years.  All those sentences to run currently making a total of 15 years imprisonment.

21.      In relation to ancillary orders the prosecution invite the court to make an order that the Defendant who is already subject to the notification requirements cannot apply for the notification requirements to be lifted for a period of 10 years.  As he will remain in prison for the next 10 years we do not consider that period to be long enough and as we making the order from today’s date we make the order for 15 years to cover the first 5 years of his release.

22.      Similarly in relation to a restraining order we are satisfied on the basis of his convictions that the Defendant poses a threat of serious sexual harm to the public and that an order is necessary to protect the public from serious sexual harm.  Again we consider that the appropriate duration of that order is 15 years from today’s date to cover the first 5 years that he is at liberty.

Authorities

K -v- A-G and AG -v- F [2016] JCA 219. 

Valler v AG [2002] JLR 383. 

AG v Donnelly [2009] JRC 170. 

AG v C [2015] JRC 033A. 

AG v T [2017] JRC 169. 

AG v S [2017] JRC 194A. 

AG v W [2018] JRC 061. 

AG v P [2018] JRC 151. 

Sentencing Council:  Sexual Offences Definitive Guideline 2014

Millberry [2002] EWCA Crim 2891. 

Sex Offenders (Jersey) Law, 2010.