Superior Number Sentencing - grave and criminal assault - rape - sexual penetration - voyeurism - reasons for the sentence

[2025]JRC081

Royal Court

(Samedi)

24 March 2025

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Christensen MBE, Austin-Vautier, Averty, Le Cornu, Cornish, Le Heuzé, Opfermann, Entwistle and Berry

The Attorney General

-v-

Gavin Neil Roberts

M. R. Maletroit Esq., Crown Advocate.

Advocate O. A. Blakeley for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 8 November 2024 this court sentenced Gavin Neil Roberts (“the Defendant”) on the following counts on two indictments:

First indictment

Count 1: grave and criminal assault;

Count 2: rape;

Counts 3 and 4: two counts of sexual penetration without consent;

Counts 5 and 6: two counts of grave and criminal assault;

Counts 7 and 8: two counts of assault.

Third indictment (the second indictment having been subsumed into the first indictment)

Counts 1, 4 and 6: three counts of voyeurism.

2.        We imposed the following sentences:

First indictment

Count 1: grave and criminal assault – 18 months imprisonment;

Count 2: rape – 11 years imprisonment;

Count 3: sexual penetration without consent – 7 years imprisonment;

Count 4: sexual penetration without consent – 7 years imprisonment;

Counts 1, 3 and 4 to run concurrently with Count 2.

Count 5: grave and criminal assault – 2 years imprisonment;

Count 6 grave and criminal assault – 2 years imprisonment;

Counts 5 and 6 to run concurrently with each other but consecutive to Count 2.

Count 7: assault – 9 months imprisonment;

Count 8: assault – 12 months imprisonment;

Counts 7 and 8 to run concurrently with each other but consecutive to Count 2.

Third indictment

Count 1 – 12 months imprisonment;

Count 4 – 12 months imprisonment;

Count 6 – 12 months imprisonment;

All concurrent with each other but consecutive to the total sentence on the First Indictment making a total of 15 years imprisonment.  We also made orders under the Sexual Offences (Jersey) Law 2018 and under the Domestic Abuse (Jersey) Law 2022.

3.        On that occasion we indicated that we would provide written reasons for our decision.  These are those reasons.

Preliminary observations

4.        The Superior Number of this Court in this hearing comprised 9 Jurats instead of the usual 5.  The reason for doing so was to provide the broadest spectrum of judicial opinion in sentencing so that this Court could set out, in as an authoritative manner as possible, its approach to sentencing cases of rape of adults.  The necessity for doing so arises to our mind out of an apparent tension in recent cases relating to sentencing for rape and, in particular, the relevance or otherwise of the guidelines provided by the Sentencing Council of England and Wales (“the SC Guidelines”).

5.        In order to do so we asked the Attorney General to provide detailed submissions relating to the sentencing of rape in Jersey and the use or otherwise of guidelines.  We are grateful to him for those thorough submissions, which have informed the decision that we have taken and which we refer to hereafter.

6.        An unusual feature of this case was that one of the Defendant’s victims, the victim in the rape count (Count 2), asked us to permit her to read her Victim Personal Statement aloud in open court.  She also waived her right to anonymity.  We agreed that she might read her Victim Personal Statement having been notified by her that to do so would help her move on with her life and provide an element of closure.  She did read her statement.  There was no suggestion from the defence that they wished to cross-examine her on any part of it and we have not had to decide what, if any, the ambit of such cross-examination could have been.  However, leaving that question for determination on a future occasion should it arise, in our judgment it should be open to victims, particularly of serious sexual assaults, if they wish to do so, to read their Victim Personal Statement in open court.

Summary of the principles informing the Court’s approach

7.        We begin by emphasising the constitutional position.  This was conveniently set out in the judgment of a 7 judge Guernsey Court of Appeal in Wicks v Law Officers of the Crown [2011-12] GLR 482 in the following passages, which have frequently been cited with approval in this jurisdiction:

“16  We start by addressing the fundamental constitutional issue.  Guernsey is a separate jurisdiction and has its own legal system.  It is, therefore, free to set its own sentencing levels as the Island’s courts think appropriate for Guernsey.  Guernsey no more has to follow sentencing practice in England than it has to follow sentencing practice in Scotland, Northern Ireland, Jersey or, for that matter, France; it can, of course, in exercise of its autonomy choose, but for the same reason of autonomy cannot be compelled, to do so.  In our judgment, no authority is required to justify this elementary statement of the constitutional position which has been regularly stated on previous occasions…

…

17  The difficulty with the observation in Gunter referred to in para 12 above is that it appears to suggest that, when the elements of the offence in question and the statutory maximum sentences are the same in Guernsey as in England and Wales, the Guernsey courts may only depart from English sentencing levels if there is a significant difference in social or other conditions between Guernsey on the one hand and England and Wales on the other.  We must respectfully disagree.  Such an approach is wholly inconsistent with Guernsey’s position as a separate jurisdiction.  Naturally, where the elements of the offence in question are comparable in the two jurisdictions and the statutory maximum sentence for the offence is also comparable, the Guernsey courts may well derive considerable assistance from the sentencing practice applied in England because of its larger size and the greater number of cases which will come before the courts of that jurisdiction.  A recent example of this court’s choosing of its own volition to apply English sentencing levels is the decision in Burton (2) itself (which concerned an offence of rape).

18  But there is no need for there to be a significant difference in social or other conditions for the Guernsey courts to take a different approach from England and Wales and adopt a different level of sentencing.  The Guernsey courts may simply consider that the sentencing levels in England are either too high or too low and should not be followed.  They are perfectly free to do so.  It is wrong to start from the position that sentencing levels in England are correct and that there must be some specific reason to depart from them.  Rather, the position from which it is right to start is that the Guernsey courts must determine the appropriate sentencing levels for offences committed in Guernsey and that, in doing so, they may or may not derive assistance from what is done in England and Wales or in any other jurisdiction.”

8.        We will develop these matters hereunder but, in essence, the approach that this Court has identified as the preferred one in determining sentencing for rape of an adult has the following features:

(i)        We start by stating, as indeed we must and wish to, that rape in any of its manifestations is a serious crime which is capable of having profound effects on the victim of it.  On any analysis it is, and involves, the domination of the victim by the rapist, the over-riding of the victim’s free choice and consent and the violation by penetration of the victim’s body and of the victim’s self.  These seem to us to be the common features of all rapes.  However, rape can, of course, encompass a wide range of behaviour.

(ii)       In recognition of the fact that any single rape may have a variety of features and occur in a number of different possible contexts and circumstances, the Court should approach the sentencing for rape with flexibility and be alive to all the features within the offending that are material in assessing harm and culpability, as well as the aggravating and mitigating factors, in order to arrive at the appropriate sentence.

9.        The historic approach of the Court in relying upon the English judgment in Millberry -v- R [2002] EWCA Crim 2891 (“Millberry”) we no longer feel to be of assistance.  Millberry was a case that set out judge-made guidance that was itself based upon recommendations of the Sentencing Advisory Panel.  That case is now showing its age and is no longer of assistance and we would hope it would not need to be cited in this court in the future.

10.     The SC Guidelines have been useful in identifying such factors as harm and culpability.  We do not view them as exhaustive in those respects necessarily, nor do they have any applicability in determining for this Court what the appropriate sentence in any one case should be in terms of starting points and finishing points.  We do not rely upon the levels of sentencing set out in those guidelines.  The one qualification to this general principle is that it is, in our view, permissible as a cross-check, but nothing more, to look at what the application of the SC Guidelines would have given rise to by way of sentence.  It is, however, for this Court to set its own sentencing policy for matters such as this.  That policy does not need the creation of specific guidelines, a matter which we will also deal with hereunder.

11.     In our judgment, viewed historically, sentences for rape of an adult in Jersey have been somewhat lower than we view as appropriate in modern times.  We understand much better now (and it is likely that understanding will develop) the effect and consequences on the victim of rape.  On any analysis, as we have said, it is a deeply intrusive and abusive act that subjugates the will of an individual as to how their own body might be used, to the will of someone who is using it for sexual gratification or domination or other reasons personal to them.

12.     Accordingly, this Court is likely to impose higher sentences than might hitherto have been the case, reflecting not only current understanding as to the consequences of rape, but also what we see to be the mores and standards of modern society.

SC Guidelines

13.     We fully understand the necessity for the SC Guidelines in England and Wales, where there is a very considerable number of judges who alone are responsible for setting the sentence in any particular case.  It is essential to provide for consistency in all parts of England and Wales.  The position is not the same in Jersey.  Serious offending such as rape comes before the Superior Number of the Royal Court.  The sentence is determined by Jurats of the Royal Court representing the views of right-thinking Islanders.  There are only 12 Jurats and 5 or more will sit on each case for a Superior Number sentencing.  Furthermore, the Crown presents sentencing conclusions in which it reminds the Court of the relevant cases and principles and moves for a particular sentence applying these principles to the facts of the case.  There is, accordingly, much less risk in our view of inconsistency and a much greater likelihood of a consensus reflecting public sentiment and understanding than in any sentencing decision of a single judge sitting alone, as would be the case in England and Wales.

14.     Accordingly, in our judgment, we can see the benefit of a framework for sentencing in Jersey but not for rigid guidelines.

Rape sentencing in Jersey

15.     As we have already said, we are grateful to the Attorney General for his comprehensive survey of the history of rape sentencing in recent decades in the Island.  What follows is taken to a significant extent from the Attorney General’s written submissions amended or expanded upon as we have seen fit.

16.     We refer first to the development of sentencing practice in England and Wales.  Sentencing practice for sexual offence cases is governed by the SC Guidelines.  Judges there are obliged by statute to follow the SC Guidelines unless they consider that, in a particular case, it would be contrary to the interests of justice to do so.

17.     The SC Guidelines provide a structured decision-making process with the judge determining the appropriate level of sentence by following a number of steps.  The first step is to determine the offence category by considering which harm and culpability factors are present.  Once the relevant category has been determined, the SC Guidelines indicate a sentencing starting point.  The sentence is then adjusted upwards or downwards within a suggested sentencing range to take into account any aggravating or mitigating features.  A further reduction is applied where the defendant has pleaded guilty or assisted the prosecution.  In cases concerning more than one offence, the judge must also consider the principle of totality.

18.     The introduction of the SC Guidelines marked a significant change in the sentencing landscape in England and Wales.  Prior to the SC Guidelines, rape offences were sentenced in accordance with the guidelines contained in Millberry above. 

19.     The Millberry guidelines set out the following starting points for rape following a contested trial:

(i)        Five years’ imprisonment for a single offence of rape on an adult victim by a single offender absent any of the aggravating or mitigating features referred to below.

Eight years’ imprisonment where any of the following features are present:

(a)      the rape is committed by two or more offenders acting together;

(b)      the offender is in a position of responsibility or trust towards the victim;

(c)      the offender abducts the victim and holds him or her captive;

(d)      rape of a child, or a victim who is especially vulnerable;

(e)      racially aggravated rape, and other cases where the victim has been targeted due to his or her membership of a vulnerable minority;

(f)       repeated rape in the course of one attack; and,

(g)      rape by a man who is knowingly suffering from a life-threatening sexually transmissible disease, whether or not he has told the victim of his condition and whether or not the disease was actually transmitted.

(ii)       Fifteen years’ imprisonment for a campaign of rape, where the offender has repeatedly raped the same victim over a course of time or for cases involving multiple victims.

20.     The Court of Appeal in Millberry recognised that guidelines can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach.  It was therefore important to stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to these circumstances.  The initial points set out above are just that and are not to be adopted as starting points in the manner utilised in drug trafficking cases.

21.     As regards mitigating factors, the Millberry guidelines confirm the need to make a suitable reduction for a guilty plea, youth, and the defendant’s good character, albeit the Court of Appeal considered that previous good character would not justify a substantial reduction of what would otherwise be the appropriate sentence.

22.     The Millberry guidelines set out nine aggravating factors:

(i)        the use of violence over and above the force necessary to commit the rape;

(ii)       use of a weapon to frighten or injure the victim

(iii)      planning;

(iv)     an especially serious physical or mental effect on the victim;

(v)      further degradation of the victim;

(vi)     break and entry into the victim’s address;

(vii)     the presence of children;

(viii)    the covert use of a drug to overcome the victim's resistance and / or obliterate his or her memory of the offence; and

(ix)      a history of sexual assaults or violence by the offender against the victim.

23.     Thus, the Millberry guidelines sought to categorise rape offences depending on seriousness, which would be assessed by the presence or absence of certain factors.  Most of those considerations were later incorporated into the SC Guidelines, which provided a more formulaic method to categorise the seriousness of sexual offences with reference to harm and culpability factors, suggested sentencing ranges, and a more comprehensive list of aggravating and mitigating factors.

24.     Prior to AG v Vieira [2021] JRC 293 (“Vieira”), the Millberry guidelines were routinely cited in Jersey when sentencing rape offences.  Following Vieira, reference to the SC Guidelines was made in preference to the Millberry guidelines.  The key reasons for reference to English sentencing practice were: (a) the absence of local sentencing guidelines; and (b) the relatively low volume of sexual offence cases (compared to other jurisdictions such as England and Wales) and consequent lack of comparative case law.  The fact that the courts used English sentencing levels in cases of rape as a cross-check was entirely consistent with the constitutional position as described in the passages from Wicks quoted above.  We note in passing that the number of cases involving sexual offences brought before the courts has increased which has and will provide more comparator cases.

25.     Sentencing levels in sexual offence cases were the subject of the Court of Appeal’s consideration in K v Attorney General (“K”); Attorney General v F [2016] JCA 219 (“F”).  Indeed, those proceedings led to a general review of local sentencing levels for sexual offences in the years that followed.

26.     The case of K concerned the sexual abuse of a child.  The Attorney General in that case submitted that sentences for certain contact sexual offences in Jersey were materially lower than the levels of sentence for equivalent offences in England and Wales, where sentences for such offences had been reviewed and increased following the introduction of the SC Guidelines.  The Attorney General submitted that there was no valid reason for such offences to be treated less seriously in Jersey than in England and Wales, and he invited the Court to sentence with the SC Guidelines firmly in mind.  It was common ground that applying the SC Guidelines would result in materially different conclusions.

27.     In considering the approach to sentence, the Royal Court noted that “It is well established that this Court applies the guidelines described in the English case of Millberry when sentencing for offences of rape” (see Attorney General v K [2016] JRC 158, paragraphs 29 and 44).

28.     The Royal Court considered what regard should be had to current sentencing practice in England and Wales, which had moved on since the decision in Millberry as a result of the SC Guidelines.  The Court’s conclusions were later summarised by the Court of Appeal in K at paragraph 27 in the form of the following five propositions:

“(i) Jersey is a separate jurisdiction and the courts are entitled to fix their own sentencing levels.  The Royal Court is not in any sense bound by the SC Guidelines.

(ii) The analysis of aggravating and mitigating factors which is frequently set out in the SC Guidelines often, perhaps even usually, provides a convincing rationale for the assessment of the seriousness of the offending which can conveniently be adopted in Jersey.

(iii) The Court would be influenced by the sentencing levels envisaged by the SC Guidelines when considering the conduct of K because it considered the sentencing levels to be correct for that conduct.

(iv) The Court should decide on the appropriate sentence for the offence before it in every case, and it did not follow that because the SC Guidelines were helpful in the case of K, they would always be helpful to enable the Court to arrive at the correct level of sentence for that particular offence in the jurisdiction of Jersey.

(v) There was no reason in principle why it should be thought right for Jersey to impose lower sentences for an offence as committed by K than would have been imposed in England and Wales.”

29.     The Court of Appeal emphasised that sentencing levels set out in the SC Guidelines were not applicable in Jersey, and concluded that “a simple transposition of the Guidelines to Jersey is neither desirable nor legitimate” (paragraph 29), rather:

“it is for the Jurats to settle upon the sentencing policy they consider to be right. They may wish to have regard to sentencing levels in England and Wales but there is no presumption that these should be followed in Jersey for all the reasons set out at paragraph 28 above and if the Court chooses not to adopt such sentencing levels, there is no obligation to justify why it has not done so. The Court does not start from the premise that the Guidelines provide a prima facie correct level of starting points or sentencing ranges and indeed the rigidity of the Guidelines, with a direct consequence in some cases of what appear to be surprisingly severe sentences, demonstrates why in this jurisdiction that is not appropriate.” (paragraph 32)

30.     The Court of Appeal did not endorse the starting points nor the anticipated finishing points set out in the SC Guidelines but considered that it was appropriate in certain cases to have regard to the factors which, according to those Guidelines, would assist an English Court to categorise the severity of the offence (paragraph 33).

31.     The Court of Appeal made the following concluding remarks, emphasising that the ongoing review of sentencing levels for the nature of offending in that case was a matter for the Royal Court:

“The comments which we have made in this judgment suggest that the Royal Court may wish to review upwards sentences for indecent assaults involving digital penetration of children in future cases. That is not to say that sentences at this level will necessarily be appropriate for similar cases in the future. That will be a matter for the Royal Court to consider in the first instance, should such cases arise.” (paragraph 54).

Review of sentencing levels in cases involving child victims since K and F

32.     To illustrate the evolving nature of sentencing of sexual offending it is useful to look at the approach of the court considering sexual offences concerning children.  Use of the SC Guidelines and the upward review of sentences in relation to sexual offences against children was considered further in the following cases.

33.     In AG v T [2017] JRC 169, the Royal Court stated: “The position now is that the Court has started a process of review of sentencing levels imposed for sexual offences by reference to the Guidelines. They were found to be of assistance in AG v K, and we found them of assistance in this case. We have not considered the Guidelines for other kinds of sexual offence, but if they are found to be of assistance, then defendants can expect to be sentenced accordingly.”  (paragraph 35)

34.     In AG v S [2017] JRC 194A, the Court commented:

“…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.” (at paragraph 11)

35.     In AG v W [2018] JRC 061, the Court commented that it found “reference to the guidance on harm, culpability and aggravating and mitigating features [in the SC Guidelines] to be of assistance.”  (at paragraph 36).

36.     These cases appear to us to demonstrate that:

(i)        Following K and F, the Royal Court began increasing sentencing levels in cases involving sexual offences against children; and,

(ii)       The Royal Court considered it helpful, when determining the appropriate sentence in such cases, to be referred to the harm and culpability factors so as to assess the seriousness of the offence, as well as the aggravating and mitigating features, set out in the SC Guidelines.

37.     Reference to the SC Guidelines for these purposes became usual practice.  According to the Attorney General’s analysis, the SC Guidelines have been cited in every sentencing hearing concerning sexual offences involving children since 2016.

38.     Indeed, in AG v W [2021] JRC 329, when the prosecution omitted to make any reference to the SC Guidelines, the Court adjourned the sentencing hearing for further research to be undertaken.  In that case, the Court found reference to the SC Guidelines helpful, and commented on their application as follows: “we did not apply them in so far as the levels of sentence or starting points were concerned, regarding the same merely as a useful cross check and recognising this Court was quite entitled to impose sentences that were outside those that might be imposed in England and Wales.”  (paragraph 8).

39.     Thus, as regards cases involving sexual offences against children, there is now an established body of case law in which the Court has referred to the harm and culpability factors, and the aggravating and mitigating features, outlined in the SC Guidelines.  The Attorney General has developed his sentencing conclusions, and defence counsel have developed their submissions, based on that approach.

Approach to sentencing sexual offences against adults following K and F

40.     The Royal Court has also re-considered its approach to sentencing sexual offences against adults in recent years.  The review of sentencing levels in these cases does not stem from the Court of Appeal’s dicta in K and F (which specifically concerned indecent assaults against children).  Rather, there has been a more nuanced development over time, and the judgments of the Court have not been entirely consistent (as noted by the Court of Appeal in Nunes -v- AG [2024] JCA 160 at paragraph 39).

41.     Prior to Vieira, the Court’s approach to sentencing such cases, and its use of English sentencing guidelines, is shown by the following cases.  In AG v De Oliveira [2017] JRC 011, on a guilty plea the defendant was sentenced to two years and eight months’ imprisonment in respect of the indecent assault of a stranger victim late at night on the streets of St. Helier.  The Crown referred to the Court of Appeal decision in K and F and invited the Court to find that sentences for indecent assault generally (not just in relation to child victims) had fallen behind the levels of sentence for equivalent offences in England and Wales.  The Court did not agree that K and F suggested that sentencing levels for all forms of indecent assault needed to be reviewed upwards but stressed that it was open to the Court to do so in any given case (paragraph 11).

42.     In AG v C [2019] JRC 074, after a trial, the defendant was sentenced to a total of eight years’ imprisonment for indecent assault and rape.  In moving conclusions, the Crown sought to persuade the Court that there had been a shift away from the Millberry guidelines and referred to current sentencing practice in England and Wales under the SC Guidelines.  The Royal Court noted that it had previously disapproved of the use of the sentencing ranges and starting points contained within the Guidelines, but approved consideration of the factors that indicate seriousness (see paragraph 15).  The Court concluded that Millberry remained good authority:

“We are not persuaded that the dicta quoted above set out at paragraph 54 of K –v-AG and AG-v-F points to an ineluctable increase in sentencing for sexual offences such that it should be taken as almost axiomatic. That dictum applies specifically to digital penetration of children and the children in that case were significantly younger than the Victim in this case.” (paragraph 25).

“We do not think that the cases put before us by the Crown do assist us with regard to the appropriate range nor do we think that the statements within those cases, as important as they are when applied to cases of a similar nature, generally lead to the conclusion that the sentences for all offences of indecent assaults and rape are or should be increased nor that the Millberry guidelines in general are now outdated or to be disregarded.

We have regard to the Guidelines as to features but not as to quantum. In our judgment the Millberry approach still falls to be considered when dealing with cases not involving children.” (paragraphs 34 and 35).

43.     In AG v Jordan [2019] JRC 081, on a plea of guilty the defendant was sentenced to a total of seven years’ imprisonment for one count of making indecent photographs of children, two counts of indecent assault and one count of attempting to pervert the course of justice.  When considering the approach to sentencing for the indecent assault counts, the Court emphasised that the Court of Appeal decision in K and F concerned sexual offences against children, not adults:

“It was appropriate for the prosecution to refer the Court to the Court of Appeal decision in Attorney General v K and F as that case gives guidance as to the extent to which the Court in Jersey can have regard to the English Guidelines and it marked a change in the sentencing landscape for sexual offences, but the Court was careful to bear in mind that both cases under review by the Court of Appeal involved children, whereas this Court was concerned with two indecent assaults involving two adults, which took place when they were in an individual relationship with the defendant.” (paragraph 19).

44.     In AG v Dobrin et al [2019] JRC 097 (“Dobrin”) the five defendants were each sentenced to ten years’ imprisonment or youth detention having pleaded guilty to two counts of rape.  The case concerned a joint enterprise for the vaginal and oral rape of a vulnerable victim.  The Crown submitted that the Millberry guidelines no longer provided an appropriate starting point for sentencing rape offences against adults, and preferred reference to the SC Guidelines.  With further reference to the Court of Appeal’s decision in K, the Court made the following findings about the approach to be followed when sentencing rape cases:

“It is not the case therefore that there is a general presumption that sentencing levels envisaged by the Guidelines in England and Wales are the appropriate sentencing levels in Jersey. Furthermore, the Royal Court is not encouraged by the Court of Appeal to apply a mechanical approach to sentencing in these cases.

It is regrettable that despite the number of occasions when this Court has made it plain that the Sentencing Guidelines, which have been published for use in England and Wales where there is a statutory requirement to follow them, do not set levels which should necessarily be applied in Jersey, conclusions frequently encourage the Court to do just that. The Guideline sentencing decisions in this Court and the Court of Appeal have consistently indicated that the analysis of what are relevant factors of harm and culpability, or aggravation or mitigation, as set out in the Guidelines are frequently very useful indicators of the relevant factors to be taken into account by the Sentencing Court. However, that is as far as it goes. We decline to analyse the conduct in the present case by categorising it as falling within category 1, 2 or 3, or category A or B as the case may be as defined in the English Guidelines. That would be an unhelpful approach because it would immediately invite comparison with the actual figures which the Guidelines contain.

We turn now to the decision in R v Millberry, which has been a guideline English case applied in Jersey from time to time in the past. That case set starting points of five years, eight years and fifteen years, having regard to different features which might appear in particular cases, recognising that a life sentence would not be inappropriate where the offender “has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time.” This latter approach was adopted by the Royal Court in the case of AG v C [2015] JRC 033A and affirmed on appeal, at C v AG [2015] JCA 159.” (paragraphs 17 to 19).

45.     The Court, in Dobrin, did not make a positive decision as to whether the Millberry initial sentencing points were to be regarded as useful guidance.  The Court adopted a more flexible approach, commenting: “we have taken a step back and looked at the circumstances as a whole” (paragraph 33).

46.     In AG v Kean [2019] JRC 155 (“Kean”) the defendant, after a trial, was sentenced to a total of seven and a half years’ imprisonment for rape and indecent assault.  The Court considered that it may have reference to the factors contained in the SC Guidelines as distinguishing some offences from others in terms of seriousness, but the Court did not follow the starting points nor the anticipated finishing points set out therein.

“Sentencing is, in our judgment, an art rather than a science and unless there is what is acknowledged to be a guideline authority from the courts of Jersey, the Court will reach its own conclusion as to the eventual sentence based on a consideration of the circumstances in the round. It is entirely understandable that the sentences in a large jurisdiction which are to be imposed by judges in different parts of the country may, in order to achieve consistency, need to be the subject of guidance but in this jurisdiction, with a limited number of courts, that is not a requirement and the Court is entirely at liberty to give what weight it feels just to the specific factors in each of the cases before it whilst paying regard to the sentencing ranges identified from other cases.” (paragraph 11).

47.     As regards the continuing relevance of Millberry, the Court commented:

“In our judgment, the relevance of Millberry lies not in the fact that it is based upon decisions no longer followed or upon the recommendations of a panel which are equally no longer followed but rather that its principles have been adopted by the courts of Jersey as applicable within this jurisdiction. That is not to say that Millberry is any longer to be applied on a formulaic basis, if indeed it ever was, and we note that this Court in Dobrin and others did not follow the starting points in Millberry.

…

This to our mind justifies the continuing reference to Millberry before this Court but also emphasises that the Court retains flexibility to dis-apply it in appropriate circumstances and to reach a sentence which it feels to be justified in the round taking all of the relevant factors into account.” (paragraphs 13 and 14).

48.     Again, the Court adopted a flexible approach and considered sentencing in the round:

“In reaching the above sentence, we took into account the cases placed before us including, specifically, Millberry and Dobrin and Ors and stepped back to view the sentence as a whole.” (paragraph 25).

49.     In AG v B [2020] JRC 110, after a trial, the defendant was sentenced to four and a half years’ imprisonment in respect of one count of rape.  In determining the appropriate starting point, the Court applied the Millberry guidelines, whilst emphasising that the Court maintains a flexible approach:

“Although the court is given guidance as to the starting points to be used in different kinds of rape, the court is also required to take a step back and look at all the facts to identify what seems to be the right sentence for the defendant before it in respect of the particular offence committed. It is why this Court has previously leaned against the application of strict sentencing guidelines and why in particular starting points have not always been adopted – see in particular AG v Dobrin and others. In that case the adoption of a starting point of 15 years in accordance with the authorities might have been regarded as too low and would have resulted in a sentence that the court considered was unreasonably low for some of the defendants, and the court did not adopt it. In other cases we can estimate that the starting point would be regarded as too high for the sentence adjudged to be appropriate. Sentencing is not and has never been regarded as a mathematical exercise in this jurisdiction.

However, the guidance given in Millberry has been adopted by this court in a number of cases previously and we would need good reason to depart from it. We see no reason to do so in this case. Taking a step back, as we are enjoined to do, it results in a sentence we think is appropriate.” (paragraphs 18 and 19).

“Accordingly, on the application of the Millberry guidelines, we think the appropriate starting point is 5 years imprisonment. Having regard to the fact that this was an offence without significantly aggravating features and to the mitigation we have described, we reached the sentence of four and a half years on the single count of rape of which the Defendant was convicted” (paragraph 23).

50.     In AG v Fernandes [2021] JRC 049 the defendant was sentenced to four years’ imprisonment for a single offence of rape following a trial.  The victim could not consent due to her intoxication.  The offence was out of character.  No aggravating features were present, and the Court on the facts of this particular case, applied a small adjustment to reflect that the victim’s conduct reduced the defendant’s culpability.  The victim was assessed as having suffered mild psychological harm.

51.     The Court approached sentence with reference to the Millberry guidelines, emphasising that the Millberry sentencing points are initial points rather than starting points in the sense that is applied in drugs cases.  When we use the expression “initial point” we are referring to a nominal point before we take into account aggravating or mitigating factors.  The Court took an initial point of 5 years and then took a step back to consider sentence in the round:

“We take the Millberry initial point of 5 years. Perhaps I can just emphasise that although in AG v B and perhaps in AG v Dobrin it was described as a starting point, it is an initial point, because it is not to be treated in the same way as the starting points which the court applies in drugs cases. It is an initial point of 5 years.” (paragraph 10).

“We have considered all the mitigation put to us and the features of the case which I have set out and in accordance with the authorities we have taken a step back and decided what we think is the right sentence.” (paragraph 11).

The Court’s approach in Vieira

52.     The Court’s approach to sentencing sexual offences against adults took a shift in Vieira, in which the defendant was sentenced for the rape of his (adult) colleague.  In his sentencing conclusions as originally drafted, in line with the above-mentioned case law, the Attorney General referred to the Millberry guidelines.  No reference was made to the SC Guidelines.  At the sentencing hearing on 1 November 2021, the Court expressed that it wished to be referred to the SC Guidelines.  The sentencing hearing was adjourned, and Counsel were directed to file submissions analysing the sentence that would apply in England and Wales on an application of the SC Guidelines for the Court to use as a comparison.  The Attorney General filed Addendum Conclusions.  Having provided a thorough analysis of the approach to sentencing sexual offences against adults, with reference to the relevant cases since K and F (a similar exercise to that set out above), the Attorney General provided the following analysis:

“Application of the Guidelines in this case

26.      For the purposes of comparison, the Court has asked to be addressed on the starting point that would apply if the Guidelines were applied to the instant case.

27.      In the Crown’s view, the rape offence would fall within Category 2B of the Guidelines, due to the severe psychological harm suffered by the victim, and the absence of any culpability factors that would place the case within Category 2A.

28.      According to the Guidelines, Category 2B cases warrant a starting point of 8 years’ imprisonment, and a sentencing range of 7 to 9 years’ imprisonment.

29.      According to the Guidelines, the sentence is then adjusted upwards or downwards to take into account aggravating and mitigating factors.

30.      The Crown has identified three aggravating features, as set out in paragraph 18 of the original Conclusions:

i) The offence was committed whilst the defendant was under the influence of alcohol;

ii) The offence was committed in the victim’s home; and,

iii) The offence was committed whilst the victim was asleep.

31.      All three factors are reflected in the list of aggravating features set out in the Guidelines (the second factor falling under the heading ‘location of offence’ and the third factor falling under the heading ‘specific targeting of a particularly vulnerable victim’). For the avoidance of doubt, the Crown considers that the victim’s vulnerability by virtue of her state would be covered by that aggravating factor in the Guidelines (rather than vulnerability by virtue of personal circumstances, which is a harm factor taken into account when determining the category for the offence).

32.      In terms of personal mitigation, the defendant has the benefit of previous good character. However, the Guidelines state that “In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.”

33.      Applying the Guidelines, the Crown considers that the starting point in the instant case would in the region of 8 years and 3 months’ imprisonment.

34.      Under English sentencing practice, the reduction to be applied for a guilty plea is determined in accordance with the Sentencing Council’s Guideline for Reduction in Sentence for a Guilty Plea. A reduction of one-third should normally be applied where the guilty plea is entered at the first stage of proceedings. After the first stage of proceedings, the maximum level of reduction is one-quarter (and is decreased to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date). In the instant case, the defendant pleaded not guilty on indictment in the Royal Court, and maintained that plea until after the plea and directions hearing.

35.      Thus, on a direct application of the Guidelines, the Crown considers that a starting point of 8 years and 3 months’ imprisonment would be appropriate in this case, with a maximum reduction of 25% for the guilty plea. Rounding down to the nearest month, that would lead to a sentencing finishing point of 6 years and 2 months’ imprisonment.”

53.     The Attorney General’s analysis in that case demonstrated the difference between the Millberry approach and the SC Guidelines.  The key difference between the two approaches appeared to be that the severe psychological harm suffered by the complainant is not taken into account when assessing the Millberry initial sentencing point but is a principal factor when determining the harm category (and the applicable starting point) under the SC Guidelines.  Psychological harm to the victim is not one of the factors listed in paragraph 20 of Millberry which would uplift the initial point to 8 years’ imprisonment.  The factors that warrant a higher starting point under the Millberry principles are not as comprehensive as the harm and culpability factors which dictate the categorisation of a case under the SC Guidelines.

54.     The Attorney General in that case submitted that the case law extracts set out above demonstrated that the Court has taken a cautious approach to the dictum in K and F and has not considered that it suggests there should be an upwards review of sentencing levels in cases concerning sexual offences against adults.  The Court has also discouraged Counsel from making a direct comparison to the sentencing starting points or anticipated finishing points in the SC Guidelines.

55.     The Attorney General accepted that the SC Guidelines have no direct application in Jersey.  It is for the Jersey Courts to fix and to review their own sentencing levels.  Where there are no local sentencing guidelines, the Court is free to adjust sentencing levels as and when appropriate, and in doing so, the Court may be assisted by comparing sentencing levels in other jurisdictions.  The sentencing practice in England and Wales is a natural point of departure, being the closest major jurisdiction where the elements of many criminal offences (including the sexual offences now provided in the Sexual Offences (Jersey) Law 2018) are identical or very similar.

56.     The Attorney General argued that whilst recognising that the English and Welsh sentencing regime is different to that which applies in Jersey, the Court may find it helpful to look at sentencing levels applied in England and Wales in considering whether local sentencing levels in Jersey are appropriate.  The Crown could not identify any valid reason why the type of conduct in the instant case, rape, would attract a materially lower sentence in Jersey than it would attract in England and Wales, notwithstanding the different sentencing regimes.  Nor could the Crown identify any reason why the psychological harm suffered by the complainant would have less significance in assessing the appropriate sentence in Jersey than it would in England and Wales.

57.     The Attorney General also argued that there was no discernible cogent reason to review upwards the sentences for sexual offences committed against children, but not do so in respect of sexual offences committed against adults.  The same principles would apply.

58.     The Attorney General concluded that, whilst the dictum in K and F may not call for a review of sentencing levels for sexual offences against adults, the Court is free to review whether local sentencing levels are appropriate, and to consider sentencing levels in other jurisdictions such as England and Wales when undertaking any such review.  The Court will of course bear in mind that the SC Guidelines have no direct application in this jurisdiction, and the Court’s task must always be to settle on a sentence which is correct for Jersey.

59.     At the substantive sentencing hearing, the Royal Court departed from the Millberry guidelines and preferred reference to the SC Guidelines for the reasons explained in the following extracts of its judgment:

“16.    In this case, the Crown initially advanced conclusions by reference to Millberry -v R. This case is no longer followed in England and Wales and indeed the decision in Millberry itself, as is clear from the first paragraph of the judgment, was a response to recommendations from the English Sentencing Advisory Panel and advice that had been given by that Panel. The Crown’s conclusions indicated that the factors that might increase or reduce sentence according to the decision in Millberry are not consistent with the factors relevant to assessing culpability, harm, aggravation and mitigation as currently listed by the Sentencing Council Guidelines of England and Wales. These Guidelines, when considering such factors, have frequently been adopted by the Royal Court over the past five years or so. Accordingly, when this first came before the Court on 1st November 2021, the Court expressed doubt about the utility of continuing reference to the case of Millberry, both because of its inconsistency with analysis of aggravating and mitigating factors and because reference to Millberry in respect of identifying starting points for the calculation of the sentence to be imposed is reflective of an approach to sentencing in England and Wales which has now been superseded…

18. …we agree that the Sentencing Council Guidelines do provide a convincing rationale for the assessment of seriousness of the offending which can be and has often been adopted in Jersey. Accordingly, reference to Millberry in this regard is unhelpful and unnecessary. In this case, the aggravating features, which are present in and identified by the Sentencing Council Guidelines, include that the offence took place in the victim’s own home, the place where she was entitled to feel safe, and that the Defendant was intoxicated through alcohol. Neither matter is identified as aggravating features in Millberry. Furthermore, little weight to the psychological impact on the victim is given in Millberry which is perhaps a reflection, as the Defence Advocate observed in this case, of the fact that “the understanding of the psychological impact of these offences has clearly advanced since the decision was reached in Millberry”.

19. Further, as to paragraph 27(v) of the Court of Appeal’s decision in K -v- AG and AG -v- F the Jurats in this case unanimously agreed that there was no reason in principle why it should be thought right for Jersey to impose lower sentences for an offence of this kind than would have been imposed in England and Wales. Accordingly, the decision in Millberry is, in our view, no longer of relevance to the Court in sentencing in sex cases and the Court is unlikely to derive assistance from reference to it.

…

27. Notwithstanding the new landscape for sentencing offenders who have committed sexual offences against children, there have been decisions involving sexual offences against adults where the Court has been persuaded that it is appropriate to consider the approach in Millberry. Millberry has been referred to as of assistance in a number of cases including: AG -v- C [2019] JRC 074; AG -v- Dobrin [2019] JRC 097 (where Millberry was not followed); AG -v- Kean [2019] JRC 155; AG -v- B [2020] JRC 110 and AG -v- Fernandes [2021] JRC 049.”

60.     In respect of offences against child victims for example, the Jersey courts have already begun to build up a body of case law, which makes it increasingly unnecessary to refer to the English guidelines in terms of the sentence that would actually be imposed in England and Wales.

The Court’s approach following Vieira

61.     Following Vieira, the Attorney General stopped referring to the Millberry guidelines in his conclusions for rape cases.  Reference was routinely made to the SC Guidelines instead as well as Jersey comparator cases.

62.     In AG v Freitas [2022] JRC 080, after a trial the defendant was sentenced in respect of offences of illegal entry and sexual touching without consent.  In moving conclusions, the Attorney General first provided analysis of recent local comparator cases, namely AG v Dumitrache [2020] JRC 092 and AG v Mills [2021] JRC 289.  It was noted that the physical nature of the sexual touching in those cases was of a similar level to the facts in Freitas, but the latter resulted in a higher degree of harm, the victim having suffered “extreme psychological harm”.  Thus, the Crown submitted that a higher starting point (than the 4-year starting point in Mills) was justified.  Following Vieira, the Attorney General also made comparative analysis to the sentencing approach that would have applied in England and Wales under the SC Guidelines, which indicated a starting point of 4 years’ imprisonment, and a sentencing range of 2 to 6 years’ imprisonment.  The Attorney General settled on a starting point of 4 years and 3 months’ imprisonment and moved for a sentence of 4 years and 6 months.  The Court granted the Attorney General’s conclusions.  It had regard to the SC Guidelines only “for the purposes set out in the recent decision of the Superior Number in the case of AG v Vieira” (paragraph 12). 

63.     In AG v Alves [2022] JRC 241, after a guilty plea, the defendant was sentenced in respect of two counts of sexual touching without consent.  Again, in moving conclusions, the Attorney General provided an overview of relevant local comparator cases, namely AG v Ben-Fradj [2020] JRC 225, AG v Dumitrache [2020] JRC 092 and AG v Mills [2021] JRC 289.  Reference was also made to the likely categorisation of severity based on the SC Guidelines.  The Attorney General submitted that the SC Guidelines indicated a starting point of 2 years and 6 months’ imprisonment, and a sentencing range of 2 to 4 years’ imprisonment.  The Attorney General moved for a sentence of 2 years’ imprisonment, and the Court granted his conclusions.  As regards its use of the SC Guidelines, the Court commented (at paragraph 11):

“The Crown submits that the level of harm in this case falls within category 2, and the level of culpability within category A, of the English Sentencing Guidelines. These we find useful for the purposes of evaluating such factors, albeit we decline slavishly to follow the actual sentences prescribed by the guidelines. Taking all the circumstances of the offending into account, we accept the submissions of the Crown in regard to harm and culpability.”

64.     The Attorney General put before us further examples of the court’s approach following Vieira.  In AG v E [2023] JRC 044 the defendant was sentenced on three counts of rape following a trial.  In moving conclusions, the Attorney General referred to the local comparator cases of Vieira and AG v B [2020] JRC 110.  The Attorney General also referred to the approach under the SC Guidelines, concluding that the case would likely fall within category 2A, given the severe psychological harm and the presence of certain culpability factors.  The SC Guidelines indicated a starting point of 10 years’ imprisonment and a sentencing range of nine to thirteen years.  The Attorney moved for an 11-year sentence from a 10-year starting point.  The Court imposed a sentence of 9 years and 6 months’ imprisonment.

65.     As regards its use of the SC Guidelines, the Court commented (at paragraph 4):

“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.”

66.     In AG v Moody [2023] JRC 154, the defendant was sentenced in respect of offences of rape, indecent assault and sexual penetration without consent having pleaded guilty.  The Attorney General’s conclusions made reference to post-Vieira local case law, and also contained comparative analysis to the approach under the SC Guidelines.  The Attorney General’s assessment was that the rape and sexual penetration offences would fall within Category 2A of those SC Guidelines, which indicated a starting point of 10 years’ imprisonment and a sentencing range of nine to thirteen years.  The Attorney General settled on a starting point of 13 years’ imprisonment and a sentence of 9 years in respect of the most serious rape offence.  The Court fixed a starting point of 14 years’ imprisonment and imposed a sentence of 8 years and 6 months in respect of that count.  As regards its use of the SC Guidelines, the Court commented:

“In terms of the approach to sentencing such a case as this the Court has regard to the structure of the guidelines in England and Wales although of course it takes entirely its own view as we have as to the level of sentence to impose. That is not to say that the Court does not look to the English sentencing practices but it is of course not bound by them and we have not treated ourselves as so bound.” (paragraph 6)

“We agree with the Crown’s assessment that were we applying the sentencing guidelines in England and Wales (which we are not) this case would nonetheless fall within category 2 and culpability level A. We have noted the Crown’s sentencing ranges that it derives from those guidelines, although as we have said more than once we have not viewed those as binding upon us.” (paragraph 10).

67.     In AG v Dumitrache [2024] JRC 022 the defendant, having pleaded guilty, was sentenced in respect of two counts of rape and an assault.  As above, the Attorney General moved conclusions with reference to local case law following Vieira and also provided comparative analysis from an application of the SC Guidelines.  The Attorney General considered that the case would have fallen under Category 2B of those SC Guidelines, which indicated a starting point of 8 years’ imprisonment.  The Attorney moved for a sentence of 8 years’ imprisonment from a starting point of 10 years’ imprisonment. 

68.     The Court rehearsed the approach to sentencing established in Vieira, and the cases that followed (at paragraph 8).  The Court imposed a sentence of 6 years and 9 months’ imprisonment from a starting point of 9 years on the most serious counts.

69.     The important Court of Appeal decision in W v AG [2022] JCA 117 (“W”) has also informed both the Crown’s and the Court’s approach to sentencing.  That case concerned an appeal against sentence in respect of sexual offences against a child.  The appeal specifically concerned the sentencing court’s approach to the SC Guidelines, and the Court of Appeal said:

“34. It has been clear at least since the guidance given by this Court in K v Attorney General [2016] JCA 219 (“K”) that in a case such as the present the sentencing court may, should it think it appropriate, consider and take account of the various factors identified in the English Guidelines as relevant to sentencing approach: that is, as indicators of degree of harm, culpability and mitigation.

35. On the other hand it has been argued that a sentencing court in Jersey should not take any account of the sentencing levels set out in the English Guidelines, being guidance established for sentencing by the courts of England and Wales for offences there. As to this, the English Guidelines state a set of sentence starting points and ranges for sentence to be found by applying the indicators, once identified, to a table of sentencing values. The question on this appeal is whether a sentencing court may pay any further attention to anything in the English Guidelines, beyond the factors mentioned in the previous paragraph of this judgment, and in particular whether it would be a mistake as a matter of law for the sentencing court to use the sentencing levels indicated in the English Guidelines as a reference point.

…

47. Of immediate relevance to the present appeal, and contrary to the position contended for by the Appellant in the present case, we are satisfied that the Court in K did not lay down any principle that it is improper for a sentencing court to have regard to English sentencing levels as a point of reference. We derive support for this conclusion from a number of passages in the judgment.

(i)  In the passage from Wicks endorsed by the Court in K at [30], it is said that the sentencing court “may simply consider that the sentencing levels in England are too high or too low or should not be followed”. Implicit in those words is the proposition that a Jersey court may have regard to sentencing levels for equivalent offences in England, since without doing so it would be impossible for it to form a view as to whether those levels are too high or too low.

(ii)  The Court in K confirmed expressly at [32] that the Jurats “may wish to have regard to sentencing levels in England and Wales”, albeit that there is no presumption that these should be followed in Jersey and if the sentencing court chooses not to adopt such levels it is not required to explain why it has not done so.

(iii)  At [35] the Court noted that the sentencing court would have been wrong to have concluded it was obliged to follow the English Guidelines, but accepted with approval the sentencing court’s observation that “In our judgment, the sentencing levels envisaged by the guidelines for the conduct of the defendant in this case are also correct for this jurisdiction” (emphasis in original).

(iv)  At [36] the Court confirmed: “It is clear that the Royal Court recognised that it was not obligatory to follow the Guidelines but thought it was right to apply them in this particular case for this particular offending. That independent assessment by the Court was consistent with principle”.

(v)  At [39] the Court, having referred to the harm done to the victim by the offences in question, added: “This emphasises that the Royal Court was entitled to consider the approach taken in England and Wales, as set out by the Guidelines for the purposes of considering what would be the appropriate starting point in Jersey for these particular offences.”

48. We affirm once again that Jersey courts are under no obligation to have regard to the starting points or sentencing ranges set out in the English Guidelines. Not only are these not binding: there is no presumption that they should be followed or even consulted. There are however cases in which reference to English practice can provide useful guidance or reassurance.

49. In our judgment the current case presents just such an example. Sentencing in Jersey for the relevant offences is unrestricted by law; the most similar recent Jersey cases differed greatly in their facts (as was remarked in the sentencing judgment: [2021] JRC 329 at [10]); and no express guidance was available as to the practical implications of the encouragement that had been given in K and subsequent cases to increase the level of sentence for some types of indecent assault on a child. In such circumstances, we can well understand why the Jurats might have wished to seek guidance or to check their own views against the English Guidelines, in full knowledge of the fact that there was no obligation or expectation on them to follow or even to have regard to them.

50. We would add that even where the English Guidelines are not followed in relation to the absolute length of a sentence, there may be value in comparing the English sentencing levels for different categories of an offence, so as to inform, test or confirm the opinions of Jurats as to the relative seriousness of those different types. Once again, there is no obligation to conform to English practice: a point well understood by the Royal Court…Nonetheless, the exercise may be of assistance when seeking to assess the comparative seriousness of different categories of offence, or simply in the Royal Court’s phrase as a cross check. We find a degree of artificiality in drawing a rigid distinction between having regard to aggravating and mitigating factors on the one hand and sentencing levels on the other, and we decline to do so. We make no criticism of the Royal Court for considering the English Guidelines in the manner and for the purpose described in its sentencing judgment, which seems to us consistent with the law as declared in K.”

70.     The Attorney General asserts, and we agree, that whilst the case of W concerned sexual offences against a child, rather than an adult victim, the Court of Appeal was outlining the general approach to sentencing in this jurisdiction and there was no obvious reason why the principles set out by the Court of Appeal would not be equally applicable to sexual offences against adults.

71.     It is accordingly entirely permissible to refer as a cross-check to the SC Guidelines.  Whether or not we wish to follow them is entirely a matter for this Court as set out in Wicks above.

The Court of Appeal’s decision in Nunes

72.     The case of AG v Nunes [2024] JRC 080 (“Nunes”) concerned two counts of rape and one count of sexual touching of an adult victim who was unconscious.  The plea was one of guilty.  The sentencing court was referred to the SC Guidelines and followed Vieira which “confirmed that assistance can be drawn from the English Sentencing Guidelines but that the sentencing guidelines were not binding and the Court remains entirely free to take a more or less serious view of any particular kind of offending” ([2024] JRC 080, paragraph 7).  At the sentencing hearing, it was drawn to the Court’s attention (for comparative purposes, in accordance with Vieira) that the SC Guidelines indicated a starting point of 12 years’ imprisonment, and a sentencing range of 10 to 15 years’ imprisonment, for a single rape offence with the harm, culpability, aggravating and mitigating features present.  The Attorney General recommended a starting point of 14 years’ imprisonment to reflect the totality of the three sexual offences and moved for a total sentence of 9 years and 6 months’ imprisonment.  His conclusions were granted.

73.     On appeal, (Nunes v AG [2024] JCA 160) the sentence was reduced to 6 years and 8 months’ imprisonment (a reduction of 2 years and 10 months).  On review of the approach to sentencing, the Court of Appeal considered that the Royal Court had taken a “wrong turn” in Vieira by departing from the Millberry guidelines and disapproved of the use that had been made of the SC Guidelines in rape cases thereafter.  As explained above, the exercise of categorising cases under the SC Guidelines for comparative purposes was requested by the Superior Number of the Royal Court in Vieira.  The Court of Appeal in Nunes considered Vieira to have been wrongly decided in this respect.

74.     Paragraph 21 of the Court of Appeal’s decision in Nunes, reads as follows:

“In our view, these contentions raise again the use of the Guidelines, not least because not only the Crown but also the defence seem to have approached the case upon the basis that the Guidelines would be useful in establishing the appropriate starting point. When asked about this by the Court, Crown Advocate Hallam helpfully addressed us on how the Attorney General approached the formulation of the Crown’s conclusions in cases such as these. She explained that the Crown, having Vieira in mind would assess the culpability and harm factors and reach a view as to what the appropriate starting point should be. In doing so, regard would be had to which category of culpability and harm applied. There would then be a cross check against the Guidelines and if the preliminary view about the starting point was seen to be lower than the figure which would be reached on the application of the Guidelines, that view would be amended on the basis that there was no reason why the sentence should be any lower here than in England.”

75.     The Attorney General accepted that, had that in fact been the approach, it would be tantamount to a direct application of the SC Guidelines, which would be wrong in principle.  However, he stated that the summary in paragraph 21 of the Court of Appeal’s judgment mischaracterised the approach that had been taken.  In practice, in formulating sentencing conclusions the Attorney General has consistently referred to any local guidance and comparator cases before making reference to the SC guidelines.  It is only when local comparator cases indicate a sentence which is materially lower than that indicated by the SC Guidelines that an upward adjustment to the conclusions has been considered.  In those circumstances, the difference between local sentencing levels and the equivalent sentences in England and Wales has been highlighted to the Court to be taken into consideration when deciding what the appropriate sentence in the particular case should be.  It would, he said, be inaccurate to suggest that the Attorney General has moved conclusions based on a direct application of the SC Guidelines.

76.     The Attorney General advised us that the use of the SC Guidelines was not anticipated to be a matter in issue in the Nunes appeal.  It was not raised in the Appellant’s notice of appeal, or in the written contentions, or in oral submissions at the hearing.  Therefore, the Attorney General was not on notice that the Court of Appeal was minded to review the approach established in Vieira, or to consider whether it was wrongly decided.  In those circumstances, a full analysis of the development of sentencing practice in this area that has been provided to us was not provided to the Court of Appeal.  The Attorney General accordingly argues that the Court of Appeal’s review in Nunes was not fully informed.

77.     We are further informed that whilst paragraph 30 of the Court of Appeal’s judgment notes that a short adjournment was granted to allow the views of the Solicitor General to be sought, in fact, we were advised the Solicitor General was called upon without notice to provide a response within a matter of minutes, and without any opportunity to reflect on the issues or the relevant case law.  No opportunity was afforded to the Law Officers to provide a considered view on the queries raised by the Court which this case has now provided.

78.     The Court of Appeal’s decision in Nunes has proved somewhat controversial, not least because it does not appear to be entirely consistent with the approach in W; see for example the deprecation at paragraph 35 of the use of the SC Guidelines as a form of cross-check as compared with the approval of such an approach at paragraphs 48 and 50 in W quoted above.  In the light of this conflict we unreservedly say that we prefer the approach in W as set out above, which referred to the use of the SC Guidelines as a cross-check, as entirely appropriate.

79.     Be that as it may, although the Court of Appeal reduced the sentence in Nunes by applying the Millberry guidelines, it made clear at paragraphs 39 and 41 that it was open to this Court to review upwards the sentencing levels for rape and other sexual offences against adults if it thought fit.  Having convened a panel of nine Jurats for that purpose, the Court is firmly of the opinion that sentencing levels based on the Millberry guidelines are no longer appropriate and do not reflect the Court’s view of the gravity of the offence of rape.  This judgment is intended to clarify the Court’s current approach and to constitute the upward review envisaged by the Court of Appeal in Nunes.

The proposed approach of the Attorney General

80.     In his submissions to us the Attorney General makes the point, in our view quite rightly, that the jurisprudence as to the usefulness of the SC guidelines and indeed the Millberry guidelines have become difficult to reconcile.  There has been a departure from Millberry over a period of years and a number of cases, but that approach has been viewed as erroneous by the Court of Appeal in the case of Nunes.  It can be seen from the analysis set out above, however, that the Court of Appeal’s approach to the value of the SC Guidelines has not been entirely consistent and as a consequence there has been significant uncertainty as to what is now the correct approach.

81.     The Attorney General argues that, whatever the appropriate approach, the key principle is that the Royal Court is free to set its own sentencing levels and indeed its own sentencing policy no matter what the equivalent sentencing in other jurisdictions may be.  As we foreshadowed at the beginning of this judgment we entirely agree with that approach and moreover, in our view, that freedom should have as its feature the maximum reasonable flexibility to account for the different ways in which the offence of rape can manifest.

82.     The Attorney General puts before the court two options.  The Court can either, he argues, proceed on the basis of making continued reference to the SC Guidelines and following the Court of Appeal to make reference to Millberry guidelines in rape cases which involve adult victims and consider on a case-by-case basis what assistance, if any, may be drawn from these references.  The Millberry guidelines, so the Attorney General submits, are now more than 20 years old and no longer applied in England and Wales as they have been superseded by the SC Guidelines.  The alternative, so the Attorney General submits, is for this Court to formulate its own sentencing guidelines for rape which would remove any requirement to refer to either the SC Guidelines or to the Millberry guidelines other than by way of a cross-check, should the sentencing court wish to assess what a sentence may have been in a different jurisdiction.

83.     This court does not see that continuing to make reference to either the SC Guidelines or the Millberry guidelines is any longer of assistance to it in the sentencing exercise for rapes involving adults, save for reference to the SC Guidelines on the occasional basis set out above.  The tension of the various judgments of the Royal Court, between the Court of Appeal and the Royal Court and in some instances between two Courts of Appeal means that we propose to take a somewhat different course.

84.     At first consideration we can see that the Attorney General’s suggestion that we set our own guidelines is attractive.  However, in our view guidelines have the potential problem that they are sometimes inflexible and of somewhat rigid application. This may lead inappropriately to a particular conclusion without regard to some relevant circumstances or consequences of the offending.  We prefer to characterise what we propose as creating a framework for the approach to rape sentencing and not the imposition of guidelines to be rigidly applied.

85.     In this we have differed from the Attorney General who, whilst he has moved for the establishment of harm, culpability and aggravating features, he has also put before us a potential range of sentences.

86.     The Attorney General set out what he argued should be the initial points after a trial as follows:

(i)        For cases involving a single offence of rape by a single offender absent any of the harm and culpability factors identified by the Attorney General a period of 5-6 years’ imprisonment would be appropriate;

(ii)       In cases which feature at least one harm or culpability factor a period of 7-9 years’ imprisonment;

(iii)      For cases which are severe, due to the presence of a combination of harm and/or culpability factors or the extreme nature of any harm factor, 10-12 years’ imprisonment;

(iv)     For cases which are exceptionally bad, resulting in extreme harm to the victim and which involve high culpability, or cases involving a campaign of rape where the offender has repeatedly raped the same victim over a course of time, or cases involving multiple victims, the Attorney General suggests 15 years’ imprisonment.

The approach of this Court

87.     We also believe that ordinarily a sentence for rape would fall within a very broad range of 5 to 15 years imprisonment after a contested trial.  Naturally, there will be circumstances where, in unusual cases, the sentence will be lower or, in particularly and unusually serious cases, higher.

88.     We attach as schedules to this judgment non-exhaustive lists of factors as to harm, culpability and aggravating and mitigating features.  We say that such a list is non-exhaustive as we leave open the possibility, indeed the likelihood, that courts in the future will identify different factors as they emerge from each case before them and amend or add to those factors.

89.     We have concluded that it is appropriate for the sentencing court to approach cases of rape of an adult by first analysing the seriousness of the offending by considering the harm and culpability factors to arrive at an initial point for the sentence; the court then will consider the aggravating factors and mitigating factors which establish the provisional sentence.  Finally, in the words of the Court of Appeal in Millberry, the court will ‘stand back’ and consider whether the provisional sentence is right, having regard to all the circumstances including, of course, totality.

90.     We do not, however, adopt as guidelines the scales of sentences suggested by the learned Attorney General above as the Court wishes to maintain greater flexibility in sentencing any individual case.  We understand and acknowledge, however, that in moving conclusions, if the Attorney General wishes to approach the matter on the basis of the ranges that he has identified and as set out above, then that may very well be a useful start of our consideration.  We anticipate, however, that as case law develops, the Court will establish its own de facto range of sentences.  In other words, we are not dismissing the Attorney General’s proposed ranges as a means of beginning the sentencing process, but the Court will not feel bound to follow those ranges and will bring its judgment to bear on the appropriate sentence in any particular case.  We will feel free to have regard to the SC Guidelines as a cross-check as set out above.

The facts of the present case

91.     Victim 1 in this case was the Defendant’s now estranged wife and the Defendant was convicted of two assaults in respect of her (Counts 7 and 8 on the first indictment).

92.     Victim 2 is a woman who was in a relationship with the Defendant at the material time.  He has been convicted of 3 counts of grave and criminal assault (Counts 1, 5 and 6), one count of rape (Count 2) and two counts of sexual penetration without consent (Counts 3 and 4) against her.

93.     The Defendant had originally pleaded not guilty to all of the counts on the first indictment but on the first day of trial he entered guilty pleas to Counts 5 and 6, two grave and criminal assault charges in respect of Victim 2.  He was convicted of the remaining counts by the unanimous verdicts of the jury following a 9-day trial.

94.     The third indictment relates to voyeurism and involves a sole victim, Victim 3, with whom the Defendant was in a relationship.

95.     Victim 1 is some 39 years old and was married to the Defendant and they were living together when the assaults took place.  They separated in 2022.

96.     The Defendant had fixed upon the idea of opening a restaurant which they did in August 2020.  They married two months later.

97.     Victim 1 described that time as a difficult one because there was significant pressure in connection with the running of a new business.  The Defendant started drinking heavily and Victim 1 discovered that he was also having an affair with another woman all of which caused a significant strain on their marriage.  Victim 1 described seeing a different side of the Defendant when he drank alcohol, behaving as if he were possessed and becoming verbally and physically nasty towards her.

98.     With regard to Count 7, on 4 September 2021 the Defendant had reserved a corporate table for a dinner event at the Jersey Rugby Club.  He took Victim 1 and invited other business acquaintances including a woman who worked at the restaurant with whom the Defendant was having an affair.  The situation was understandably awkward, and Victim 1 was also concerned about spending funds from the business on a corporate table.

99.     The Defendant drank heavily during the evening and later in the evening he had an argument with Victim 1 who, as a result, left the event early without the Defendant.  In fact, she took a taxi home with the other woman with whom the Defendant was having an affair.

100.   When he returned home a few hours later he was still drunk.  He threw accusations at Victim 1, telling her she had behaved diabolically and there came a point when he lashed out at her whilst they were sitting on the sofa and put his hands around her throat.  Victim 1 threw water at him and went upstairs to the bedroom.  The Defendant followed her and after speaking together he again became angry and shouted at her.  Victim 1 left the bedroom and began to walk downstairs, and the Defendant followed her, pulled her back by the shoulder and said “Don’t walk off when we are still talking”.  He then pinned her against the wall and grabbed her by the throat with one hand.  The other woman who had been staying in the house heard the commotion and came to the bottom of the stairs and told the Defendant to let go, which he did.

101.   With regard to Count 8 on the indictment, some time between 28 February and 1 September 2022, the couple were living at an address in St Saviour.  Victim 1 recalls another circumstance in which the Defendant lost his temper and grabbed her around the neck.  They had been making efforts to rekindle their relationship and had arranged for them to have a date night and they stayed in and had dinner and wine.

102.   Whilst they were sitting on the sofa, the Defendant started to get angry about a social media post which he had seen regarding the new business.  Whilst Victim 1 tried to calm him down he did not listen.  She got off the sofa and said she was going to bed and the Defendant then launched himself at her, pinned her back onto the sofa, had his body weight on her and his hands around her throat.  He held them there for a few moments until she managed to use her legs to push him away.  She ran upstairs and locked herself in the bedroom because she was scared.  She did not feel safe and was crying and very upset.  The following morning the Defendant behaved as if nothing had happened.

103.   Victim 1 did not report the incidents to the police at the time.  She had invested all of her money into the relationship and the joint business, and she felt there was no way out.  She accordingly remained in a relationship with the Defendant despite her reservations although she subsequently moved out of the property to live with her parents because of those financial difficulties.  That, she said, was the beginning of the end of the relationship and she ultimately ended it when she discovered the Defendant was having affairs with other women.

104.   The Defendant was interviewed ultimately on 9 February 2023 and provided ‘no comment’ answers to all material questions concerning those offences.  It appears that whereas the assaults involved grabbing her round the neck they were not prolonged, and Victim 1 did not experience any loss of breath.

105.   With regard to Counts 1 to 6 inclusive, Victim 2 met the Defendant on a dating website whilst he was still in a relationship with Victim 1.  He promoted himself as a wealthy man with a privileged lifestyle and indeed he persuaded Victim 2 to work for him at the Windmill restaurant on the promise of payment.  He moved into Victim 2’s accommodation in September 2022.

106.   Count 1 relates to an assault early in the relationship shortly after he had moved into Victim 2’s flat.  They had gone into town for dinner and eaten at a restaurant and had drinks in the bar following their meal.  They went on to a nightclub because they were enjoying the evening.  In the nightclub things initially went well but the Defendant became drunk and by the time they left, at around midnight, he was being unpleasant to Victim 2, making nasty comments towards her and putting her down.

107.   Victim 2 had arranged for a lift to take them back to her flat and they sheltered from the rain in the recessed doorway of a local shop while waiting for that lift.  The Defendant continued verbally abusing Victim 2 and he grabbed her by the neck and pinned her against the door.  He spat at her and continued swearing and also scratched her neck.  In evidence, Victim 2 described him as squeezing her neck as hard as he could, and she blacked out a little.  He also punched her to the left-hand side of the head on more than two occasions whilst he was holding her neck.  Her eyelashes were torn off and an earring was broken and pulled from her ear.  We had the opportunity of viewing the CCTV footage of the street on which this occurred and although much of the assault was obscured, the Defendant can be seen moving backwards and moving swiftly again into the recessed doorway where Victim 2 was.

108.   The Defendant left Victim 2, and she got a lift home as arranged.  Ultimately, the Defendant walked back to her flat and pleaded with her to let him back him, which she did because she felt sorry for him, and he had nowhere else to go.

109.   Approximately a week later, the police visited Victim 2 and gave her a Clare’s Law disclosure warning her about the Defendant’s history of domestic abuse.

110.   As a result of that assault, Victim 2 suffered soreness to her head and bruises and scratches to her neck.  She did not report the matter to the police at the time because there was a lot going on and the Defendant told her he would not do it again.

111.   With regard to Counts 2, 3 and 4, in October 2022 Victim 2 and the Defendant went on holiday together to Turkey and stayed at a 5-star all-inclusive resort.

112.   On 15 October that year, he had been drinking all day and that evening they went on an organised excursion to a local nightclub.

113.   When the drinks bill came at the end, it was for more than they had expected.  The Defendant became angry about this, and Victim 2 described the look on his face as the same as when he assaulted her outside the nightclub in Jersey.  She became scared and told him she needed to use the toilet.  In fact, she felt things were getting out of control and left the nightclub in fear of the Defendant.  She did not go back inside the nightclub, nor did she get the bus back to the hotel.  She heard the Defendant and hotel staff looking for her and saw text messages from the Defendant asking her where she was, but she could tell he was becoming more and more angry and did not want to go back to him for fear of what he might do.

114.   She eventually spoke to a man outside a nightclub who helped her, the local police attended and put her in a taxi to take her back to the resort.  She was asked why she had not explained her fears to the police, but she explained that there was a language barrier and she thought that they would just assume that she was drunk herself.

115.   She pretended to be very drunk in her text messages to him, as if her drink had been spiked.  She hoped that this would make the Defendant more sympathetic towards her.  That did not prove to be the case.  When the taxi arrived at the hotel the Defendant was evidently very angry, and he walked her through the lobby and pushed her into the elevator.  He pinned her against the side of the elevator as they went up, accusing her of sleeping with another man and calling her a “dirty fucking bitch”.  Victim 2 was crying.  The Defendant then dragged her out of the elevator and into their hotel room.  Once there, the Defendant pushed her against the balcony door by her neck and squeezed her neck and strangled her.  He repeatedly called her a “fucking cunt” and accused her of sleeping with another man.  He hit her several times to her face with his fist.  He then threw her onto the bed and as she sat up, he pushed her into a cupboard, and she landed on the floor.  She curled up on the floor, but the Defendant stripped her of her clothing, ripping her underwear in the process, and then poured a bottle of water over her.

116.   Members of the hotel staff responded to a noise complaint and the Defendant opened the door to apologise to them.  Victim 2 was out of sight behind the bed, naked on the floor and crying.  Once the hotel staff had gone away, the Defendant turned once more to her, picked her up and put her on the bed.  Whilst she cannot recall the precise order of events, she specifically recalls the Defendant using his hands to penetrate her vagina and anus, she recalls him being on top of her and having vaginal intercourse with her and recalls him using sex toys on her, penetrating her vagina and anus at the same time.  She recalls him holding his phone and believed that he was video recording her.  She also recalls him standing over her while masturbating and ejaculating on her, calling her a “dirty cheap whore”.

117.   Victim 2 repeatedly told the Defendant to stop and leave her alone and in her evidence before the trial court she described the intercourse and other penetration as hurting a lot.  She did not consent to any sexual activity with the Defendant.

118.   The next morning, she woke up and went to sit in the shower.  She felt hideous, so she said, and had a bruise to the middle of her nose, on her eyes, on her chin, arms and legs.  Her neck was tender, her vagina and anus were sore.  When she spoke with the Defendant later that day, he sought to persuade her she had caused the bruises herself.  He told her she had fallen in the lift and in the bedroom which resulted in those injuries.  He had sent a number of messages to Victim 2’s friend in Jersey suggesting the victim had gone missing and was “off her face”.  This was, to our mind, a clear attempt to cover his tracks and in response to Victim 2’s friend texting Victim 2, Victim 2 sent her a photograph of the bruises to her face.  On her return to Jersey, she disclosed the assault to her friend.

119.   She permitted the Defendant to continue to live at her flat after their return from holiday, but she arranged to work additional nights in an effort to avoid being in the flat alone with him.

120.   With regard to Count 5, on 28 October 2022, the Defendant and Victim 2 had returned to her flat after an evening out together.  They had both been drinking alcohol.  They had some food in the kitchen.  The Defendant was drunk and kept falling asleep at the table.  Victim 2 decided to go upstairs to bed.

121.   She was worried that something bad might happen because the relationship had deteriorated significantly since the incident in Turkey.  She started recording on her mobile phone when she heard the Defendant coming up the stairs.  The recording which was played not only at the trial but at the hearing before us shows the Defendant losing his temper with Victim 2 because she was “supposed to be downstairs”.  He swore at her and said abusive things to her.  The sound of an object smashing can be heard.  Shortly following that, the Defendant assaulted Victim 2 by placing his hands around her neck and strangling her and causing her to vomit.  In another recording that she made of her interactions with the Defendant the incident in Turkey was a continuing theme.  She asked him over the recording why he hit her and his answer was “Because you keep being a dick”.  He also said that she had an attitude and “Maybe if you behaved yourself that wouldn’t happen”.

122.   With regard to Count 6, on Saturday 29 October, Victim 2 was asleep in bed when the Defendant came into the bedroom, turned on the lights, shouted at her and spat on her.  Throughout the evening and early hours of the next morning, the Defendant put his hands around her neck, grabbed her wrists and punched her in the face with her own hands.  He also punched her using his own fists and pinned her down.  The assault progressed around Victim 2’s flat and at one point she ran towards the front door and told him she was going to scream for help, but he pulled her back saying “I’m gonna fucking kill you” and strangled her again.  At another point, he pinned Victim 2’s hands back and pushed her to the sofa and put a pillow over her face.  She tried to kick him in the genitals, but he continued to throw her around, ultimately she managed to take his glasses and throw them across the room and whilst he was looking for them she ran out of the front door.  He locked himself inside the flat.

123.   At approximately 1.40 am, Victim 2 sent pictures of her bruises to her friend and told her about the assault.  As a result, the friend reported the incident to the police.  On 30 October, the police attended.  They spoke with Victim 2 who initially appeared reluctant to go into detail, but they decided to carry out a precautionary search and they discovered the Defendant in the upstairs bedroom.  He was arrested.  Following his arrest and removal, Victim 2 was much more forthcoming and felt she was able to tell the officers what had happened.

124.   Victim 2 was examined by the forensic medical examiner on 30 October and displayed symptoms consistent with concussion.  She had bruising to her head, neck, arms and torso which were consistent with an assault.  She also had injuries to both breasts and she also had a sore throat and a hoarse voice which the doctor concluded could be consistent with internal trauma following repeated non-fatal strangulation.

125.   In interview, the Defendant maintained a ‘no comment’ interview until the recordings referred to above were played to him.  He then stated that there had been an argument on 28 October and that Victim 2 had punched him in the face and grabbed his genitals so in self-defence he pushed her back with an open palm to the left eye.  He denied assaulting her or that he had threatened to kill her.

126.   The defence case at trial was that the allegations were untrue apart from those to which he pleaded guilty (Counts 5 and 6).  He accepted he had had arguments but denied being violent towards either of the victims.  He denied having any sexual interaction with Victim 2 on the night in question in Turkey and he claimed that he had put his anger issues behind him.  The jury rejected the Defendant’s case, and he was found guilty on all outstanding counts by unanimous verdicts.

127.   With regard to the third indictment, the voyeurism charges, the Defendant met Victim 3 through an online dating site in October 2019.  He represented that he was single and was an accountant who managed hedge funds and invested in businesses.  He said he had an office in Jersey and in the Shard in London.  They entered into an intimate relationship.  Victim 3 considered the Defendant to be her boyfriend.  She was a sales and marketing manager for a company in London throughout the relevant period, living in London, whilst the Defendant lived in Jersey.  He travelled to London on an almost weekly basis and Victim 3 stayed with him in hotels during his visits.  She also visited him once in Jersey.

128.   As part of an investigation into unrelated offences, a portable external hard drive belonging to the Defendant was seized.  On 13 March 2023, the investigating officers identified videos showing the Defendant with Victim 3 engaged in sexual activity.  It appeared that Victim 3 might not be aware of the recording.

129.   We have been shown a written summary of the contents of the three videos involved.  The first was recorded at the Shangri La Hotel in the Shard in London, the second at the L’Horizon Hotel and the third at the Shangri La Hotel in London.  They were lengthy videos and at varying times Victim 3, who was completely naked, can be seen performing oral sex on the Defendant or having the Defendant perform oral sex on her and performing vaginal sex.  It is not necessary to go into further detail than this.  Some of the conversation between the parties is captured and on one instance the Defendant says to Victim 3 that he “loved her to bits”.  There was talk of marriage.

130.   Victim 3 had no knowledge that she was being filmed engaging in sexual relations.  She knew that the Defendant had his laptop out in the hotel rooms, but it did not occur to her that he was using it to film them.  She had not been asked for her consent and had never discussed filming sexual activity.

131.   In early 2020, Victim 3 realised from the Defendant’s Facebook profile that he was in a relationship with Victim 1 and confronted him.  He tried to persuade her that he and Victim 1 were just friends.  The relationship ultimately fizzled out, however, and whilst he contacted her subsequently late in 2020, she had seen a photograph of his wedding to Victim 1.  Again, in interview the Defendant gave ‘no comment’ answers to all material questions although he claimed that Victim 3 was a sex worker who he had met online and had been seeing for a number of months.  He stated she consented to the videos being recorded and he had paid for those videos to be recorded.  He claimed that he had sent her a copy of the videos.

132.   Those are the facts upon which the Defendant fell to be sentenced.

Mitigation in the present case

133.   At the sentencing hearing, defence counsel made no submissions in connection with the assault and voyeurism charges.  It was submitted that it was wrong for this Court retrospectively to adopt a new approach and process for sentencing rape.  Jersey had an established process which the Court should follow, and it should not be “shifting the goalposts”.  It would be wrong in principle to apply a more severe sentence than would have been applied in earlier cases.  Any changes should be made slowly and should be flagged and occur in the future.  It is unfair, so it was argued, retrospectively to apply a more severe policy.

134.   The Defence made reference to Millberry (above) and to Kean (above).  It was accepted that the latter case was not really the same but by reference to it, it was submitted that the sentence should be 8 years and 6 months for the rape.

Approach of the Attorney General to the present case

135.   The Attorney General in moving conclusions in the present case has used the approach he identified, as described above.  Namely, the conclusions moved have been on the basis of the factors set out by the Attorney General and the initial points.

136.   With regard to the offence of rape and two counts of sexual penetration without consent carried out against Victim 2, the Attorney General has made reference to an expert victim impact report.  The consultant clinical psychologist who prepared that report, Dr Connor, expressed the view that Victim 2 had suffered “severe psychological harm” with symptoms of Post Traumatic Stress Disorder.  He says “The severity is based on the multi-factorial impact on [Victim 2] which may continue to present in physical health concerns…and difficulties with her social, emotional, and occupational functioning in the future”.

137.   As we have already indicated, the victim in this case presented her personal statement in open court.  It sets out in clear terms the very substantial adverse impact that this offending has had on her.  She states:

“I feel like I was the one who received a life sentence, I am in a prison of my own, nothing I do seems to be good enough to anyone…I feel ashamed about my decision and how naïve I was and blame myself most days.”

138.   Accordingly, the Attorney General identified the harm factors as including severe psychological harm and the use of violence.

139.   As to culpability, the Attorney General identified previous violence towards the victim (this is comprised in Count 1 on the indictment), other unlawful sexual activity in the course of one attack (Counts 3 and 4) and the fact that the offender appeared to have recorded the offence.

140.   The Attorney General assessed an appropriate initial point of 12 years imprisonment taking into account an uplift to reflect the commission of the two counts of sexual penetration without consent in respect of which the Crown moved for concurrent sentences as they were committed as part of a single attack.

141.   The Attorney General also identified other aggravating features including the fact that the rape and sexual penetration offences took place when the victim was in a hotel room in a foreign country, she was intoxicated, isolated and vulnerable.  The Defendant also was under the influence of alcohol which, as it is voluntary intoxication, is treated as an aggravating feature as the Court has said on many occasions.

142.   The Attorney General did not identify any mitigating features specific to the offence.

143.   With regard to the grave and criminal assaults, the Attorney General referred to the case of Harrison v AG [2004] JLR 111 and, although it is legitimate to do so, in the context of domestic violence the various factors set out in Harrison are far from being the whole picture.

144.   The Attorney General invited the Court to treat the first grave and criminal assault (Count 1) as an aggravating feature.  The latter grave and criminal assaults (Counts 5 and 6) were committed after the sexual offences and the Attorney General therefore moved for a consecutive sentence.

145.   With regard to the offences against Victim 1 (common assault, Counts 7 and 8) the Attorney General assessed them at the lower to medium end of the spectrum in terms of severity.  They took place when the Defendant was drunk and in the victim’s own home.

146.   Victim 1 has suffered psychological harm and Dr Connor, who conducted an examination of this victim as well, indicated that Victim 1 presented with symptoms consistent with Post-Traumatic Stress Disorder, clinically significant anxiety symptoms and a grief reaction in relation to marital and financial loss.  Again, Dr Connor opines that Victim 1 suffered severe psychological harm.

147.   The Attorney General also had regard to the victim personal statement which was read out in court.  We do not need to refer to it in detail other than to say that it is clear that Victim 1 has suffered significantly and continues to feel the consequences of the assaults on her.

148.   With regard to the third indictment, the statutory offence of voyeurism contrary to Article 36 of the Sexual Offences (Jersey) Law 2018 carries a maximum sentence of 2 years imprisonment.

149.   The behaviour filmed showed the victim completely naked and engaged in multiple sexual acts with the Defendant.  This is at the higher end of the range of the behaviour covered by the offence.

150.   The victim considered herself to be in a committed relationship with the Defendant.  He did not say that he was married, and this occurred in an environment where the victim should have felt safe and secure with the Defendant.  We agree with the Attorney General that there is an expectation of privacy and security in a hotel bedroom.

151.   The Attorney General indicated that there was a significant increase in the harm because these acts were not merely observed but recorded.  They were retained by the Defendant for more than 3 years and were merely discovered by chance.  It appears to have been made for his own sexual gratification because there was no indication that they had been shared in any way which would, of course, have been an additional serious aggravating factor.

152.   In terms of mitigation generally, the Defendant has the benefit of a guilty plea in respect of Counts 5 and 6 but they were entered late – on the morning of the first day of the trial.  Accordingly, they had little value because trial preparation had been concluded and they did not avoid the victim giving evidence.

153.   Victim 1 and Victim 2 were put through the ordeal of giving evidence and faced accusations that they were lying.

154.   With regard to the third indictment, the Defendant has the benefit of guilty pleas as well, although they were entered late.

155.   In the Pre-Sentencing Report, the Defendant indicated that he was appealing against his convictions, and it is to be noted that the Defendant has accepted no responsibility for his offending as a result.  Even with regard to the voyeurism charges to which the Defendant entered guilty pleas, he still maintained in interview that the victim knew about them and therefore maintained his innocence.

156.   It is clear from the report that the Defendant has a number of risk factors associated with him which include risks of sexual violence, victim blaming, offence denial and minimisation, risk taking and reckless behaviour, controlling behaviour and traits of narcissism and lack of consequential thinking.

157.   A number of assessments to identify the risk of re-offending were carried out and on the three systems used, the Defendant was assessed as either having a high risk of re-offending or very high risk.

158.   In terms of the risk of harm, the Defendant was assessed as posing a high risk of serious harm including sexual violence to named known adults and to future intimate partners.  The report concludes:

“There can be no doubt of the serious harm Mr Roberts has caused to the victims of his offences and despite his assertions of reflection and apology, it is my opinion that these are superficial at best. My reasoning in respect of the superficiality of his apologies arise from Mr Roberts’ clear denial of some of the offences, and his willingness to bring his victims to Court to have them experience a trial and to give evidence. Whilst he may assert that he is indeed not guilty of the offences, providing him with what he believes to be a sound reason to bring his victims to his trial, I would opine that the act of having his victims give evidence at Court, is another form of Mr Roberts’ attempt to maintain control.

Mr Roberts’ behaviour during the course of his intimate relationships and specifically in relation [Victim 2, Victim 1] and ‘S’ appear to have followed a familiar pattern of sexually deviant behaviours, coupled with a propensity for violence, with strangulation as the prime method of subduing and controlling his victims. Mr Roberts’ childhood likely had a hand in defining the person he has become. However, without a full and frank disclosure from Mr Roberts regarding other aspects of his childhood, it is likely that any causative factors which may have helped to shape his violent and sexually violent behaviours will remain unknown. When in the community, Mr Roberts presents a high risk of serious harm to women and in particular females with whom he is involved intimately. His willingness to use violence in order to meet his own needs within a domestic context is of grave concern and is deeply entrenched, evidenced by his longstanding history of domestic abuse.”

159.   The Crown was, of course, alive to the necessity of considering totality and in the light of that consideration and in the further understanding that had the voyeurism offences stood alone the Crown would have moved for concurrent sentences of 18 months imprisonment after trial, the Crown in fact moved as follows:

First indictment

Count 1: grave and criminal assault – 18 months imprisonment;

Count 2: rape – 12 years imprisonment;

Count 3: sexual penetration without consent – 7 years imprisonment;

Count 4: sexual penetration without consent – 7 years imprisonment;

all concurrent.

Count 5: grave and criminal assault – 2 years imprisonment consecutive to Count 2;

Count 6: grave and criminal assault – 2 years imprisonment concurrent to Count 5 but consecutive to Count 2;

Count 7: assault – 9 months imprisonment consecutive to Count 2 but concurrent with Count 5;

Count 8: assault – 18 months imprisonment consecutive to Count 2 but concurrent with Count 5.

Third indictment

Counts 1, 4 and 6 each to receive a sentence of 12 months imprisonment concurrent with each other but consecutive with the counts on the first indictment making a total of 15 years imprisonment.

Analysis of the Court

160.   In approaching sentencing in this case we considered first the correct sentence for rape.  Although there was a single count of rape, the Court considered that the rape was of its nature a very serious example.  It was accompanied by violence, and humiliation in that Victim 2 was stripped and had water poured upon her.  She was, during the entire process, abused verbally and strangled.  She was further humiliated by the thought that the Defendant was filming her and the fact that he ejaculated on her.  She sustained material injuries and the assault upon her was drink-fuelled.  Furthermore, because of her own levels of intoxication, of which the Defendant was fully aware, she was particularly vulnerable and unable to defend herself.  We accepted the Attorney General’s analysis of the nature of the offences and the aggravating features but, as explained below, we have added further harm and culpability factors that the Attorney General did not specifically highlight.

161.   In short, we consider this to be a very serious example of a single rape against a vulnerable person and took the view that it should be met with a substantial sentence of imprisonment.  Furthermore, because we accept that the sexual penetration without consent should be treated concurrently to the rape because they form part of the same process, we concluded that the sentence for rape should be increased from a level that would otherwise have applied.  We have very much in mind the consequences suffered by Victim 2 as a result of the Defendant’s behaviour and we note that the violence, as we have already said, is a serious aggravating feature although it could not be charged separately for jurisdictional reasons.  That does not mean it is not a feature that we felt we should - and did - take into account.

162.   Our approach to the remainder of the sentencing was that it was appropriate to reflect that some of the assaults were perpetrated upon a separate victim and we took the view that those should run consecutively to those relating to Victim 2.

163.   Referring to the factors set out in the schedules, first, under the heading of harm, it is clear that the victim of the rape has suffered severe psychological harm and severe emotional harm.  There was, as we have already indicated, humiliation/degradation going beyond the mere fact of the rape itself and there was significant violence (over and above the grave and criminal assault), and the rape was prolonged with multiple acts of penetration.

164.   Turning to culpability, the following factors appear to us to be present: previous violence against the victim (Count 1); there was other unlawful sexual activity during the course of a single attack (Counts 3 and 4); there was the suggestion that the offence had been recorded with the humiliation attendant upon that.

165.   The Attorney General noted in his conclusions that this is a severe case which warranted an initial point of 12 years' imprisonment.  For the avoidance of doubt, the 12-year initial point took account of Counts 1, 3 and 4, in respect of which the Crown moved for concurrent sentences.  We agreed with this proposition.

166.   With regard to aggravating features, we considered that the location of the offence, namely the accommodation that the Defendant and victim shared, and the fact that ejaculation occurred, amounted to substantial aggravation.  Moreover, the offences occurred when the Defendant knew that the victim was vulnerable through intoxication.  We concluded that these aggravating features warranted an increase to the initial point.

167.   There was in effect no mitigation as there was no expression of remorse or acceptance of responsibility, there were no guilty pleas to any of the counts other than Counts 5 and 6 on the First Indictment, and the Defendant does not have a good record.

168.   It might be somewhat artificial to take a simple calculation from a supposed initial point and then increase the sentence to take into account the many aggravating factors that we have identified.  In our judgment, in this case, given the manner in which we have decided to sentence the first four counts in the First Indictment together and to sentence the other counts consecutively, the correct approach is to look at the offending overall and assess what to us appears to be the appropriate sentence taking all the harm, culpability and aggravating features into account and accepting that there is a lack of any mitigation.

169.   In our judgment the Attorney General was correct to argue that the offences against Victims 1 and 3 (Counts 7 and 8 on the First Indictment and Counts 1, 4 and 6 on the Third Indictment) should be sentenced separately, and therefore consecutively, as should the separate assaults on Victim 2 (Counts 5 and 6 on the First Indictment), with these sentences to be served consecutively to Count 2.  We had to have regard for the totality principle and so we reduced the sentence imposed for Count 2 on the First Indictment.

170.   Taking all of those factors into account, we concluded that this rape (Count 2), when combined with the grave and criminal assault (Count 1) and the two counts of sexual penetration without consent (Counts 3 and 4), would ordinarily be marked by a sentence greater than that proposed by the Attorney General.  However, having in mind the totality principle, we assessed the appropriate sentence with regard to the rape (Count 2) combined with the grave and criminal assault (Count 1) and the two counts of sexual penetration without consent (Counts 3 and 4) as one of 11 years imprisonment.

171.   We determined that it is right that the sentences for the assaults in Counts 7 and 8 of the indictment, respectively 9 months and 12 months imprisonment, should run consecutive to Count 2 but concurrently with each other.

172.   With regard to the voyeurism charges of the nature that occurred in this case (Counts 1, 4 and 6 on the Third Indictment), we agreed with the Crown that the sentence should be 12 months for each, concurrent with each other but consecutive to the other total sentences on the First Indictment.

173.   For those reasons we imposed the sentences of imprisonment referred to in paragraph 2 above.

174.   We also imposed a Domestic Abuse Protection Order and imposed notification requirements pursuant to the Domestic Abuse (Jersey) Law 2022 in the terms sought by the Crown for an indefinite period.

175.   Finally, we set the period before which the Defendant may apply to be discharged from the requirements of the Sex Offenders (Jersey) Law 2010 as 18 years and we made an order depriving the Defendant of his rights in relation to the portable hard drive used to store the videos covered by the voyeurism offences, this pursuant to Article 2 of the Criminal Justice (Forfeiture Orders) (Jersey) Law 2001.

SCHEDULE 1 – HARM SUFFERED BY THE VICTIM

(i)        Significant physical harm;

(ii)       Severe psychological harm, which may be aggravated in cases where the victim was already suffering some form of psychological difficulties, whether or not the defendant was aware of those difficulties;

(iii)      Significant emotional harm, exacerbated by (but not limited to) prior emotional difficulties;

(iv)     Pregnancy resulting from the offence;

(v)      Sexually transmitted disease or infection contracted as a consequence of the offence;

(vi)     Humiliation and / or degradation, beyond the rape itself;

(vii)     Violence, or threats of violence, beyond that inherent in the rape itself;

(viii)    A prolonged rape, or multiple rapes / acts of penetration;

(ix)      Abduction;

(x)      Prolonged detention;

(xi)      The rape occurring in the victim’s home;

(xii)     The defendant forcing entry into the victim’s home in order to carry out the rape.

This is not an exhaustive list of all possible harm factors that the sentencing court might reasonably take into account. There may be some overlap of factors under different headings.  The court will be alive to the risk of double-counting. 

SCHEDULE 2 – THE OFFENDER’S CULPABILITY

(i)        Significant degree of planning

(ii)       Offender acts together with others to commit the offence

(iii)      Use of alcohol/drugs on victim to facilitate the offence

(iv)     Specific targeting of a particularly vulnerable individual

(v)      Abuse of trust

(vi)     Previous violence or sexual violence against victim

(vii)     Other unlawful sexual activity during the course of one attack;

(viii)    Recording of the offence

(ix)      Distributing a video recording of the offence via any media

(x)      Commercial exploitation and/or motivation

(xi)      Offence racially or religiously aggravated

(xii)     Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or gender identity (or presumed transgender identity)

(xiii)    Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability)

This is not an exhaustive list of all possible culpability factors that the sentencing court might reasonably take into account.  The sentencing court might identify and take into account other factors that it considers to have increased the offender’s culpability. 

SCHEDULE 3 – AGGRAVATING FACTORS

(i)        Repeat offending: the offender has committed a similar offence or similar offences in the past

(ii)       The offence occurred while the offender was committing another crime

(iii)      The offender shows no remorse for the impact upon the victim and / or takes no responsibility for the rape

(iv)     Ejaculation

(v)      Offence committed whilst on bail or in breach of a court order

(vi)     Blackmail or other threats

(vii)     The location of the offence (other than the victim’s home)

(viii)    The use of any form of weapon to frighten the victim

(ix)      The timing of the offence

(x)      Commission of the offence whilst under the influence of alcohol and / or drugs

(xi)      Any steps or attempts taken to prevent the victim either (i) reporting the rape(s) or (ii) obtaining assistance, or (iii) assisting or supporting the prosecution

(xii)     Steps taken by the offender to dispose of or conceal evidence

(xiii)    The presence of others when the offence was committed, especially children

This is not an exhaustive list of all possible aggravating factors that the sentencing court might reasonably take into account.  The sentencing court might identify and take into account other factors that it considers have aggravated the offence. 

SCHEDULE 4 – MITIGATING FACTORS

The following is a non-exhaustive list of factors that might be taken into consideration by the Court as mitigating the sentence:

(i)        An early guilty plea

(ii)       Remorse and admission of responsibility

(iii)      Mental disorder or learning disability, particularly if linked to the commission of the offence

(iv)     Age and / or lack of maturity

(v)      A difficult and / or deprived background or personal circumstances,

This is not an exhaustive list of all possible mitigating factors that the sentencing court might reasonably take into account.  The sentencing court might identify and take into account other mitigating factors. 

Authorities

Sexual Offences (Jersey) Law 2018.

Domestic Abuse (Jersey) Law 2022. 

Wicks v Law Officers of the Crown [2011-12] GLR 482. 

Millberry -v- R [2002] EWCA Crim 2891. 

AG v Vieira [2021] JRC 293. 

K-v-AG and AG-v-F [2016] JCA 219. 

AG v K [2016] JRC 158. 

AG v T [2017] JRC 169. 

AG v S [2017] JRC 194A. 

AG v W [2018] JRC 061. 

AG v W [2021] JRC 329. 

Nunes -v- AG [2024] JCA 160. 

AG v De Oliveira [2017] JRC 011. 

AG v C [2019] JRC 074. 

AG v Jordan [2019] JRC 081. 

AG v Dobrin et al [2019] JRC 097. 

AG v Kean [2019] JRC 155. 

AG v B [2020] JRC 110. 

AG v Fernandes [2021] JRC 049. 

AG v Freitas [2022] JRC 080. 

AG v Dumitrache [2020] JRC 092.

AG v Mills [2021] JRC 289. 

AG v Alves [2022] JRC 241. 

AG v Ben-Fradj [2020] JRC 225. 

AG v E [2023] JRC 044. 

AG v Moody [2023] JRC 154. 

AG v Dumitrache [2024] JRC 022. 

W v AG [2022] JCA 117. 

AG v Nunes [2024] JRC 080. 

Nunes v AG [2024] JCA 160. 

Harrison v AG [2004] JLR 111. 

Criminal Justice (Forfeiture Orders) (Jersey) Law 2001