Jersey Unreported Judgments

[2010]JRC016

ROYAL COURT

(Samedi Division)

25^th January 2010

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats de Veulle, Le Brocq, Tibbo, Le Cornu, Morgan and Liddiard.

The Attorney General

-v-

Z

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 27^th November, 2009, following guilty pleas to the following charges:

1 count of:	Robbery (Count 1).
1 count of:	Indecent assault (Count 2).
1 count of:	Rape (Count 3).

Age:  15.

Plea: Guilty.

Details of Offence:

On 13^th August, 2009, the defendant left his family home after an argument with his mother concerning the amount of time he was spending on his computer.  He encountered the victim, a 19 year old foreign student, on Westmount at about 11pm.  The victim, who was walking home after work, realised she was being followed but put her fears down to paranoia.  She then heard a metallic object being dropped and turned to see the defendant wearing a homemade mask.  He picked up the knife he had dropped and threatened her with it.  He held the knife against her throat and forced her into a nearby field.  She was initially so shocked that she lapsed into her mother's tongue and the defendant ordered her to speak English.  She asked if he intended to kill her and was told that if she did as he said she would not get knifed. 

The defendant ordered the victim, a virgin, to remove her upper clothing.  She did so as she was afraid for her life.  The defendant became more aggressive if she slowed down and would make sure she could feel the knife.  The defendant then demanded her money and phone and she gave him about £11 and her mobile phone (Count 1). 

The defendant then forced the victim further into the field and ordered her to remove the rest of her clothing.  When she was completely naked he stood behind her, with the knife in one hand, and touched her shoulders, arms and breasts (Count 2).  The victim felt ashamed and helpless and could feel the defendant's erect penis against her.  The defendant then ordered the victim to masturbate.  She misinterpreted this as an order to perform oral sex on him.  He became aggressive and ordered her to put his penis in her mouth.  When she did not do so he took hold of her face and did it himself, before grabbing her hair and moving her head back and forth aggressively. 

The defendant then pushed the victim backwards to the ground.  He became angry and she became more scared.  He remained fully clothed and, holding the knife in one hand, lay on top of her.  He insisted she look away and then digitally penetrated her.  He then raped her (Count 3).  The defendant became angry and impatient and asked "What's up, it's not working".  After about a minute he withdrew.  He was not wearing a condom.  He digitally penetrated her again, but then stopped as he wasn't getting satisfaction.  According to the victim, the entire incident lasted about 20 minutes and throughout he made comments such as "Be a good girl, don't cry.  Don't make a noise, don't tell anybody". 

After he had stopped the defendant ordered the victim to stand up, and when she did not do so immediately he pulled her to her feet by her breasts.  He handed the victim some of her clothes and ordered her to wait and look away whilst he left.  She heard him pressing buttons on her phone and asked for it back.  He said he would leave it on the wall at the field entrance.  He asked if she had anything else, like jewellery, in her bag and she said "no".  He warned her not to tell the police and left.  The victim, who was in shock, waited until the defendant was out of sight and then got dressed and left.  She did not call anyone as she was concerned the defendant may have been watching.  The defendant remained in the area for a short while, listening to music on his phone then returned home. 

When the victim got home she immediately had a shower.  When her housemate got home she told her what had happened.  The housemate was initially incredulous, but then insisted that they go to the police station, which they did.  The rape was reported at approximately 2am the following day. 

In the early hours of the following day police officers on routine patrol noticed the defendant in the area of the attack.  They stopped him and he was unable to give an explanation as to why he was in the area at night.  He told that officers he had been there the previous night as well.  The officers searched him and he volunteered that he had a kitchen knife in his pocket.  He was arrested for carrying an offensive weapon and told officers that he needed it when out at night.  The officer continued to search the defendant and found the homemade balaclava and the victim's bra, which she had since reported missing.  He was arrested on suspicion of rape.  He remained calm throughout and one of the officers described him as "unperturbed" by their presence. 

The defendant was interviewed in the presence of an appropriate adult.  He said that he had left his home with the balaclava and knife with the intention of mugging someone.  He waited at the top of the Westmount steps, but only encountered a large man, who he decided not to attack.  He got bored and was returning home when he encountered the victim.  He put on his balaclava, armed himself with the knife, and approached her with the intention of mugging her.  When he got within about ten metres of her, he decided to rape her as well. 

In interview the defendant made a full and frank confession, though he initially minimised the gravity of his actions by failing to mention the threats and manhandling.  He later admitted to holding the knife against the victim's throat and to using her fear to his advantage.  He also admitted to making threats.  He said that he had returned to Westmount the following night to dispose of the bra.  He acknowledged that he had done something unlawful, saying "it's probably ruined part of my life and it's definitely ruined the victim's life.  Neither of us have got any kind of benefit from it so it's overall a very bad sort of experience".

The defendant has been assessed as needing a medium level of supervision to manage the risk he poses to women.  Background reports suggested he was not fully remorseful and was more concerned with the effect on his own life than on the effect of the victim's. 

There was a victim impact statement prepared by a psychologist.  The victim appears to have been very resilient but the attack had left her blaming herself and lacking in confidence. 

Details of Mitigation:

The defendant has the benefit of extreme youth and previous good character.  He was co-operative with the police and pleaded guilty, sparing the victim the distress of a trial. 

The defendant had a number of positive references.  The reports do not identify any particular reasons in his background for his actions.  He is not suffering from any mental health condition. 

The Defence argued that the starting point taken by the Crown was wrong and that the case fell within the five year starting point band as the victim had not been abducted within the meaning of the sentencing guidelines.  It was agreed that two years uplift on the starting point was appropriate given the aggravating factors (the use of a weapon and threats, and the additional indignities).  The Defence therefore proposed a final starting point of seven years and a sentence of three years' youth detention.

The defence disputed that the defendant was not full remorseful, stating that, at 15, the defendant did not know how to express his remorse. 

The offences were out of character, and the defendant had a number of references from family, a minister and the leader of the Boy's Brigade.  He had achieved five GCSE's whilst on remand and hoped to complete more next year. 

Previous Convictions:

None.

Conclusions:

The defendant falls within the provisions of Article 4 and 5 of the Criminal Justice (Young Offenders)(Jersey) Law 1994.

In respect of Article 4 the Crown contended that the totality of the offending was so serious that a non-custodial sentence could not be justified, and further that only a custodial sentence would be adequate to protect the public from serious harm. 

Regarding Article 5 the Crown contended that the offence was so serious that the usual limit of 12 months' detention in respect of offenders under the age of 17 years old should not apply, and that in accordance with Article 5(4) the defendant should be sentenced to a longer period of detention at a place to be specified by the Secretary of State. 

The Crown had regard to the sentencing guideline in Milberry and argued that a starting point of 8 years should be taken as the case involved the abduction of the victim.  It argued that the aggravating factors (use of a knife, threats, the wearing of a balaclava and the additional indignities to which the victim was subjected, including forced oral sex and lifting the victim from the ground by her breasts) warranted an additional 2 years on the starting point, making a total of 10 years.

Count 1:	12 months' youth detention.
Count 2:	2 years' youth detention, concurrent.
Count 3:	4 years' youth detention, concurrent.

Total:  4 years' youth detention.

Forfeiture and destruction of the knife.

The Crown confirmed that had these offences been committed by an older youth in similar circumstances the conclusions would have been 50% longer on each count. 

Sentence and Observations of Court:

Rape is always a serious crime that involves the degradation of a woman and in these circumstances was frightening and humiliating.  The Court had regard to the victim impact statement and stated that it was not to the defendant's credit that the victim had responded with such bravery.  It also noted that the victim had had to endure a long period of waiting for confirmation that she had not contracted any disease as a result of the attack. 

There was no doubt that the grounds in Article 4(2)(c) of the Criminal Justice (Young Offenders)(Jersey) Law 1994 was met and therefore the Court did not go on to consider whether the grounds in Article 4(2)(b) were met.  In addition the grounds in Article 5(4) were met. 

The Court agreed with the Crown that there had been an abduction and that the correct total starting point was 10 years.

Starting point 8 years aggravated to 10 years.

Conclusions granted.

Forfeiture and destruction of the knife ordered.

The Court further ordered that the accused be accommodated at Greenfield's pending the decision of the Secretary of State as to where the sentence will be served.

C. M. M. Yates, Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Z, you fall to be sentenced for an Indictment containing three counts; the first one is robbery, the second one is indecent assault and the third is the count of rape.  Rape is always a very serious offence and the Court has no option but to impose a custodial sentence in relation to this offence.  It involves the degradation of a woman in circumstances, in this case, which were extremely frightening and humiliating.

2.        The facts were that, late at night, you followed a woman in a quiet area; you took out a knife, threatened her with it and took her from her chosen course from the road into a field.  You threatened her on several occasions; you made sure that she could feel the knife and in the course of the assault you required her to commit an act of oral sex upon you and there were some further indecent assaults with digital penetration.  You then raped her. 

3.        The Court has had regard to the victim impact statement which has been part of the Court's bundle and which was taken from her.  It is clear from that victim impact statement that the experience that you committed her to that evening will live with her forever.  It is not to your credit that she has responded with the bravery that she has.  There was, in addition for her, a long period of uncertainty as to whether she would suffer from any disease as a result of the assault which you committed upon her. 

4.        For the purposes of the Criminal Justice (Young Offenders)(Jersey) Law 1994 the Court has no doubt that Article 4(2)(c) is met in this case, the offence is so serious that a non-custodial sentence cannot be justified.  The Court has considered whether Article 4(2)(b) is met as well, whether it is necessary to protect the public from serious harm from the person, but does not proceed on that basis today. 

5.        We have given careful consideration to what the starting point should be for the purposes of this sentence.  As has been clear from other cases before this Court, particularly quite recently the case of AG-v-Benyoucef [2008] JRC 142, the case of R-v-Milberry (2003) 1 Cr App R 25 and the previous case of R-v-Billam (1986) 8 Cr. App. R. (S) 48 have been applied in this Court to the question of sentence for offences of rape.  This Court considers that the starting point of 8 years is the correct starting point in this case.  We think that there was, at least technically, an abduction, in the sense that the victim in the strict sense was led away from her chosen path at knifepoint.  It may not be quite the same as an abduction from a victim's bedroom but it was still an abduction.  Even if the Court had not been prepared to look at 8 years as the appropriate starting point, we think that the aggravating factors would still mean that one was looking at a total of 10 years before applying mitigation; those aggravating factors are the nature of the indecent assault, the digital penetration and the lifting, by her breasts, of the victim off the ground, which are all serious aggravating factors, also the use of the knife and the threats which were made against the victim and also the use of the balaclava, because it must have been an extraordinarily frightening event for her.  If one approached it from the other angle and one were looking at sentence after a contested trial and without other mitigation, we think 10 years would have been an appropriate place to finish.  And so for all those reasons, but applying the 8 year starting point, we therefore look at 8 years plus the additional 2 years which the Crown has identified as reflecting the aggravating features in this case. 

6.        We now turn to the mitigation and we have spent a good deal of time reading carefully all the reports which have been made available to us and the references which have been passed down.  We take into account your good character; we take into account very much your guilty plea and the admissions which you made right at the outset when you were first interviewed by the police, and we take into account the remorse which your counsel has mentioned to us.  We also of course, take into account your youth.  You are entitled to credit for all those things and in the circumstances we think that applying the Court's experience in the round, the right sentence is to adopt the conclusions for which the Crown has moved.  

7.        In accordance with our powers under Article 5(4) of the Criminal Justice (Young Offenders)(Jersey) Law 1994, we sentence you to be detained for 4 years for Count 3, 2 years on Count 2 and 12 months on Count 1, all of which should be served concurrently. 

8.        We also order the forfeiture and destruction of the knife.

9.        Everyone in this Court has been concerned about this case; that is why the Court was out for such a long time.  We have looked very anxiously at all the material that has been given to us.  You should be encouraged by the love and the support of your family who have been in Court to help you.  During your detention or afterwards, you will have the opportunity of trying to understand how you came to commit these offences.  You will need to rebuild your life and you should, in the Court's view, build as far as you can on your family's love and support for you.

10.      Mr Yates, we are going to make the order that pending the determination by the Secretary of State pursuant to Article 5(4) of the Young Offenders legislation that the accused should be detained at Greenfields.  It is an Order and not a request.  The Court has recognised that on the last occasion that the Court made a similar request of this kind, the offender was in fact sent out to the young offenders institute almost straight away but it is completely unsatisfactory if the Court could not order it but we think we can.  It is clear that when an offender is sentenced under article 4(1) of the Young Offenders legislation, the sentence is expressed as "detention in a young offender institution".  This is later described in Article 4 as "youth detention".  By contrast, Article 5 of the Young Offenders legislation does not describe the Court's power in Article 5(1) in the same way, nor indeed do paragraphs (2) and (4) of that Article.  The nature of the sentence is different - although it is a sentence of detention.  The place of detention is not expressed to be a young offender institution, but rather the detention is "as the Secretary of State may direct".  Given that that is so, there appears to us to be no clear requirement in the legislation that pending the direction of the Secretary of State, the offender must be held in a young offender institution.  In the circumstances, the Court considers it must have been a residual discretion as to where the offender should be held in that intervening period and we have no doubt at all in this case that that should be at Greenfields. 

11.      Obviously that Order stays in place only for as long as the Secretary of State has not made an Order under Article 5(4).  We consider that it is very important that Z stays at Greenfields where he is not going to mix with other young men and older young men with much worse records.  If we are wrong about our construction of that statute and it is a question of designation that is going to cause a difficulty then the Minister can no doubt give thought to a fairly early designation as necessary of the Young Offenders Institute at Greenfields, it does appear to us that it has caused no difficulty whatsoever for the last few months while he has been present in custody and there is absolutely no reason why he should not stay there until other arrangements have been made by the Secretary of State under Article 5(4). 

12.      And so we make that Order.  Of course it is open to the Minister to take further steps if he wishes to do so but I hope, after careful consideration, he will not think that is appropriate and the Order is accordingly made in that way today. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Benyoucef [2008] JRC 142.

R-v-Milberry (2003) 1 Cr App R 25.

R-v-Billam (1986) 8 Cr. App. R. (S) 48.

R-v-Patrick M (2005) 1 Cr. App. R. (S) 49.

AG-v-Dawrant and Others [2007] JRC 162.