Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault - motoring.

[2012]JRC139

Royal Court

(Samedi)

20 July 2012

Before     :

Sir Michael Cameron St. John Birt, Kt., Bailiff., and Jurats Morgan and Liston.

The Attorney General

-v-

Jason Yves Benest

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charges:

First Indictment

1 count of:

Indecent assault (Count 1).

Second Indictment

2 counts of:	Using a motor vehicle uninsured against third party risks, contrary to Article 2(1) of the Motor Traffic (Third Party Insurance)(Jersey) Law 1948 (Counts 1 and 8).
1 count of:	Driving without a licence, contrary to Article 4(1) of the Road Traffic (Jersey) Law 1956 (Count 2).
1 count of:	Using a motor vehicle on a road when the braking system is not maintained in good and efficient working order, contrary to Article 18(1) of the Motor Vehicle (Construction and Use) Order 1998 (Count 3).
1 count of:	Using a motor vehicle on a road when the condition of the bodywork was dangerous, contrary to Article 106(1) of the Motor Vehicle (Construction and Use) Order 1998 (Count 4).
1 count of:	Failing to notify change of address, contrary to Article 11(2) of the Motor Vehicle Registration (Jersey) Law 1993 (Count 5).
1 count of:	Parking on an unloading bay, contrary to Article 6(4) of the Road Traffic (Saint Helier)(Jersey) Law 1996 (Count 6).
1 count of:	Failing to comply with a condition subject to which a provisional licence is granted, contrary to Article 11(2) of the Road Traffic (Jersey) Law 1956 (Count 7).
1 count of:	Taking a motor vehicle without the owner's consent or other lawful authority, contrary to Article 53(1) of the Road Traffic (Jersey) Law 1956 (Count 9).,

Age:  22.

Plea: Guilty.

Details of Offence:

This was a case of penetrative assault, namely penetration of both the vagina and the anus. The offender gave a lift to a drunken girl making her way home alone in the early hours of the morning.  He drove her to the vicinity of her home but pulled her back as she made to leave the car and penetrated her vagina with his finger(s).  She had a tampon in place so that the assault caused her particular pain.  She broke free but the offender pulled her back once more and penetrated her anus, again using a finger or fingers.  She fell or was pushed from the car and the offender drove off. 

Details of Mitigation:

Guilty plea but late so no full credit; youth, 22 at sentencing 21 at time of offending); comparative good character; good references; hardship to family if imprisoned. 

Previous Convictions:

Minor motoring; antecedents included Parish Hall re drunk and disorderly. 

Conclusions:

First Indictment

Count 1:

3 years and 6 months' imprisonment

Second Indictment

Count 1:	3 months' imprisonment.
Count 2:	No separate penalty.
Count 3:	No separate penalty.
Count 4:	No separate penalty.
Count 5:	No separate penalty.
Count 6:	No separate penalty.
Count 7:	No separate penalty.
Count 8:	3 months' imprisonment, consecutive to Count 1 but concurrent to the First Indictment and 12 months' disqualification from driving.
Count 9:	No separate penalty.

Total: 3 years and 6 months' imprisonment and 12 months' disqualification from driving.

Application for an Order under the Sex Offenders (Jersey) Law 2010 that a period of 5 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements. 

Sentence and Observations of Court:

Victim had faced prospect of giving evidence for a long time.  Late plea could not attract full discount. 

First Indictment

Count 1:

3 years' imprisonment.

Second Indictment

Count 1:	3 months' imprisonment and 3 years disqualification from driving.
Count 2:	No separate penalty.
Count 3:	No separate penalty.
Count 4:	No separate penalty.
Count 5:	No separate penalty.
Count 6:	No separate penalty.
Count 7:	No separate penalty.
Count 8:	3 months' imprisonment, concurrent to Count 1 and concurrent to the First Indictment.
Count 9:	No separate penalty.

Total: 3 years' imprisonment and 3 years' disqualification from driving.

Restraining Order made under Article 10(4) of the Sex Offenders (Jersey) Law 2010 with the following condition:-

i)       That during the period of 5 years following his release from custody, the accused be prohibited from carrying any lone female passenger in any vehicle driven by him unless the female is fully aware of his sexual conviction.

S. M. Baker, Esq., Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        We begin by confirming that we will impose the notification requirement and state that the minimum period before application can be made to remove that is 5 years.  Similarly we are satisfied that in the light of the reports which show this defendant to be at medium risk of sexual reoffending, there is a threat of serious sexual harm to the public and accordingly it is appropriate to make a restraining order under Article 10(4) of the Sex Offenders (Jersey) Law 2010; this is not opposed by Advocate Gollop and we make it in what is now the agreed terms, namely that for the period of 5 years from the date of his release from custody, the defendant be prohibited from carrying any lone female as a passenger in any vehicle driven by him unless the female is fully aware of his sexual conviction. 

2.        So now we turn to the sentence.  This must have been a terrifying incident for the victim.  You were a stranger to her who had offered her a lift home.  When she tried to get out of the car you pulled her back in and you then inserted your finger in her vagina despite her struggles.  When she managed to get free again and tried to get out of the car you grabbed her again, and this time you digitally penetrated her anus, which was very painful to her.  She feared that she was going to be raped.  Only by continuing to struggle did she eventually fall onto the pavement whereupon you drove off at speed.  She was so frightened she hid behind a wall until she was sure you had gone.  It is clear from the victim impact statement that, as one would expect, this incident has had quite an effect on her. 

3.        She also had to face the ordeal of the prospect of giving evidence for many months because you only pleaded guilty some three weeks before the date fixed for your Assize trial.  So whilst credit is still given for your guilty plea, and we are making a deduction for that, it is certainly not the full one-third to which you would have been entitled if you had pleaded guilty from the outset. 

4.        Now Mr Gollop has referred to the other mitigation in this case.  There is first of all your good character, you have no previous convictions apart from some minor motoring convictions which we ignore.  Furthermore there is the positive good character to which Mr Gollop referred and which we have read in the references.  You are a young man, you were only 21 at the time; you are clearly remorseful and we accept that a prison sentence will cause hardship for members of your family such as your partner and son, your mother and your uncle in the way that is described in the letters to us.  We have considered carefully the psychological report and the background report; you are assessed as being at medium risk of sexual or violent reoffending but the probation report recommends probation as being a means of addressing these issues.  So we have taken all that into account and thought about it. 

5.        But the Court is in no doubt that there is no alternative to prison in this case.  This was a nasty sexual assault by a stranger on a vulnerable woman in his car. 

6.        The question then is what should be the length of imprisonment.  We have been referred to a number of cases but, as the Court has said on many occasions, limited assistance can be derived by looking at the facts of particular cases; it is more a question of getting a feel for the appropriate bracket.  Counsel did draw our attention specifically to the case of De Sousa [2012] JRC 110 where a 2 year sentence was imposed, but that involved an immediate plea of guilty, unlike this case, and was also in our judgement less serious; it did not involve the element of violence on a stranger which this case does because the defendant in this case twice used force to pull the victim back into the car in order to sexually assault her.  But nevertheless, as Mr Gollop has said, there is strong mitigation and this is a comparatively young man.

7.        In all the circumstances we think that the correct sentence is one of 3 years' imprisonment.  In relation to the motoring offences we are content to impose no separate penalty on most of them, because they are very minor, and in the context of the sentence for the indecent assault there is not a great deal of purpose in imposing a separate penalty.  However, we do impose a sentence of 3 months' imprisonment on Counts 1 and 8, that is the driving without insurance.  They are to be concurrent with each other and concurrent to the sentence on the other Indictment, and we disqualify the defendant for 3 years.

8.        The sentence of the Court therefore is one of 3 years' imprisonment on the Count of indecent assault and 3 months' imprisonment concurrent on Counts 1 and 8 of the other Indictment and concurrent with the indecent assault sentence.  We disqualify you from driving for 3 years. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

AG-v-De Sousa [2012] JRC 110.

AG-v-Ferreira 2002/172.

AG-v-Kelly [2005] JRC 175.

AG-v-Richards [2010] JRC 158.

AG-v-Mendes [2010] JRC 237.