Jersey Unreported Judgments

Superior Number Sentencing - attempted rape - indecent assault.

[2013]JRC203

Royal Court

(Samedi)

18 October 2013

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Marett-Crosby, Blampied, de Veulle, Liddiard and Tibbo.

The Attorney General

-v-

Steven James Vincent

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial on 4^th September, 2013 on the following charges:-

1 count of:	Attempted rape (Count 1a).
1 count of:	Indecent assault (Count 2).

Age:  20. 

Plea: Not guilty.

Details of Offence:

The defendant, then aged 17, met the 13 year old victim on Facebook.  In June 2011 he invited the girl to his house when he knew his mother would be out.  Initially they sat in the living room before going to his bedroom where they began messing around.  The defendant got the girl on the floor with him on top of her.  She complained that she could not breathe.  He took her mobile phone and refused to return it unless she "did it" with him.  She understood this to mean have sex with him.  The girl went to the bedroom door and tried to leave but the defendant got there first and shut it closed.  At this point she started to cry. 

The defendant eventually got the girl on his bed where he told her that if she did not agree to have sex with him he would force her to.  He pushed her into the corner of the bed and she hit her head hard on the wall but she had no visible injury.  He then forcibly removed the girl's jeans and knickers.  Throughout the girl struggled and shouted.  The defendant threatened to strangle her if she did not comply.  He put his hands around her neck and applied pressure as he tried to insert his penis into her vagina. 

The girl managed to struggle free and tried to get off the bed but the defendant pushed her back down.  He grabbed hold of her head and pushed it down towards his penis. Although she resisted he eventually forced his penis into her mouth (Count 2).  He continued to try and penetrate her vagina.  The victim described in cross-examination how it hurt, she was struggling and in pain.  The defendant did not ejaculate. 

Immediately after the defendant used force to take a close-up photograph of the victim's genitals with his iPhone without consent, which was later recovered from his computer.  He then let her dress but refused to return her knickers.  Before she left the defendant threatened to kill the victim if she told anyone. 

The police were notified on the day of the incident.  The victim was examined by the Force Medical Examiner and found to have bruising to her neck and face, consistent with strangulation.  She also had bruising on her vagina. 

The defendant was unanimously convicted of attempted rape and indecent assault following a 3 day Assize trial.  He was acquitted of rape (Count 1).  The indecent image taken on the iPhone was subject to a separate Indictment and ordered to lie on file.  Notwithstanding that it was an aggravating feature of the attempted rape. 

Aggravating features

1. Violence used over and above the force necessary to commit the rape;

2. Offence was planned;

3. Further degradation by forced oral sex; and

4. Further degradation when a close-up photograph of the victim's genitals was taken without consent and by force.

Details of Mitigation:

Youth and delay.

Previous Convictions:

11 previous convictions including 4 common assaults, 2 larcenies and resisting arrest.

Conclusions:

A starting point of 11 years' imprisonment would be appropriate for an adult offender.  Taking into consideration the defendant's age at the time of the commission of the offence the Crown took a starting point of 8 years' imprisonment. 

Count 1a:	6 years' youth detention.
Count 2:	3 years' youth detention, concurrent.

Total: 6 years' youth detention. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 8 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction sought. 

Restraining Order to commence from date of release for a period of 8 years under Article 10(4) with the following conditions:-

i)       that the defendant be prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent, guardian or an adult over the age of 21 (not including the defendant's father D).  This prohibition does not operate to prohibit contact with females under the age of 16 years that is inadvertent and avoidable in the course of the defendant's lawful daily activities - for example, when travelling as a passenger on public transport or when buying items in a shop;

ii)      that in circumstances where the defendant finds himself alone with a female under the age of 16, he has a positive duty to remove himself from that situation as soon as reasonably possible;

iii)      that the defendant have no contact with A;

iv)      that the defendant shall produce to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such request may be made anywhere, including by the police attending at the defendant's place of residence; and

v)       that the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless:

         a)         it has the capacity to retain and display the history of internet use; and

         b)         the defendant ensures that such history is not deleted.

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey Law 2002 both A and B (in light of the allegations of Unlawful Sexual Intercourse), shall be subject of a prohibition from publication of their identities during their lifetime.

Forfeiture and destruction of the iPhone and tower containing the hard drive of the HP computer used in conjunction with these offences.

Sentence and Observations of Court:

Conclusions granted.

Ms S. J. O'Donnell, Crown Advocate.

Advocate R. S. Tremociero for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for one count of attempted rape and one count of indecent assault.  The defendant, who was nearly 18 at the time of these offences, took the victim, who was 13 and who he had been communicating with via text, up to his bedroom when they were alone in his mother's house.  Initially they were, in her words, messing around, when they ended up on the floor, clothed, with the defendant on top of her, when she complained that she could not breathe.  The defendant let her up but then took her phone and prevented her from leaving his room unless she "did it".  The victim became distressed.  He then pushed her onto his bed and said to her "You can either do it or I am going to force you."  The defendant then forcibly removed her jeans and knickers and removed his own trousers whilst holding her down.  He told her that if she did not "do it" he would strangle her, placing his hands around her neck and applying pressure, causing bruising which the Force Medical Examiner found was consistent with her account.  The defendant kept trying to penetrate the victim while she struggled to push him away.  She was found to have bruising on her vagina which the Crown say was sustained when the defendant vigorously attempted to penetrate her.  The defendant then pushed the victim's head down towards his penis, forcing it into her mouth, despite her resistance.  In the end, and again by force, he took a close-up picture of her vagina with his iPhone which was subsequently transferred to and recovered from his computer.  There was clear evidence of the victim's distress as soon as she was able to leave the house and she made an immediate complaint to the police. 

2.        In his interview with the police the next day, the defendant denied the incident ever took place, saying the victim never came to his house that day and had never been in his bedroom.  He pleaded not guilty and was found guilty by the unanimous verdict of the jury at his Assize trial in the face of very substantial evidence.  He did not give evidence himself.  He continues to deny the offences, refusing to discuss the same with the Probation Department and with the psychologist Dr Briggs.  He is 20 and therefore the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994 apply and the Crown have treated him as if he were nearly 18, the age at the time of the offences, for sentencing purposes. 

3.        The Courts in Jersey have looked for guidance to the English Court of Appeal decisions in R-v-Billam and Others [1986] 1 WLR 349 and R-v-Milberry [2003] 1 Cr App R 25 (see AG-v-Da Graca [2005] JRC 161), the latter cases indicating a starting point of 8 years for an adult offender where the victim, as here, was a child.  Unlike drugs cases, starting points in this context can be adjusted upward by aggravating features of which those specified in Milberry included, on the Crown's case, the following; firstly that violence was used over and above the force necessary to commit the offence; secondly there was an element of planning and thirdly there was further degradation of the victim through the forced oral sex and the picture taken of her genitals at close quarters. 

4.        Billam says that the starting point for attempted rape should normally be less than for a completed offence, especially if desisted from at an early stage.  This, the Crown say, did not happen here.  The defendant made every effort to penetrate the victim and indeed, the victim thought she had been penetrated.  The only reason why he failed was because of the victim's struggle and resistance throughout. 

5.        The Crown has also taken into account the following additional aggravating factors.  Firstly, the victim was held against her will in the defendant's bedroom and her phone removed so that she could not contact anyone; secondly, the attack was sustained; thirdly, the defendant has previous convictions for violence, although not for sexual offences; fourthly, the defendant has shown no remorse and is still in denial and fifthly, the victim has suffered in a number of ways, as made clear in her impact statement.  Taking all of these aggravating factors into account, the Crown would, in the case of an adult offender, have moved for a starting point of 11 years.  The defendant is not, of course, an adult offender.  In this respect the English Court of Appeal in Billam said this:-

"About one-third of those convicted of rape are under the age of 21 and thus fall within the scope of section 1 of the Criminal Justice Act 1982.  Although the criteria to which the court is required to have regard by section 1(4) of that Act must be interpreted in relation to the facts of the individual case rather than simply by reference to the legal category of the offence, most offences of rape are "so serious that a non-custodial sentence cannot be justified" for the purposes of that provision.  In the ordinary case the appropriate sentence would be one of Youth custody, following the term suggested as terms of imprisonment for adults, but making some reduction to reflect the Youth of the offender.  A man of 20 will accordingly not receive much less than a man of 22, but a Youth of 17 or 18 may well receive less."

6.        Taking the defendant's youth into account, the Crown has therefore applied a very substantial reduction in the sentence it seeks.  It moves for a sentence of 6 years' youth detention and this on the basis that it takes into account the indecent assault as an aggravating factor which will attract a concurrent sentence. 

7.        Turning to mitigation the defendant, Advocate Tremoceiro conceded, gets no discount for a guilty plea and he lacks any remorse.  Advocate Tremoceiro submitted that the two mitigating factors available to him are his youth and the delay.  In terms of youth it was said in Milberry at paragraph 30 that the sentence should be "significantly shorter for young offenders."  In terms of delay the offence took place on 5^th June, 2011, and the defendant was not charged until 19^th December, 2012, some 18 months later.  We have been given a copy of the chronology and there is, in our view, a good explanation for much of this delay, bearing in mind the defendant's complete denial of the offence.  Scientific evidence took time to collate and the victim was at first reluctant to have the notes of her dealings with the Brookes Agency disclosed.  We think there is much in what the Crown say namely that it was always in the hands of the defendant to change his plea thus expediting the process, and he was, of course, on bail throughout this period.  Even so, we think there has been an unacceptable element of delay in this case which we will take into account. 

8.        Advocate Tremoceiro submits that some distinction must be made between rape and attempted rape and that fact that the defendant was acquitted of the former.  We accept the submissions of the Crown in this respect.  Billam has this to say in relation to attempted rape:-

"The starting point for attempted rape should normally be less than for the completed offence, especially if it is desisted at a comparatively early stage.  But, as is illustrated by one of the cases now before the court, attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence."

This was not a case of the defendant desisting at an early stage.  It was a sustained attempt to penetrate the victim, causing her pain and bruising which she frustrated by her struggling.  When he was unable to penetrate, he then degraded her in a manner which we have already described.  Advocate Tremoceiro submitted that the overall sentence that the Court should impose should be one of 5 years as opposed to 6 years, as moved for by the Crown.  We disagree.  This was a very serious offence committed by the defendant, who was nearly 18, on a 13 year old girl.  It involved, in our view, all of the aggravating features put before us by the Crown, including an element of planning, violence beyond that which is necessary to commit the offence, and degradation of the victim by forced oral sex and taking a picture of her genitals. 

9.        We have considered the Young Offenders Law and, as conceded by Advocate Tremoceiro, this offence is too serious to justify a non-custodial sentence.  We accept the approach of the Crown as to the starting point of 11 years for an adult offender and we determine that a reduction of 5 years, to reflect the defendant's youth and the delay, together with all of the other points made by Advocate Tremoceiro, is appropriate, if, arguably, generous. 

10.      Turning to the Sex Offenders Law we are concerned here primarily with the protection of potential victims.  We have considered the information presented to the Court about the activities of the defendant with underage girls, quite separately from this offence, and we have no doubt that he poses a threat of serious sexual harm to the public, justifying protective measures being put in place pursuant to this Law.  At the same time we have taken into account the submissions of Advocate Tremoceiro, in particular that the defendant was still maturing when these offences took place and that he is still young.  In reality if we are looking at orders that will bite when he is released from his sentence, which we would think would be in approximately 4 years' time.  We conclude that the orders sought should be imposed for 4 years from that release, interference with the defendant's Article 8 human rights, which we conclude is proportionate.  The orders will all, however, date from the date of conviction. 

11.      Moving to the Sex Offenders Law therefore, under Article 5(4) of that Law we specify the period of 8 years with effect from the date of conviction, before the defendant can apply to be no longer subject to the notification requirements. 

12.      Under Article 10(4) of the Sex Offenders Law we impose the following restraining orders for a period of 8 years with effect from the date of conviction:-

(i)        That the defendant be prohibited from knowingly being alone with any female under the age of 16 years, except in the presence of that person's parent, guardian, or an adult over the age of 21 (not including the defendant's father).  This prohibition does not operate to prohibit contact with females under the age of 16 years that is inadvertent and unavoidable in the course of the defendant's lawful daily activities - for example, when travelling as a passenger on public transport or when buying items in a shop;

(ii)       That in circumstances that the defendant finds himself alone with a female under the age of 16, he has a positive duty to remove himself from the situation as soon as reasonably possibly;

(iii)      There will be no contact with the complainant;

(iv)      That the defendant shall procure to a police officer forthwith on request for examination, from time to time, any computer or any device which may access the internet, or any telephone or mobile phone or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such request may be made anywhere, including by the police attending at the defendant's place of residence; and

(v)       That the defendant is prohibited from owning or having in his possession or having access to any device capable of accessing the internet unless:-

(a)       It has the capacity to retain and display the history of internet use; and

(b)       The defendant ensures that such history is not deleted. 

13.      Turning to the sentence, under Count 1A you are sentenced to 6 years' youth detention, and on Count 2 you are sentenced to 3 years' youth detention, concurrent, which makes a total of 6 years' youth detention. 

14.      We order the forfeiture and destruction of the iPhone and the tower which contains the hard drive of the HP computer, both items seized by the police.  In our view nothing less than this can ensure that this degrading picture of the victim can never be retrieved. 

Authorities

Sex Offenders (Jersey) Law 2010.

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

R-v-Billam and Others [1986] 1 WLR 349.

R-v-Milberry [2003] 1 Cr App R 25.

AG-v-Da Graca [2005] JRC 161.

Da Graca-v-AG [2006] JCA 038.

AG-v-Z [2011] JLR 107.

Cooper-v-AG [2001] JLR N 2.

Durkin and Howard-v-AG [2005] JLR 12.

AG-v-Perez [2007] JRC 059.

AG-v-Marsh [2008] JRC 121.