Jersey Unreported Judgments

Superior Number Sentencing - rape - drugs - possession - Class B.

[2014]JRC197

Royal Court

(Samedi)

13 October 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Marett-Crosby, Milner, Olsen, Blampied and Le Breton.

The Attorney General

-v-

R

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 25th July, 2014, following guilty pleas to the following charges:

1 count of:	Rape (Count 2).
1 count of:	Possession of a controlled drug, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978 (Count 3).

Age:  35.

Plea: Guilty.

Details of Offence:

The defendant and the victim had been in a relationship over a number of years.  The defendant had two convictions for violence against the victim, both attracted custodial sentences.  The defendant refused to accept that his relationship with the victim was over. 

Two months after his release from custody, the defendant attended the victim's home uninvited and unexpectedly.  The victim told the defendant to wait by the door, instead he entered her home and locked the door.  When she shouted for help he told her to be quiet.  He was under the influence of drugs and she was scared. 

Whilst in the lounge the defendant touched the victim's breasts over her clothing and stroked the top of her thighs.  He told her to lie back on the sofa and relax.  The victim was crying.  The defendant became angry that he had to ask for sex.  The victim submitted because she was terrified he would hurt her. 

The defendant pulled the victim's trousers and knickers down.  She kneeled on the sofa facing away from him and he penetrated her from behind before ejaculating on the floor.  The victim was crying throughout. 

Moments later the victim's friend arrived at her flat to find the victim crying and the defendant saying "sorry" before he left.  The victim reported the rape to her friend and the incident was reported to the police shortly after. 

The defendant was arrested that evening.  When he was searched at the police station he was found in possession of 124mg of ethylphenidate. 

A separate allegation of rape (Count 1) was ordered to lie on file. 

Aggravating features

1.      History of violence by the defendant against the victim;

2.      Rape took place in the sanctuary of the victim's home;

3.      Element of entrapment when the defendant entered the victim's home against

her wishes and locked the door;

4.      Defendant was under the influence of drugs at the time of the rape;

5.      Defendant showed no remorse; and

6.      The defendant is assessed as being at high risk of general re-conviction and at

high risk of committing further violent and/or sexual offences within an intimate relationship. 

Details of Mitigation:

Guilty plea.

Previous Convictions:

Convictions for 30 offences including grave and criminal assault, break and entry and driving offences. 

Conclusions:

Count 2:	6 years' imprisonment.
Count 3:	No separate penalty.

Total: 6 years' imprisonment. 

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 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. 

Restraining Order to commence from the date of release for a period of 5 years under Article 10(4) sought with the following condition:

(1) Not to contact the victim, save to make arrangements regarding their child through an intermediary.

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victim shall be the subject of a prohibition from publication of their identity during their lifetime. 

Recommendation for deportation sought. 

Forfeiture and destruction of drugs sought.

Sentence and Observations of Court:

The Court emphasised that full credit for guilty pleas would only apply in cases where a timely plea had been entered.  In this case, the defendant's plea some five weeks before the trial was due to commence caused the victim real distress. 

Count 2:	6 years' imprisonment.
Count 3:	No separate penalty.

Total: 6 years' imprisonment. 

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 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. 

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

(1) No contact with the victim.  Any arrangements regarding the child to be conducted via an intermediary. 

Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002 the victim shall be the subject of a prohibition from publication of their identity during their lifetime. 

Recommendation for deportation made. 

Forfeiture and destruction of drugs ordered.

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

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced to one count of rape and one count of possession of a very small quantity of a Class B drug which he has referred to as "crystals".  The victim of the rape was the defendant's estranged wife.  They had been in a relationship for 17 years and married in 2003.  They have one child who is 11 years old.  The defendant is a habitual drug user and has twice been convicted of domestic violence against his wife.  In July 2005 he was sentenced to 18 months' probation for a grave and criminal assault upon his wife in which he punched her, fracturing her jaw.  In September 2013 he was sentenced to 15 months' imprisonment for a number of assaults culminating in a grave and criminal assault upon his wife which involved the use of a knife and committed, we understand, in the presence of the child.  Quoting from the judgment of the Court on that occasion at paragraph 1:-

"1.      You assaulted your wife on three occasions in the space of some 10 days as described by the Crown Advocate.  The most serious, of course, was the grave and criminal assault, when you approached your wife holding a kitchen knife and you scared her by saying something like "If it means losing you and our son I am ready to do anything".  We accept that you happened to be holding the knife in your hand as the argument developed because you were in the kitchen but nevertheless, it must have been very frightening for your wife.  It is clear also that when they went to the police, after the third incident, your wife and son were in a very distressed state and, indeed, your son had had to try and pacify you during that third incident by asking you to come outside with him.  That is not something which you should inflict on a 10 year-old [child]. 

2.        His wife terminated their relationship whilst the defendant was in custody but the defendant has refused to accept this.  As stated in the social enquiry report he was emotionally consumed by the relationship and unable to let go.  Following his release from custody his behaviour became jealous and obsessional.  Quoting from paragraph 6 of the social enquiry report on one occasion he said to his estranged wife:- "You're my wife and I'm going to do everything to keep you.  No one is ever going to take you away from me."  On another occasion, outside St Thomas' Church, the defendant stopped her and said:- "See this church, we got married in a church  and I'm telling you if you're not mine, you're not anyone else's and I'm going to kill you."  This was not the first time that the defendant had threatened to kill his wife and she was extremely frightened. 

3.        On the day in question the defendant, under the influence of "crystals" came to his estranged wife's flat, it was not his home, uninvited and unexpectedly, at a time when he knew the child was not there.  He did not ring the doorbell in his usual manner so that his wife answered the door not realising it was him.  Having gained entry he locked the door to the flat behind him so that she could not escape.  The defendant was very angry and blaming her for his time in prison.  He threatened her by reminding her of previous occasions when he had been taking drugs and had become angry and agitated.  She was scared that he was going to attack her with a knife or be violent as he had in the past, particularly when under the influence of drugs.  He engaged in sexual intercourse with her, conceding that it was without her consent.  She was crying throughout.  As soon as he left the flat she called her independent domestic violence advisor who reported the matter to the police that evening. 

4.        It was apparent from her personal statement that she has been profoundly affected by the defendant's actions, the emotional and physical impact of which she continues to struggle with.  She in unwavering in her assertion that the marriage is over and she lives in fear for both herself and her child when the day arrives that the defendant is released from custody.  Quoting from paragraph 17 of the social enquiry report, but anonymising the name of the defendant's estranged wife and child, reads as follows:-

"Given the fact that the wife is stating that their marriage is over and the defendant is in custody the Children's Service are not currently involved with their child.  It is clear however that since the age of 2 the child has been exposed to serious physical violence perpetrated by his father against his mother on at least two separate occasions.  Aged nine the child witnessed his father assault his mother, the emotional impact of which resulted in him requiring emotional intervention through attendance on a course specifically designed to support children in dealing with the emotional impact of observing parental violence.  The current matters, although not observed will undoubtedly have a significant emotional impact on the child as he matures and develops a greater understanding of the relationship his parents maintained: the longer term impact of which should not be underestimated.  I am of the opinion that the defendant fails to appreciate to how damaging his actions have been on his child's emotional well-being and future development."

5.        In addition to the offences involving his estranged wife the defendant has numerous previous convictions and has been assessed at a high risk of general reconviction.  He is assessed at a medium static risk of being convicted of a further sexual offence but at a high risk of committing a further violent and/or sexual offence within the context of a future intimate relationship.  Quoting from paragraph 26 of the social enquiry report:-

"Alongside this, and until R is willing to address the underlying issues related to his offending and to explore in depth his attitudes and values condoning intimate partner violence he will in my opinion present a very significant risk of harm to any future partners."

6.        In the psychological report the author expressed the opinion that the rape committed against the estranged wife can best be explained through the context of the defendant's desire for power and control over her, a sense of sexual entitlement within a marriage regardless of the current quality of that relationship and with no consideration for the wishes of his wife. 

7.        Before turning to the issue of the sentence that should be imposed for the rape we must deal with the provisions of the Sex Offenders (Jersey) Law 2010.  On entering his plea the defendant became subject to the notification requirements under Article 3 and we must now specify the period during which the defendant may not apply to have those requirements lifted.  Article 5(4) of the law provides as follows:-

"Unless the court is satisfied that there is a reason why a shorter period would be appropriate, the period specified under paragraph (1), (2) or (3) must be a period of at least 5 years, being a period that the court is satisfied takes into account the risk of sexual harm to the public, or to any particular person or persons, that the person subject to the notification requirements of this Law poses by virtue of the likelihood of re-offending."

8.        Taking into account the risk to the public and to the defendant's estranged wife, by virtue of the likelihood of his re-offending, we agree with the Prosecution that a period 10 years from the date of conviction is both appropriate and proportionate.  It is not opposed and we so order.

9.        The Crown also seek under Article 10 of that Law an order for 5 years from the date of his release from imprisonment restraining him from contacting his estranged wife.  Any arrangement regarding their child must be undertaken through an Intermediary.  That order was not opposed by the Defence.  However, as a matter of policy, that Restraining Order should date from the date of sentence i.e. from today rather than from the defendant's release and we are therefore going to impose a Restraining Order in those terms on the defendant for a period of 8 years from today. 

10.      Turning to the sentence for the rape the Court of Appeal in Da Graca-v-AG [2006] JCA 038 have confirmed that the policy of the Court is based upon the two English Court of Appeal decisions of R-v-Billam and Ors [1986] 1 WLR 349 and R-v-Millberry and Ors [2003] 1 Cr App R 25.  Quoting from paragraph 3 of the Jersey Court of Appeal's judgment in Da Graca it said this:-

"The sentencing policy of the Royal Court in cases of rape is based on that adopted by the Court of Appeal in England which is currently set out in the decisions in R-v-Billam [1986] 1 WLR 349 and R-v-Millberry [2003] 1 WLR 546.  The effect of these decisions is that in a contested case with no mitigating or aggravating factors, the starting point will be a sentence of five years' imprisonment.  The presence of any one of a number of specific aggravating factors will increase that starting point in such a case to eight years, fifteen years or life.  The relevant starting point must then be reviewed against the whole range of relevant mitigating factors and other aggravating factors, and increased or reduced accordingly to produce the final sentence.  This two-stage process can seem unduly mechanical.  However, it needs to be borne in mind, as all the cases have emphasised, that these are only guidelines.  Cases of rape are infinitely varied.  Each one is unique.  The sentencer is called upon to make a judgment about the cumulative effect of all the circumstances of the offence.  Where there are major aggravating factors present, it may make little difference whether they are treated as increasing the starting point or the amount which is added to the starting point."

11.      Applying these guidelines the Prosecution have taken a starting point of 5 years.  Of the nine aggravating features, that following Millberry, can add substantially to that starting point, the Prosecution point to the history of violence by the defendant against his estranged wife. 

12.      The Prosecution have also listed a number of further aggravating features including firstly that the rape took place in the sanctuary of his wife's home, secondly that the defendant was under the influence of drugs and thirdly, that the defendant has shown no remorse and has expressed indeed a sense of entitlement. 

13.      Taking all of this into account and the defendant's plea of guilty the Prosecution seek a sentence of 6 years' imprisonment and no separate penalty for the possession of the small quantity of drugs. 

14.      The Prosecution make the point that the defendant maintained his plea of not guilty right up to 25^th July, 2014, for a trial due to start on 1^st September, 2014.  His first appearance in Court was on 27^th February, 2014.  It is clear that the prospect of giving evidence caused real distress to his wife and she was kept waiting for this period before the plea was entered.  In this respect we note the following observations of the English Court of Appeal in the case of Millberry at paragraph 28 where it said this:-

"Having to give evidence and especially being cross-examined can make a victim relive the offence. We have seen many victim impact statements that make this clear. Obviously the distress which is avoided is greater the earlier the victim is informed so the discount should be reduced if there is not an early plea. There is also the fact that the plea demonstrates that the offender appreciates how wrong his conduct was and regrets it. While it is desirable to avoid taking up the time of the court and incurring expense unnecessarily, this is a less important in mitigation than the other two factors we have just mentioned. With the Panel, we stress that the maximum credit should only be given for a timely guilty plea."

In this case the guilty plea of the defendant was not timely.

15.      Turning to mitigation the defendant has of course, pleaded guilty albeit that it was as we have said, late in the day, subjecting his wife to unnecessary distress over the prospect of giving evidence.  The defendant himself has expressed no remorse for this offence and we have no letter from him or indeed from anyone else attesting as to his character.  The mitigation is therefore is very limited. 

16.      Advocate Landick has questioned whether the 5 year starting point, which he does not dispute, relates to a contested trial whereas in this case there was a guilty plea.  Should the court, he asked, therefore reduce the starting point of 5 years.  The position in our view is explained by the Court of Appeal in the passage that we have just referred to.  We have reviewed the limited mitigation available to the defendant and the aggravating features as put forward by the Crown, which we accept, and, having stood back from the case, we have concluded that the sentence of 6 years sought by the Crown is the correct sentence. 

17.      In this case the defendant's estranged wife was violated in the sanctuary of her home, the door to which, the only means of her escape, had been locked.  The past history of violence was more than enough to have placed her in a position of real fear of its repetition.  The defendant seemed to regard his estranged wife as an object to which he was entitled and over which he could exercise power through the threat of violence.  Such an attitude and conduct will simply not be tolerated by the Courts and merits severe punishment. 

18.      In relation to Count 2 you are sentenced to 6 years' imprisonment.  On Count 3 there will be no separate penalty giving rise to a total sentence of 6 years' imprisonment. 

19.      We now turn to the issue of deportation and the first part of the test as set out in the case of Camacho-v-AG [2007] JLR 462.  Taking into account the defendant's previous convictions, including those involving his estranged wife, culminating in this charge of rape, his drug use and the assessment of the risk of his re-offending which we referred to earlier we have no difficulty in concluding that his continued presence is detrimental to the Island. 

20.      The second part of the test namely the effect of his deportation on the family rights under Article 8 of innocent persons connected to the defendant and indeed the defendant himself, is more difficult.  The defendant moved to Jersey where his parents were working when he was 16 and he has been here for 17 years.  His parents have since moved back to Madeira where he has three brothers.  He has a sister in Venezuela and one other brother in Jersey.  Accordingly his family is predominantly based in Madeira.  Of course he has his estranged wife and an 11 year old child in Jersey, a child who he has exposed to serious physical violence.  We understand that the child has expressed the wish to have no contact with the defendant and has not seen him since he has been in custody.  It would be incongruous for the defendant to pray in aid his right to a family life with an estranged wife who he has treated in this way and a child who he has exposed to such violence.  Indeed the wife lives in fear of the day that the defendant will be released from custody.  The deportation of the defendant will not, in our view, sever this family.  It has already been severed by the criminal conduct of the defendant.  His wife and, we believe, the child have no desire for the defendant to remain in the jurisdiction. 

21.      We conclude that the defendant's deportation would not be disproportionate and we are therefore going to recommend his deportation but we do so in the knowledge that when the Lieutenant-Governor comes to consider the issue, he will take into account the relationship, if any, between the defendant and his child at that time. 

22.      We also order the forfeiture and destruction of the drugs. 

Authorities

Sex Offenders (Jersey) Law 2010.

Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002.

AG-v-R [2013] JRC 162.

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

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

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

Camacho-v-AG [2007] JLR 462.

AG-v-Z [2011] JLR 107.

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

Whelan's Aspects on Sentencing in the Superior Courts of Jersey 3^rd Edition.