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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- F [2016] JRC 105 (13 June 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_105.html Cite as: [2016] JRC 105 |
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Superior Number Sentencing - Indecent assault.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Marett-Crosby, Olsen, Ramsden, Sparrow and Thomas. |
The Attorney General
-v-
F
Sentencing by the Superior Number of the Royal Court, after conviction at Assize trial on 27th April, 2016 on the following charges of:
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4 counts of: |
Indecent assault (Counts 1, 2, 3 and 11). |
Age: 51.
Plea: Not guilty.
Details of Offence:
The defendant was the stepfather of the complainants and had lived with their mother for a number of years until the relationship broke up in around 2001.
Between 1996 and 2001 the defendant regularly indecently assaulted the first complainant when she was aged between 3 and 7 years of age. He would come to her bedroom at bedtime and, under the pretext of playing a game pretending they were at the doctors, would digitally penetrate her vagina. This happened frequently over the indictment period and only ceased when the complainant moved bedroom making it more difficult for the defendant to abuse her. Counts 1 and 2 were sample counts reflecting the course of conduct perpetrated over a period of years. Count 3 represented a specific incident when the defendant digitally penetrated the complainant using two fingers as opposed to one and represented an escalation of the sexual abuse.
The defendant also indecently assaulted the second complainant, the elder sister of the first complainant at the family's home address when she was aged in her early teens. He entered her bedroom after a night out, partially got on top of her and began kissing her. He then removed the bedclothes from the top half of her body and moved her leg. The indecent assault ceased when he was interrupted by his partner, the girl's mother, entering the room.
A complaint in respect of this incident was made shortly after it occurred in 2002. The defendant was interviewed at that stage and denied the offence. He was not charged.
Between 2008 and 2012 the first complainant made disclosures about the defendant's abuse of her. The defendant was again arrested and interviewed and denied all allegations. Following a further investigation, in 2015 he was charged with offences disclosed by the first complainant, as well as the charge which had not been proceeded with in 2002.
Details of Mitigation:
The Crown:
The defendant did not have the advantage of a guilty plea. He continued to deny the offences and thus showed no remorse. As such mitigation was limited.
The Defence:
Whilst having an historic record the defendant was to be treated as a man of good character. His references showed that he was highly regarded by many individuals. He had served voluntarily on the lifeboat for 9 years.
The delay in the decision to charge the defendant had placed pressure upon him.
Previous Convictions:
Possession of a controlled drug and burglary with intent to steal in the 1980's. Threating behaviour, dangerous driving and resisting the police in the 1990's. No convictions recorded since 1997 and the defendant had never received a custodial sentence.
Conclusions:
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Count 1: |
6 years' imprisonment. |
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Count 2: |
6 years' imprisonment, concurrent. |
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Count 3: |
6½ years' imprisonment, concurrent. |
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Count 11: |
6 months' imprisonment, consecutive to Counts 1 to 3. |
Total: 7 years' imprisonment.
Order sought under Article 5 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 (27th April, 2016).
Restraining Order sought under Article 10 to commence for a period of 10 years from the date of sentence (13th June, 2016,) pursuant to Article 10(4) in the following terms:-
(a) That the defendant shall not have any direct or indirect contact, in any way whatsoever (including, but not limited to, contact through the mediums of email, social networking sites, texting or any other form of electronic communication) with either of the victims;
(b) That the defendant is prohibited from being alone with any female under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult who is over the age of 21 years and who is aware of the defendant's convictions;
(c) Where the defendant finds himself alone with a female under the age of 16 years and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable.
Anonymity
Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002, both victims shall be the subject of a prohibition from publication of their identities during their lifetimes. This is by automatic operation of law.
Costs application to be adjourned to another day.
Sentence and Observations of Court:
The sentences imposed by the Royal Court suggested a wide band of potential starting points ranging from 4 years 6 months' to 6 years 9 months' imprisonment for indecent assault involving digital penetration.
Although it had been recognised in the Royal Court that offences of this kind are not readily susceptible to a guideline approach, the Court of Appeal in J v AG had encouraged the identification of a starting point.
The conclusions moved for by the Crown indicated a starting point of seven years, which was too high. The appropriate starting point for Count 3, being the most serious of the offences, taking into account the course of conduct was 5½ years' imprisonment.
In serious cases of indecent assault such as this, personal mitigation had to take second place behind the duty to protect victims. Half a year reduction was allowed for personal mitigation.
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Count 1: |
4½ years' imprisonment. |
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Count 2: |
4½ years' imprisonment, concurrent. |
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Count 3: |
5 years' imprisonment, concurrent. |
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Count 11: |
4 months' imprisonment, consecutive. |
Total: 5 years and 4 months' imprisonment.
Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a minimum 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 sentencing (13th June, 2016).
Restraining Order made under Article 10(4) to commence for a period of 10 years from the date of sentence (13th June, 2016,) pursuant to Article 10(4) in the following terms:-
(a) That the defendant shall not have any direct or indirect contact, in any way whatsoever (including, but not limited to, contact through the mediums of e-mail, social networking sites, texting or any other form of electronic communication) with either complainant;
(b) That the defendant is prohibited from being alone with any female under the age of 16 years, aside from such contact which is inadvertent or unavoidable. They will be considered to be alone if there is not a parent, guardian or responsible adult who is over the age of 21 years and who is aware of the defendant's convictions; and
(c) Where the defendant finds himself alone with a female under the age of 16 years and such contact has been inadvertent or unavoidable, he must remove himself from that situation as soon as reasonably practicable.
Anonymity
Pursuant to Article 3(1) of the Criminal Justice (Anonymity in Sexual Offence Cases)(Jersey) Law 2002, both complainants shall be the subject of a prohibition from publication of their identities during their lifetimes. This is by automatic operation of law.
Costs application to be adjourned for a date to be fixed.
S. C. Thomas, Esq, Crown Advocate.
Advocate M. L. Preston for the Defendant.
JUDGMENT
THE commissioner:
1. In view of the lateness of the hour we are going to produce a written judgment setting out our reasons which will be available as soon as possible. Dealing first with some of the initial issues in terms of Counts 5 and 6 of the original Indictment. We note that no evidence is adduced on those two counts and the defendant is acquitted on those. Secondly, in terms of costs, the application by the Crown is adjourned for a date to be fixed. Thirdly, dealing with the Sex Offenders (Jersey) Law 2010, we grant the restraining orders as set out in the Crown's submissions and we set the periods both for the notification and for the restraining order as 10 years from today's date in both cases.
2. Turning to the sentences, on Count 1 you are sentenced to 4½ years' imprisonment, on Count 2; 4½ years' imprisonment, concurrent, on Count 3; 5 years' imprisonment, concurrent, and on Count 11; 4 months' imprisonment, consecutive, which makes a total of 5 years and 4 months' imprisonment.
