Jersey Unreported Judgments

Superior Number Sentencing - rape

[2021]JRC049

Royal Court

(Samedi)

4 February 2021

Before     :

Sir William Bailhache, Commissioner, and Jurats Ramsden, Thomas and Pitman

The Attorney General

-v-

Mark Fernandes

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded following conviction at Assize trial, to the following charges:

1 count of:

Rape, contrary to Article 5(1) of the Sexual Offences (Jersey) Law 2018 (Count 1)

Age:  25.

Plea: Not guilty.

Details of Offence:

Following a night out, the defendant raped his 21 year old victim when she did not have the ability to consent given her level of intoxication.

 

The defendant and the victim had been at a birthday party of their mutual friend, the defendant and the victim were not particularly friendly and had not socialised together since they were teenagers.  The victim drunk a lot during the evening and was heavily intoxicated by the time they went to town as described by various witnesses.  The victim does not remember anything from going into town until waking up the next morning.  The victim was denied entry to Mimosa once into town because she was too drunk.  Her friends went to the toilet leaving her with the defendant and some others they had been out with and the defendant and the victim left and the defendant walked the victim towards the Marina where he raped her.  They were seen by two security guards who described the victim as being very drunk.  The defendant took the victim back to his house and she was picked up from there by her boyfriend the next morning.

 

The victim was concerned something had happened and messaged the defendant who confirmed nothing had happened because she had been too drunk.  The victim ended up going to A&E and she was still concerned something had happened as she had some pain and was examined at Dewberry House where it was confirmed that she had had sexual intercourse.  Swabs were taken from the victim and the defendant's DNA was found.

 

The defendant was arrested and pleaded not guilty and was found unanimously guilty by an eleven-person Jury of rape.

Details of Mitigation:

Defendant's good character and positive character references.

Previous Convictions:

None. 

Conclusions:

Count 1:

Starting point 5 years' imprisonment.  5 years' imprisonment.

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

Restraining order sought pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 for an indeterminate period with the following conditions:-

That the Defendant be prohibited from approaching or contacting directly or indirectly, the victim, other than any contact which is inadvertent or unavoidable.

Sentence and Observations of Court:

Count 1:

4 years' imprisonment.

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

Restraining order made pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008 for a period of 5 years from date of sentence with the following conditions:-

That the Defendant be prohibited from approaching or contacting directly or indirectly, the victim, other than any contact which is inadvertent or unavoidable.

Ms E. L. Hollywood, Crown Advocate.

Advocate J.C. Gollop for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The defendant is here to be sentenced following a finding of guilt in relation to one count of rape on 5^th May, 2019 in the parish of St Helier.  He was acquitted by the jury on the second count of rape which was in relation to the same complainant on the same evening about an hour or so later. 

2.        We approach sentence in this case having regard to the principles which this Court has accepted in the case of R v Millberry [2003] 1 Cr App R 25, the English Court of Appeal decision as also was applied by this Court in AG v Dobrin and Ors [2019] JRC 097 and AG v B [2020] JRC 110. 

3.        So here we have a case of a defendant of previous good character, who has been convicted at trial of the serious offence of rape.  There were two counts as I have said, the jury convicted on the first count and acquitted on the second.  Both the defendant and the complainant had consumed quantities of alcohol.  The Crown's case was that the complainant had consumed so much alcohol that she was not able to consent to sexual intercourse and that the defendant either knew that or had no reasonable belief that she did consent, and by their verdicts the jury concluded the Crown had proved its case in respect of the first count but had not done so in respect of the second.  The defendant is appealing his conviction which goes to the Court of Appeal in 6 weeks' time or so.  He does not have the opportunity therefore of relying on his remorse today as mitigation.  Nor obviously can he rely on a guilty plea, but at the same time his acquittal in respect of Count 2 does not seem to us to be something we can disregard altogether.  It shows the jury were not sure that there was no consensual intercourse or not sure that he did not reasonably believe she did consent when they had sex at his house, and in our judgment it is right to look at all these circumstances of the events of that evening and early morning.

4.        There were no aggravating features here.  There was no violence.  The jury have found an absence of consent through drunkenness but on the other hand there was independent evidence during the rape that the victim called out "amore, amore", that she straddled the defendant and as the witness put it was "doing all the work".  In other words, she gave no sign of having sex against her will albeit, the Crown can rightly say, that is because she had drunk so much alcohol she was not in a state where she could make a decision about it.  But it does mean that there was no aggravating feature that sometimes appears in other cases of rape. 

5.        We do not accept the Crown contention that the defendant acted in breach of trust.  He and the complainant were two adults who had been out at a convivial birthday part given by mutual friends.  They knew each other as acquaintances, albeit for some time.  They had both consumed alcohol.  We do not think the expression "breach of trust" extends to these circumstances, although of course that is not to say that as friends one would not always hope that they would look after each other; but we do not take it as an aggravating feature. 

6.        We recognise that acquaintance rape is neither more nor less serious than relationship rape or stranger rape and that is indeed one of the reasons why it seems to us that the alleged breach of trust is not in fact an aggravating feature here; because to say that their acquaintance of each without more involved a breach of trust aggravating the offence would be to say that acquaintance rape is more serious than the other kinds of rape.

7.        We also recognise that it is right for a sentencing court to have regard to the conduct of the victim, not because she is responsible for the crime, nor because she carries any blame for it, but because it can be the case that the victim's conduct makes the offender's culpability less than it might otherwise have been.  Before this statement attracts adverse comment in some quarters let me add that it is firmly, firmly rooted in authority.  In Millberry at paragraph 14 the Court of Appeal was referring to the advice given to them by the Sentencing Advisory Panel in the United Kingdom which had carried out a good deal of research into appropriate sentences for rape, and the Court of Appeal said this:

"14.    The Panel after referring to the results of their consultation deal with the victim's behaviour in terms with which we would agree as follows:

"The Panel takes the view that although rape is always a very serious crime, the extent of the offender's culpability inevitably differs from case to case, as it does in all other offences. Where, for example, the victim has consented to sexual familiarity with the defendant on the occasion in question, but has said 'no' to sexual intercourse at the last moment, the offender's culpability for rape is somewhat less than it would have been if he had intended to rape the victim from the outset. This is not to say that any responsibility for the rape attaches to the victim. It is simply to say that the offender's culpability is somewhat less than it otherwise would have been. The degree of the offender's culpability should be reflected in the sentence, but, given the inherent gravity of the offence of rape, the sentence adjustment in such a case should, we think, be relatively small.""

Well, the judges there were considering culpability where the victim had consented to sexual familiarity between her and the defendant and that is not the case here.  Here we do have a victim who, the jury were entitled to consider on the CCTV evidence, was attracted to the defendant and perhaps had given non-verbal signals that he could have misinterpreted; and some support for that can be found for that in the acquittal on Count 2.  The sentencing adjustment may be small but some adjustment, in our view, there should be.

8.        We have read and considered the victim impact statement and the victim personal statement.  Anyone who suffers rape must surely experience some psychological harm in our view and we have approached it on that assumption; and against that yardstick it is at least better than it might have been that the expert psychologist considers the victim here falls into the mild psychological harm category, no doubt helped by the fact that she cannot recall the events of the evening.  But it is right that we look also at her personal statement which includes these comments:-

"I am still struggling to go out on my own.  I am trying hard to become independent again.  There have been lots of times when I felt very low and suffered with anxiety, it is all related to what happened to me.  I am trying hard to get my life back to normal again and be independent.  Since the incident I have not been able to go out in town, like clubbing or evening events."

And for the avoidance of doubt that, of course, was prior to lockdown.

"I even find it hard to go into town shopping on my own.  I tend to go only to the little shops close by to my home instead to larger supermarkets where lost of other people are.  I am proud that I have managed to go away on a small holiday trip with other people close to me, that helped me to relax and forget about the whole stress related to what happened to me back in 2019.

When I attended court to give evidence it felt horrible, I was under a lot of stress and the procedure where being questioned about what I couldn't remember felt overwhelming and scary.  I remember that after finishing on the stand, I left the court and fell on my knees, crying and being an emotional wreck"

And there is other material in her victim personal statement to similar effect and then as to affecting her work:

"After the incident I struggled at work, suffering with depression and anxiety did not help me performing well at the work tasks.  I was signed off sick for prolonged periods and in the end I had to resign because it wasn't fair on my work being signed-off for so long.  Then I struggled to find my feet again, I was spending lots of time only at home, didn't know what I will do next.  I felt so depressed that I was sleeping day and night, that was all able to do.  I had no energy to do stuff or to focus in finding new work.  From October 2019 until February 2020 I have seen a life coach, ..., who helped me to regain my confidence in finding something I like to do as a job and little things which helped me gain my confidence.  Those sessions helped with my anxiety as well.  After February 2020 I managed to find a new work place and started to slowly move on with my life."

9.        The Court has had close regard to those statements because they do emphasise the effect which rape has on a victim and it is absolutely appropriate to take that into account in the way in which we approach sentence.

10.      The defendant is of good character and we have been provided with numerous references for him from a wide variety of people.  The offence is considered very much out of character.  He is very well regarded indeed.  He has a good work record, a good stable home life.  But rape is rape, and he stands convicted unanimously by a jury.  We take the Milberry initial point of 5 years.  Perhaps I can just emphasise that although in AG v B and perhaps in AG v Dobrin it was described as a starting point, it is an initial point, because it is not to be treated in the same way as the starting points which the court applies in drugs cases.  It is an initial point of 5 years. 

11.      We have considered all the mitigation put to us and the features of the case which I have set out and in accordance with the authorities we have taken a step back and decided what we think is the right sentence.  The sentence of this Court on the charge on which you have been convicted is that you receive a sentence of 4 years' imprisonment and you are sentenced accordingly. 

12.      You are also, as a result of your conviction, subject to the notification requirements in the Sex Offenders (Jersey) Law 2010.  You are entitled to apply to the Court to be relieved of the notification requirements.  You cannot do this for a period of 5 years from the date of your sentence. 

13.      The Crown also asks for a restraining order in these terms:

"That the Defendant be prohibited from approaching or contacting directly or indirectly, the victim, other than any contact which is inadvertent or unavoidable."

That is a restraining order, not pursuant to the Sex Offenders legislation but pursuant to Article 5 of the Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008.  It is suggested that this should continue for an indeterminate period.  The Court is not of the view that that is appropriate, and we consider that we should put a limit on the period in which the restraining order continues.  If the defence had indicated that the restraining order was resisted we would have had to consider more directly the terms of the statute.  We do not in this case have to do so because the defence have agreed that the restraining order is appropriate and so Mr Fernandes you are prohibited from approaching or contacting directly or indirectly, for the avoidance of doubt that includes social medial contact, the victim, other than any contact which is inadvertent or unavoidable and if you were to breach that you would be liable to imprisonment up to a period of 2 years or a fine.  The restraining order is for a period of 5 years from today. 

14.      4 years' imprisonment. 

Authorities

R v Millberry [2003] 1 Cr App R 25

AG v Dobrin and Ors [2019] JRC 097. 

AG v B [2020] JRC 110. 

Sex Offenders (Jersey) Law 2010. 

Crime (Disorderly Conduct and Harassment)(Jersey) Law 2008. 

Sentencing Council Guidelines regarding Rape. 

Sexual Offences (Jersey) Law 2018