J v HM Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: James McNeill,George Bompas,David Doyle,Bompas,McNeill,Doyle, JJ.A.
• Judgment Date: 29 April 2016
• Neutral Citation: [2016] JCA 90
• Date: 29 April 2016

[2016] JCA 90

COURT OF APPEAL

Before:

James McNeill, Q.C., President; George Bompas., Q.C., and; David Doyle First Deemster & Clerk of the Rolls, Isle of Man.

J

and

Her Majesty's Attorney General

Advocate A. T. H. English for the Appellant.

Crown Advocate C. M. M. Yates for the Respondent.

Authorities

Warren v Attorney General [2014] (1) JLR 383.

Loi (1895) modifiant le droit criminel.

Sex Offenders (Jersey) Law 2010.

Harrison v Attorney General [2004] JLR 111.

Whelan on Aspects of Sentencing in the Superior Courts of Jersey (third edition).

Court of Appeal (Jersey) Law 1961.

Lewis and others v AG [2013] (1) JLR 325.

X v Attorney General [2014] (2) JLR 384.

Attorney General v DS [2009] JRC 213.

Attorney General v G [2009] JRC 148.

Attorney General v U [2011] JLR 812.

Attorney General v T [2016] JRC 001.

Morgan v AG [2001] JLR 225.

Dykes v AG [1999] JLR 146.

Galante v AG [1997] JLR N-14b.

AG v Sampson [1965] JJ 495.

R v JW [2000] 1 Cr App R (S) 234.

AG’s Reference No 127 of 2004 (David Michael Briggs) [2005] 2 Cr App R (S) 74.

Norris v AG [2014] (1) JLR Note 23.

AG v McIntyre 1999/11.

Harris v AG [2001] JLR 362.

Archbold, Criminal Pleading Evidence and Practice (2016 edition).

H v AG [2013] (1) JLR 210.

Attorney General's Reference (No. 53 of 2013) (R. v Wilson) [2014] 2 Cr. App. R. (S.) 1.

Appeal (Criminal) — application for leave to appeal against sentence of the Superior Number of the Royal Court passed on 17 December 2015.

This is the judgment of the Court

THE PRESIDENT:

Background

1 The Appellant applies for leave to appeal in respect of a total sentence of 6 years' imprisonment imposed by the Royal Court after guilty pleas were entered in respect of various offences of criminal sexual activity. Each of the offences took place within a period of some 8 months or so, between the Appellant and the same female victim (“A”), who at the time of the offence was aged between 13 and 14 years. The Appellant was between 23 and 24 years. At the time the Appellant was in a relationship with A's mother, with whom he had had two children who were then under the age of 5 years. To some extent the Appellant took the place of a parent of A. The Appellant was in a position of trust in respect of A.

2 We are persuaded that some of the proposed grounds of appeal are “seriously arguable” ( Warren v Attorney General [2014] (1) JLR 383 at paragraph 37), and we grant leave to appeal. For the reasons which we shall give we have concluded that the total sentence of 6 years' imprisonment was manifestly excessive. We shall allow the appeal, substituting a total sentence of four years and six months' imprisonment.

The chronology leading up to the guilty pleas

3 A reported the offences in May 2015. The Appellant was arrested on 13 May 2015 at his parents' address and appeared in the Magistrates' Court on 15 May 2015. An application for bail was refused and he was remanded in custody. He was committed to the Royal Court on 24 July 2015. On 28 August 2015 the Appellant was indicted, whereupon he entered not guilty pleas to all counts in the Indictment, which included certain charges of rape. Dates were set for a trial to take place on 27 October 2015 with the Appellant being remanded in custody in the interim.

4 On 1 October 2015, following discussion between the Crown and the Appellant's Advocate, the Indictment was amended and, on 2 October 2015, the Appellant pleaded guilty to Counts 1, 2A, 4, 5, 6, 7 and 8 of the amended Indictment and not guilty to Count 2 (rape) and Count 3 (rape). Those pleas were acceptable to the Crown and no trial was required. The Appellant, therefore, may be treated as having pleaded guilty to Count 1 at the earliest possible time once all the charges against him had been clarified by the production of an amended Indictment. He had also pleaded guilty to the offence of unlawful sexual intercourse with a child between the ages of 13 and 14 under Count 2A at what should be accepted as the earliest possible opportunity, namely once the more serious charges under Counts 2 and 3 of rape of a child possibly under the age of 13, had, in effect, been withdrawn. The Appellant pleaded guilty to all the offences within a period of less than five months from the offences being reported.

The offences

5 The offences in respect of which the Appellant pleaded guilty and was sentenced, together with a short explanation of the relevant circumstances, were:-

Count 1

That the Appellant between 30 March 2014 and 13 May 2015 indecently assaulted A, a female child aged between the ages of 13 and 14, “by licking her vagina and digitally penetrating her vagina”.

Count 2A

That the Appellant between 30 March 2014 and 13 May 2015 on the same occasion as Count 1, had unlawful sexual intercourse with A contrary to Article 4(1) of the Loi (1895) modifiant le droit criminel (the “1895 Loi”).

The victim said that the Appellant had briefly inserted the tip of his penis into her vagina. The victim stated “it went in for a few seconds and it hurt”. She described the pain as “instant”. She said “he tried to push it in further but I didn't want to and like … kind of said stop” after which the Appellant desisted.

Count 4

That the Appellant between 1 September 2014 and 13 May 2015 procured the commission of acts of gross indecency by A “by masturbating him and performing oral sex on him”.

The Appellant had been at home, with friends in a downstairs room, and had sent the victim a message on her phone instructing her to meet him in the upstairs bathroom where the offence took place.

Count 5

That the Appellant between 1 September 2014 and 13 May 2015 on a separate occasion to count 4 procured the commission of an act of gross indecency by A “by masturbating him”.

This offence took place in a private garage.

Count 6

That the Appellant between 1 September 2014 and 13 May 2015 indecently assaulted A “by touching her naked breasts.”

This offence took place on the same occasion as Count 5.

Count 7

That the Appellant between 1 January 2015 and 13 May 2015 indecently assaulted A “by licking her vagina.”

A had been in her bedroom watching a programme on her mobile telephone whilst lying on her bed. She had not been at school that day because she had been feeling unwell in the morning. The Appellant entered her bedroom at around 4pm and after a brief conversation the offence took place.

Count 8

The particulars of the offence specified in Count 8 were that the Appellant on 7 May 2015 attempted to procure an act of gross indecency by A, a female child aged 14 years, “by masturbating him.”

6 The maximum sentence of imprisonment in respect of Count 2A is 5 years. The offences comprised in Count 1 and Counts 4–8 are punishable at common law and the penalty is at large.

The sentences

7 On 17 December 2015 the Royal Court imposed the following sentences:-

making a total of 6 years' imprisonment.

• (i) on Count 1: 3 years' imprisonment;

• (ii) on Count 2A: 3 years' imprisonment to run concurrently with the sentence imposed on Count 1;

• (iii) on Count 4: 3 years' imprisonment to run consecutively to the totality of Counts 1 and 2;

• (iv) on Count 5: 3 years' imprisonment to run concurrently with the sentence imposed on Count 4;

• (v) on Count 6: 2 years' imprisonment to run concurrently with the sentence imposed on Count 4;

• (vi) on Count 7: 3 years' imprisonment to run concurrently with the sentence imposed on count 4; and

• (vii) on Count 8: 18 months' imprisonment to run concurrently with the sentence imposed on Count 4,

8 The Royal Court also ordered that a period of ten years from the date of conviction should elapse before the Appellant was permitted to apply under Article 5(5) of the Sex Offenders (Jersey) Law 2010, to be no longer subject to the notification requirements of the Law. The Royal Court also made a restraining order pursuant to Article 10(4) of the Law for a period of nine years from the date of sentence. There is no application to appeal against those orders.

The appeal notice

9 The appeal notice sets out the grounds of appeal as follows:-

“The Court, in passing sentence, breached the totality principle in ordering that the sentences for certain counts should run consecutively, despite those counts being part of the same course of offending, despite the effect of that being to arrive at a sentence double the term passed for the most serious offence.

The sentence of 6 years' imprisonment (on a guilty plea) was manifestly excessive when considered in the light of comparable and more serious cases: in particular those provided to the Court.

Certain statements within the Crown's conclusions were misleading and prejudiced the Court against me. The Court took things into account which it should not have done in passing sentence and, conversely failed to take into account certain things which it should have done. The Crown's conclusions, which were provided to the Court, contained allegations which did not relate to any charges on the indictment and statements which should not have been put before the Court.

The Court did not provide a reasoned judgment as to why it reached the conclusions it did and why it preferred the submissions of the Crown and rejected those of my Advocate. Reading the judgment it appears as if nothing said by the defence was taken into account at all. It is also concerning that before hearing from the defence the Court gave an indication that the sentence might be even higher than the Crown's conclusions thereby giving the impression it was already set against me. In the absence of reasoned decisions I am unable to understand why the Court rejected the submissions made on my behalf.”

The Appellant's submissions

10 Advocate English on behalf of the Appellant submitted that the sentence was manifestly excessive and wrong in principle.

11 He submitted that the sentencing court wrongly took into...