The Attorney General v F

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Marett-Crosby,Olsen,Ramsden,Sparrow,Thomas
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] JRC 109A
• Date: 24 June 2016

[2016] JRC 109A

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Marett-Crosby, Olsen, Ramsden, Sparrow and Thomas

The Attorney General

and

F

S. C. Thomas, Esq., Crown Advocate.

Advocate M. L. Preston for the Defendant.

Authorities

AG v F [2016] JRC 105 .

Brewster v AG 2001/130 .

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

J v AG [2016] JCA 090 .

Harrison v AG [2004] JLR 111 .

AG v Noel [2003] JRC 027 .

AG v Freeman [2003] JRC 028 .

AG v BR [2006] JRC 155 .

AG v L [2007] JRC 029 .

AG v Foster [2007] JRC 201 .

AG v G [2009] JRC 148 .

AG v Donnelly [2009] JRC 170 .

AG v X [2010] JRC 111 .

AG v T [2016] JRC 001 .

Sex Offender (Jersey) Law 2010.

Superior Number Sentencing — reasons relating to sentence.

THE COMMISSIONER:

1 On 13 ^th June, 2016, the Superior Number of the Royal Court sentenced the defendant to a total of 5 years and 4 months' imprisonment, following his conviction by jury trial of four counts of indecent assault, ( AG v F [2016] JRC 105), which occurred between 1996 and 2001 upon children in the home he was sharing with their mother.

2 There are two victims. The first was aged between 3 and 7 years when the defendant would come into her room at bedtime and digitally penetrate her. The prosecution's case was that this was a course of conduct which occurred regularly over the period from 1996 – 2001 involving digital penetration with one finger (Counts 1 and 2) and progressing to the use of two fingers on one occasion (Count 3).

3 The victim told the jury that this conduct became normal practice and she would feel neglected if it didn't happen at bedtime. The defendant told her that this was their secret and so she did not tell anyone. In the prosecution's submission, the defendant's abuse gave rise to incredibly mixed and confused feelings in the victim. She explained to the jury that she loved the defendant, otherwise he would not have been able to do what he did to her.

4 The second victim, an older half-sister, was aged between 13 and 14 when on one occasion the defendant came into her room at night. This occurred sometime between 1999 and 2001 (Count 11). He started kissing her lightly on the cheek, moving down to her neck. His chest was on top of hers, which she described as “heavy” and “restricting”. The defendant then moved the bed clothes from her top half and cupped her left leg behind her knee. At this point the mother came into the room. The defendant reacted by going on to the offensive verbally with the mother.

5 This incident was reported to the police relatively soon thereafter, in 2002, when the second victim gave an ABE interview and the defendant was also interviewed. Following a police investigation, a decision was made not to prosecute the defendant, and he was informed of that decision. The police did not interview any of the other children, thus, in the view of the first victim, missing an opportunity for the abuse suffered by her from coming to light at that stage.

6 As it was, the first victim first disclosed the abuse she alleged she had suffered to her mother in 2008 (long after the mother and the defendant had separated and when she and the children were living in the UK), but it was not until 2012 that the first victim felt able to give an ABE interview to the police in England.

7 The defendant was interviewed in April 2013. He dismissed the allegations of the first victim as rubbish. Accepting that he went into the second victim's room on this one occasion for entirely innocent reasons, he denied any sexual assault.

8 The defendant was not brought before the Magistrate's Court until 22 ^nd July, 2015, over 2 years later and he maintained these denials. The matter came before the jury on 18 ^th April, 2016, and before whom the two victims and the mother had to give evidence and be subjected to cross-examination. It was clear that all three witnesses found the experience very intrusive and distressing.

9 The defendant did not give evidence. The defence put forward on his behalf was not that the two victims had colluded with each other to give false evidence, but that their mother was a greedy and vengeful person, and had somehow put the idea into her children's minds that they had been abused.

10 There were 12 counts in total before the jury, the defendant being acquitted in respect of 8 of them and convicted in respect of 4, as set out above.

11 The defendant has continued to maintain his innocence and there is no question, therefore, of remorse on his part and, partly because of this, he was assessed as posing a raised risk of sexual re-conviction. His profile appears within the moderate risk band.

12 As Crown Advocate Thomas pointed out, it has long been recognised that offences of this kind are not readily susceptible to a guidance approach (see Brewster v The Attorney General 2001/130 and Whelan on Aspects of Sentencing in the Superior Court of Jersey (third edition) of at pages 447 – 449).

13 In the very recent case of J v AG [2016] JCA 090, the Court of Appeal reiterated a particular thrust of the Court of Appeal decision in Harrison v AG [2004] JLR 111 that:-

“Whilst not seeking to dictate the procedure to be followed by the Royal Court, it was desirable for the Royal Court to consider the use of a 2 stage process in all cases, identifying starting points and providing clear reasons for imposing the sentences which were imposed. Procedural fairness in a sentencing context required the inclusion of a sufficient explanation of the basic reasons which led the Court to impose the final sentence, taking into account all the circumstances of the case (paragraph 23)”

14 The Court of Appeal also said this at paragraph 37:-

“37 Our conclusion that the sentence was manifestly excessive is based upon the authorities which were put before us on this appeal, as well as before the Royal Court at the sentencing hearing. We recognise that ‘every case needs to be decided on its own facts and that comparisons with other sentencing decisions need to be treated with caution’ (see X v Attorney General [2014] (2) JLR 384 at 85, per Sir Richard Collas, Bailiff of Guernsey). However, it is also important that there should be reasonable consistency in sentencing in the interests of justice and to maintain public confidence.”

15 In terms of consistency, Crown Advocate Thomas referred us to a number of cases in which, without exception, no reference to a starting point had been made:-

• (i) AG v Noel [2003] JRC 027.

  The victim was 7 to 8 years of age. The defendant was a mature adult at the time of commission of the offences. He entered guilty pleas to two counts of indecent assault. The offending behaviour consisted of digital penetration and oral sex on the victim. On one occasion the defendant rubbed his penis against the victim's vagina. On another he masturbated and ejaculated in front of the victim. He had convictions for indecent exposure. He was given considerable credit for his guilty plea at an early stage of the proceedings. It was acknowledged that the prosecution would have been unlikely to succeed if the matter had gone to trial. He was sentenced to 3 years' imprisonment on each count, to be served concurrently, which would seem indicate a possible starting point of least 4 years and 6 months. Whelan suggests that this sentence appears on the low side.

• (ii) AG v Freeman [2003] JRC 028.

  This case involved guilty pleas to two counts of indecent assault and one of procuring an act of gross indecency. The victim was 13 years of age and the defendant was the cohabitee of her mother. Her mental age was very much lower than her physical age. The defendant admitted abusing the victim on up to fifty separate occasions by playing with her private areas, including her bottom, between her legs and her breasts. He also admitted that he had showed the victim how to masturbate him, which then happened on at least six occasions. A specific count covered an incident when the defendant had touched the victim's vagina and had been caught in the act of oral sex on the victim. The defendant made full admissions to the police from the very outset of the investigation. The abuse had not involved any threats made to the victim and the evidence before the court suggested that the victim was ‘relatively unaffected’ by what had taken place. The sentence imposed was 3 years' imprisonment, concurrent on each of the three counts. This would again seem to indicate a possible starting point of at least 4 years and 6 months.

• (iii) AG v BR [2006] JRC 155.

  The 72 year old defendant pleaded guilty to six counts of indecent assault upon his granddaughter, aged between 6 and 7 years at the time of the offending. The victim was especially vulnerable having been born with cerebral palsy. The defendant would look after his granddaughter after school and whilst alone with her would touch her naked vagina by placing his finger at the entrance to her vagina. Despite initial denials on arrest, he later admitted to this on at least six occasions over a 14 month period. He denied digital penetration. The sentence imposed was three and a half years' imprisonment, concurrent on each count. This would seem to indicate a possible starting point of at least 5 years and 3 months.

• (iv) AG v L [2007] JRC 029.

  The 82 year old defendant pleaded guilty to abusing his daughter and his granddaughter when each was between the ages of 7 and 14 years. One count of indecent assault in respect of each victim covered a continuing course of abuse against each child over the course of several years and involved regular touching of the genitalia under clothing. Although digital penetration was alleged the defendant denied it and this issue was not resolved by the sentencing court. The defendant...