Jersey Unreported Judgments

 [2003]JRC141

ROYAL COURT

(Samedi Division)

 

4^th August 2003

 

 

The Attorney General

-v-

Paul Ross Kearns.

 

Sentencing by the Superior Number of the Royal Court, to which the defendant, Paul Ross Kearns, was remanded by the Inferior Number, on 2^nd May, 2003, following a change of plea to guilty to:

 

 

1 count of:

Rape (count 1)

[On 2^nd May, 2003, the defendant pleaded not guilty to counts 2 and 3 of the indictment, which pleas were accepted by the Crown.]

 

Age:     24.

 

Plea:    Guilty.

 

Details of Offence:

For the purposes of the sentencing, the Crown accepted Kearns' version of events.  The victim was a 16 year old virgin who, prior to the incident, had consumed a considerable amount of alcohol in the company of a group of her friends aged 13.  Prior to the incident she had also had an argument with a 13 year old boy which resulted in her being distressed and "weepy" leading up to the incident.  The victim and her 13 year old friend were seen to approach Kearns who was sitting on a bench waiting to catch a coach to a nightclub at St.Ouen.  The 3 individuals engaged in conversation and after a short while the 13 year old friend left leaving the victim in the company of Kearns.  The couple were then seen to engage in kissing and were recorded on CCTV leaving Liberation Square heading in the direction of the Steam Clock.

Once in the location of the Steam Clock the couple continued to kiss each other and the victim carried out an act of oral sex on Kearns and he masturbated her and digitally penetrated her vagina.  This sexual contact was consensual and some items of clothing may have been loosened or possibly removed.  Because the couple were conscious of being observed by passer-bys they moved to another location for a brief while where they continued to kiss.  They then moved on to a third location on the New North Quay where further consensual sexual activity took place.  Items of clothing were removed.  Kearns engaged in oral sex with the victim and she with him.

In the heat of the moment Kearns inserted his penis briefly, but not fully, into the victim's vagina being reckless as to whether she was consenting or not to this act.  When she objected, he withdrew and, with his hand, ejaculated onto the ground.  He then got up, leaving the victim, telling her he was going to the toilet.  He returned to Liberation Square and got on his coach to the nightclub.

The victim was unable to find her pants and she put on her track suit bottoms back to front.  She also lost her mobile phone.  She returned to Liberation Square in a distressed state and made contact with her friend.  Her friend returned to Liberation Square and the victim made recent complaint of rape not only to friend but also to two 20 year old females who overheard the hysterical outbursts of the victim.  The Police were summoned and recent complaint was also made by the victim to the Officers who attended. 

The victim was examined by a Police Surgeon and it was noted that she was under the influence of alcohol.  The victim could not remember the precise details of the incident.  A number of bruising and abrasions and red marks were noted during the course of the medical examination.  However, the victim's hymen was still in tact and no internal injuries were noted.  It was the Doctor's opinion that full penetration was unlikely.  Internal swabs were taken and these subsequently confirmed the presence of sperm heads.  DNA testing identified the sperm as belonging to Kearns.

Approximately 2 weeks after the incident Kearns was located and requested to attend Police Headquarters and was interviewed under caution.  During the initial interview he denied any contact with the victim or ever being at Liberation Square on the night in question.  He was then arrested and further interviewed.  He admitted that he had lied in his first interview and that he had had contact with the victim who had not previously been known to him.  Kearns contended that there had been sexual contact which had been consensual, the victim having told him that she was 18 and at University.  He maintained the denial, however, that there had been any sexual intercourse.

A third interview was conducted in which the inconsistencies in Kearns' version of events in contrast to the recollections, albeit vague, of the victim were put to him.  He was charged with rape and the subsequent charges and pleaded not guilty before the Magistrate's Court and on indictment.  An application for change of plea was made prior to trial which change of plea was accepted by the Crown.

The Crown referred to the guide-line case of R -v- Billam [1986] 1 WLR 349, as amended and updated by the English Court of Appeal in the case of R -v- Milberry [2003] 1 WLR 546.  The Crown took as a starting point, as defined in Billam etc., 8 years' imprisonment on the basis that the offence was aggravated by the fact that the victim was a child and by the fact that she had suffered and continued to suffer psychological problems in consequence of the offence.  A Victim Impact Statement was produced, together with an Addendum of the Report following comments and criticism raised by the Defence of the original report.  

 

Details of Mitigation:

The Crown having fixed an 8 year starting point, then allowed mitigation for the guilty plea which, albeit late, was a significant factor and had avoided the victim and other young witnesses having to attend trial.  He was entitled to credit for his co-operation, having attended voluntarily and having answered all the questions during the interview.  He did not have the benefit of good character but his criminal record did not contain any previous sexual offences.  At the time of the offence he was aged 23 (24 at date of sentence) and was therefore entitled to residual credit for his youth.

The Defence contended that sentencing of rape cases was always difficult.  It was the Defence's case that the correct starting point was one of 5 years' imprisonment and that the aggravating factors referred to by the Crown did not apply.  The Defence agreed that an appropriate reduction for mitigation was one of 3 years.  The facts upon which Kearns was to be sentenced were agreed by the Defence.  The Defence agreed with the Court that the 3 matters that the Court had to consider were:

1.     The degree of harm to the victim.

2.     The level of culpability of the accused.

3.     The level of risk to society posed by the accused.

The Defence challenged the description of the victim as a "child" given that she was aged 16 and the English provision referred to a child as being under the age of 14.  The Defence contended that the victim's age was not an aggravating factor.  The Defence was also critical of the victim Impact Statement and contended that the psychological difficulties experienced by the victim were not sufficient to justify a 60% increase in sentence.  Something substantially more was required to justify an 8 year starting point.  There was a low risk of the accused re-offending.  A letter from the accused and 2 character references were handed up in support of the remorse and general character of Kearns.  The Defence therefore contended that the correct starting point was one of 5 years which, after reduction of 3 years for mitigation, produced a 2 year sentence.  Such a sentence was in the interest of justice, the victim, society and Kearns.

 

Previous Convictions:

A number of previous offences for dishonesty, violence, public order and motoring offences.  As noted, there were no previous sexual offences.

 

Conclusions:

Count 1:

5 years imprisonment.

 

 

Sentence and Observations of Court:

Count 1:

2 years imprisonment.

The accused had pleaded guilty to one of the most serious offences.  It was the duty of the Court to consider individual cases as a whole and it was their duty to consider 3 dimensions as considered by the Court of Appeal in R -v- Milberry:

1.     The degree of harm to the victim.

2.     The level of culpability of the accused.

3.     The level of risk to society posed by the accused.

The detailed facts had been outlined by the Crown.  Whilst this was a case of stranger rape there were some unusual features.  The victim and her friend had approached Kearns and the victim had consumed a considerable amount of alcohol.  There was consensual sexual activity including oral sex and digital penetration.  The couple had moved to a number of locations voluntarily.  There had been no violence at any time.  Rape had occurred but Kearns had removed his penis when the victim had asked him to stop.  The victim was a virgin at the time and remained a virgin after the offence as the hymen remained intact.  The rape had occurred during the course of sexual activity.  The Court considered the cases of Billam and Milberry with particular care.  The Crown Advocate had placed much emphasis on the fact that the victim was a child but in the Court's view this carried less significance.  Whilst a "child" was a person under the age of majority, the victim was not an entirely sexual innocent as for example was a six year old child.  The Court had no sympathy for Kearns.  He had however pleaded guilty and therefore saved the victim the stress of a trial which would no doubt have aggravated her distress.  The Court read the letters handed up.  Kearns was cowardly and callous.  The Court took as its starting point a sentence of 5 years' imprisonment which was reduced by 3 years for the mitigation.   

 

J.C .Gollop. Esq., Crown Advocate.

Advocate W. Grace for the Defendant.

 

 

JUDGMENT

 

 

THE commissioner:

1.        The accused has pleaded guilty to the most serious offence of rape but we have a duty in law to consider an individual case as a whole, taking into account the three dimensions accepted by the Court of Appeal in R -v- Milberry [2003] 1 WLR 546.  These dimensions are the degree of harm to the victim, the level of culpability of the offender and the level of risk posed by the offender to society.  The facts have been most clearly outlined by Crown Advocate Gollop; we do not need to repeat them here.

2.        Though this was a 'stranger' rape, there are some unusual features to it.  Unusually, the complainant and a friend initially approached the accused.  The complainant had drunk a substantial amount of alcohol.  Mention was made of alcohol drunk at the friend's mother's party and then, later, apparently most of a bottle of whiskey to which an amount, ' a bit' as mentioned by the Crown Advocate, of vodka had been added.  There was consensual kissing and other sexual intimacy between the two of them.  This included oral sex, masturbation of the complainant and digitally penetrating her vagina.  The two moved from the Weighbridge area, quite voluntarily, to the area of the Steam Clock and then, quite voluntarily, to a much darker and less frequented area behind the Sailor's Rest café and finally to an area on the New North Quay where they lay down.  We say that because there was no violence at any time.  It was here that the rape occurred.  Kearns had removed the complainant's lower clothing and penetrated her until she told him to stop.  She was and still remains a virgin and she was menstruating at the time.  Her hymen remained intact.  There was in fact oral sex taking place when he withdrew, masturbated himself to the point of ejaculation and then left the complainant, walking away from her before he took the coach to the Watersplash nightclub.  The rape had occurred during the course of the sexual activity.

3.        We have to consider the cases with considerable care and particularly R -v- Billam [1986] 1 WLR 349, which has been, of course, approved by the Jersey Court of Appeal and the recent case of  R -v- Milberry [2003] 1 WLR 546.  Crown Advocate Gollop has laid much emphasis on the fact that this was a child and that there were aggravating factors.  The child argument is always important.  But in this case and with these particular facts it is, in our view, less significant.  We are well aware that the Age of Majority (Jersey) Law (1999) amends the Children's Law so that child means a person under the age of majority.  However, the complainant was not, in our view, an entire sexual innocent, as for instance a six year old child would have been. 

4.        Of course we have no sympathy with the accused and the way that he behaved.  But there was no violence, there was consensual sex and although Kearns has a record, he has nothing for sexual offences and his plea of guilty has saved the complainant a trial which would undoubtedly have aggravated the distress that she undoubtedly feels and which has been well documented.  We have of course read the letters submitted in his support.

5.        Kearns, what you did was cowardly and callous and I think you recognise that.  Nevertheless we are going to start at 5 years and after careful consideration we will allow you three years by way of mitigation.  You are therefore sentenced to two years imprisonment.   

Authorities

Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2^nd d'n): pp.19-21; 290-2; 299-309.

R -v- Milberry [2003] 1 WLR 546.

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

R -v- Greaves [1999] 1 Cr. App. R. (S) 319.

AG -v- Lomas (3^rd May 2001) Jersey Unreported; [2001/94]

Conquer -v- AG (4^th April 2002) Jersey Unreported; [2002/73]

Gregory -v- AG [1997] JLR1.