Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault.

[2017]JRC213

Royal Court

(Samedi)

15 December 2017

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Grime and Christensen.

The Attorney General

-v-

R

Sentencing by the Inferior Number of the Royal Court, following guilty plea to the following charges:

2 counts of:

Indecent assault (Counts 1 and 3).

Age:  46.

Plea: Guilty.

Details of Offence:

The defendant pleaded guilty to two counts of indecent assault of a nine year old girl. 

The first count to which the defendant pleaded, Count 1, related to the defendant kissing the complainant on her mouth in August 2016.  Shortly thereafter, the complainant complained to her mother who contacted the police who interviewed the complainant. 

Count 3 related to an incident a few days before, in August 2016, when the complainant was seen to be washing the defendant's car. 

A neighbour saw the defendant give the complainant a washer gun to use to clean the car.  He then saw the defendant move behind the complainant to show her how to use the washer gun.  The defendant was standing very close behind the complainant with his arms around the front of her.  This meant the front of his body was placed against the back of hers.  The neighbour could see that the defendant was holding the complainant tightly, in a hold which lasted a few minutes.  The neighbour noticed the way the defendant was holding the complainant and thought that it looked like the defendant was rubbing up against the complainant, he felt that this was done for his [the defendant's] own sexual gratification.  The neighbour felt uncomfortable with what he had seen and described it as something he might do with his partner, but not his daughter. 

There was an element of grooming as the defendant was noticed to favour the complainant over a significant period and give her some treats, arrange for her to be alone with him in the house and take her for walks with the defendant's dog.

Details of Mitigation:

Guilty pleas, no relevant previous convictions, treated as of previous good character.

Previous Convictions:

One previous conviction before the Magistrate's Court for three motoring offences in 1993.

Conclusions:

Count 1:	15 months' imprisonment.
Count 3:	15 months' imprisonment, concurrent.

Total: 15 months' imprisonment.

Order sought under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 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. 

Restrictive Order sought to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:

i)              That the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16 years.

a.     He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

b.     The adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling;

ii)             That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

iii)            That the defendant must not approach, follow or have any contact, direct or indirect, with the complainant;

iv)            That if the defendant finds himself in contact with the complainant he must remove himself from that situation as soon as reasonably possible; and

v)             That contact with the defendant's son is to be supervised

vi)            That the defendant produce to a police officer forthwith on request for examination, at any time, any computer or device which may access the internet, or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence; and

vii)           That the defendant is prohibited from owning of having in his possession or having access to any device capable of accessing the internet unless:

a.     It has the capacity to retain and display the history of the internet use; and

b.     The defendant ensures that such history is not deleted.

Sentence and Observations of Court:

Count 1:	180 hours' Community Service Order, equivalent to 12 months' imprisonment together with a 2 year Probation Order.
Count 3:	180 hours' Community Service Order, equivalent to 12 months' imprisonment, together with a 2 year Probation Order, concurrent.

Total: 180 hours' Community Service Order and a 2 year Probation Order.

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 5 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. 

Restrictive Order made to commence from date of sentence for a period of 5 years under Article 10(4) with the following conditions:

viii)          That the defendant is prohibited from being alone with any female he knows or believes to be under the age of 16 years.

a.     He shall be considered to be alone if there is not present an adult over the age of 21 who is aware of his offending history;

b.     The adult over the age of 21 who is aware of his convictions must be in the same room, it shall not be sufficient for the adult to be merely in the same dwelling;

ix)            That in circumstances where the defendant finds himself alone with any females under the age of 16 years, accidently or inadvertently, he has a positive duty to remove himself from that situation as soon as reasonably possible;

x)             That the defendant must not approach, follow or have any contact, direct or indirect, with the complainant;

xi)            That if the defendant finds himself in contact with the complainant he must remove himself from that situation as soon as reasonably possible; and

xii)           That the defendant produce to a police officer forthwith on request for examination, at any time, any computer or device which may access the internet, or any device which can store images electronically, which belongs to him or is in his possession, it being noted that such a request may be made anywhere, including by the police attending at the defendant's place of residence; and

xiii)          That the defendant is prohibited from owning of having in his possession or having access to any device capable of accessing the internet unless:

a.     It has the capacity to retain and display the history of the internet use; and

b.     The defendant ensures that such history is not deleted.

Her Majesty's Attorney General for the Crown.

Advocate J. C. Turnbull for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced for two counts of indecent assault on a 9 year old girl.  The Crown has explained the circumstances and the basis of your plea and that is, of course, the basis on which we will proceed. 

2.        We have reviewed with care the documentation in this case including the social enquiry report and the psychological report and they are similar in their analysis of your circumstances and condition.  Of concern is the fact that you are blaming in part the child herself for what has occurred.  We have read and considered the victim impact statement and for us there is the element of breach of trust and there is some suggestion that you were grooming this girl and that in some ways these things would have got worse.  You were making, in some respects, a game of the abuse that you were perpetrating.

3.        You have the mitigation of your guilty plea and that is very important in cases of this nature because it means that the victims do not have to give evidence with all of the trauma and upset that that produces.  You have no previous convictions of any relevance. 

4.        We deal firstly with the provisions under the Sexual Offenders (Jersey) Law 2010 and we agree that there should be a period of 5 years before you can apply to be removed from the reporting restrictions and we make that order.

5.        Turning to the restrictive orders requested we believe that it is appropriate and proportionate to make the orders sought by the Crown save with one exception.  Accordingly we make the orders in that:

(i)        you are prohibited from being alone with any female you know or believe to be under the age of 16 years;

(a)       that you should be considered to be alone if there is not present an adult over the age of 21 who is aware of your offending history;

(b)       the adult over the age of 21 who is aware of your convictions must be in the same room, it is not sufficient for the adult to be merely in the same dwelling;

(ii)       that in circumstances where you find yourself alone with any females under the age of 16 years, accidently of inadvertently, you have a positive duty to remove yourself from that situation as soon as reasonably possible;

(iii)      you must not approach, follow or have any contact, direct or indirect, with the complainant;

(iv)      If you find yourself in contact with the complainant you must remove yourself from that situation as soon as reasonably possible.

(v)       That you must produce to a police officer forthwith on request for examination, at any time, any computer or device which may access the internet, or any device which can store images electronically, which belongs to you or is in your possession, it being noted that such a request may be made anywhere, including by the police attending at your place of residence; and

(vi)      That you are prohibited from owning or having in your possession or having access to any device capable of accessing the internet unless:

(a)       It has the capacity to retain and display the history of the internet use; and

(b)       You ensure that such history is not deleted.

6.        We have been asked by the Crown to add an additional requirement that contact with your son must be supervised.  We do not think it is appropriate for us to add that to the restrictions.  That, for us, is a matter for the Children's Service and a matter for the Family Court sitting, as your counsel has suggested, with the benefit of full reports.  There is no evidence on the papers before us to suggest that you have an unhealthy interest in young boys or that you have any predisposition to injure members of your family.  That is a matter that, if it is to be considered at all, it should be considered within the context of the proceedings specifically for that purpose and, as I say, by the Children's Service.  So we not add that restriction.

7.        We turn now to the matter of sentence which we have considered very carefully.  What you have done is serious.  It is right that you were charged and are before us today but, it must be said that these things, mercifully, are towards the lower end of the scale of seriousness of such cases.  We have considered whether or not we can, as invited by your counsel, meet this matter with a non-custodial sentence. 

8.        In our view we are at a turning point where, with the appropriate treatment and assistance, you can change the shape of your life and move away from what is a dangerous trajectory that you are on.  Accordingly we do think the public interest, as well as the appropriate disposal of this case, enable us to go to a non-custodial sentence. 

9.        What that means is that we are imposing a probation order of 2 years in duration with a direction to you that you must follow all of the directions of the Probation Service and you must take all and any courses and complete them as directed by that service with a view to addressing the situation in which you find yourself and the current offending.  There must, of course, be a punitive element as well to mark the seriousness of what you have done and we are going to impose a community service alternative to 12 months' imprisonment, which we believe to have been the right sentence in other respects and we therefore order that you shall carry out 180 hours' community service. 

Authorities

Sexual Offenders (Jersey) Law 2010.

AG-v-Da Silva [2016] JRC 238.

AG-v-Ropers [2010] JRC 219.

AG-v-Holland [2008] JRC 061.

AG-v-Simmonds [2007] JRC 019.

AG-v-Le Geyt [2007] JRC 008.

AG-v-Robins [2003] JRC 234.