Jersey Unreported Judgments

2002/172

ROYAL COURT

(Samedi Division)

 

20^th September, 2002.

 

 

The Attorney General

-v-

Rui Miguel Ganhao Ferreira

 

1 count of:

Indecent assault.

 

Age:     28.

 

Plea:    Guilty, following conviction on 13^th August, 2001, at an Assize trial.

 

Details of Offence:

The assault occurred at approximately 3 a.m.  The accused had drunk five or six pints of lager and one vodka earlier in the evening.  He entered the staff accommodation of the Moorings Hotel.  He was not an employee of the Moorings Hotel and had no reason to be there.  However, he knew the layout of the premises as he had been there on previous occasions to visit a friend of his.  He knew the victim, a 42 year old receptionist at the hotel, as an acquaintance only.  He knew which was her bedroom and also the fact that her boyfriend was not present as the accused had left him shortly before.  The accused let himself into the victim's bedroom where she was asleep.  She woke to find him on top of her.  He kissed her in a manner which she described as very aggressive and painful.  She tried to resist unsuccessfully as she was pinned down and he bit her breasts and neck.  At one state he had his hand at her throat.  She could feel that he was aroused.  He moved his hand down her body at which point she was sufficiently freed to be able to knee him in the groin.  He rolled off the bed and stood up at which point she recognised him by the light of the television which was still on.  He left the room.  The accused remained clothed throughout but the victim was wearing very little as she had gone to bed.  Compelling evidence was adduced from a number of witnesses at trial who testified as to the victim's trauma.  She had feared that she was going to be raped.  There were no physical injuries to the victim of note.  No impact statement was prepared.

The offence was aggravated by the following:

(i)             the victim was required to testify at trial and it was put to her by the accused's counsel that it was she who had initiated sexual activity.  Her distress was evident to the jury which took less than an hour to convict.  No expression of remorse was made by the accused at any stage of the proceedings;

(ii)            the attack occurred in the early hours of the morning in the victim's own bedroom;

(iii)           although he did not have to force entry, the accused had let himself into private property and indeed into the victim's room;

(iv)           the accused had been drinking.

 

Details of Mitigation:

The accused was a first offender.  Defence counsel contended that there were a number of other mitigating features such as the absence of injury to the victim.  These features might more properly be described as an absence of aggravating features rather than mitigation per se.

 

Conclusions:

3 years' imprisonment; recommendation for deportation.  (4 year starting point).

 

Sentence and Observations of Court:

The Crown's four year starting point was found to be acceptable.  Nevertheless, the Court considered there to be strong mitigating features mentioning, for example, the lack of threats, the absence of a weapon, the lack of injuries to the victim, the fact that the assailant was not in a position of trust and the absence of forced entry to the premises.  (See the above observation regarding mitigating v aggravating features).  Of course, the Court took into account the absence of prior convictions.  The Crown's conclusions were reduced somewhat and a sentence of 2½ years' imprisonment imposed.  In view of the fact that the accused had instructed his counsel not to object to the recommendation for deportation, the Court duly made that recommendation.

 

A.D. Robinson, Esq., Crown Advocate.

Advocate C.R.G. Deacon for the Defendant.

 

 

JUDGMENT

 

THE COMMISSIONER:

1.        As the Crown Advocate has quite rightly stated this was a serious case of indecent assault with a number of aggravating features.  Those of us who sat through the Assize trial where Ferreira was found guilty by a unanimous verdict of the Jury have no doubt that the complainant went through a terrifying experience, which had to be relived by her having to give evidence at trial.

2.        For a woman asleep in bed to be wakened by an unknown male pinning her down must have been a terrifying experience.  She was indecently assaulted; and her every action after she had been so assaulted was evidence, in our view, of the fear that she was in.  At trial, the Court heard independent evidence from those who were able to witness her mental condition after the assault had taken place.

3.        Even at trial it was put to the complainant on Ferreira's instructions that she had initiated the sexual activity.  Those in court saw the effect of that question on the complainant in the witness box. 

4.        There are aggravating features: the accused had been drinking heavily and, he entered private property where the complainant worked, in the very early hours of the morning.  He has shown no remorse and in fact still claims innocence. 

5.        There has been no psychological assessment of the complainant so that her present mental state, as a result of this frightening assault is not known, but in my view her distress in the witness box was apparent and genuine.

6.        As was said in A.G.-v-Hanby (20^th March, 2002) Jersey Unreported; [2002/66], sentencing in these cases is difficult.  Because the Court of Appeal has indicated that a starting point is preferable we can only say that the Crown's reasonable conclusion of 4 years as a possible starting point is acceptable.  If there are aggravating features there are also strong mitigating factors as Advocate Deacon has so clearly pointed out to us.  Ferreira has no criminal record, he is still comparatively young, there were no threats, no weapon, no clinical evidence of injury, he was not in a position of trust, he had drunk perhaps six pints and one red bull, and there was no forced entry to the premises.

7.        The Probation Officer says that the strong denial of the offence could be indicative of an increased future risk of re-offending.  We are not certain that we entirely follow the logic of that argument.  

8.        The cases cited in Mr Whelan's work "Aspects of Sentencing in the Superior Courts of Jersey" (2^nd Ed'n): pp.331-7) lead us to feel that the conclusions are possibly correct, but we are going to reduce them slightly in the light of Advocate Deacon's arguments to us.  You are sentenced to 2 years and 6 months imprisonment.  Having regard to the case A.G.-v-Mendes (25^th January, 2002) Jersey Unreported; [2002/25] and in the absence of any objection from Advocate Deacon we will recommend to the Lieutenant Governor that the accused be deported from Jersey at the conclusion of his sentence.

Authorities

Whelan Aspects of Sentencing in the Superior Courts of Jersey (2^nd Ed'n): pp.331-7).

A.G.-v-Hanby (20^th March, 2002) Jersey Unreported; [2002/66].

A.G.-v-Mendes (25^th January, 2002) Jersey Unreported; [2002/25].