Jersey Unreported Judgments

[2007]JRC046

ROYAL COURT

(Samedi Division)

20^th February 2007

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Veulle, Tibbo, Allo, King, Le Cornu and Morgan.

The Attorney General

-v-

David John Powell

Sentencing by the Superior Number of the Royal Court, on guilty pleas to:

2 counts of:	Indecent assault.  (Counts 1 and 2).
1 count of:	Procuring an act of gross indecency.  (Court 3).
1 count of:	Attempted sodomy (Count 4).
1 count of:	Possession of indecent photographs, contrary to Article 2 (1) (b) of the Protection of Children (Jersey) Law, 1994.  (Count 5).
1 count of:	Distribution of indecent photographs, contrary to Article 2 (1) (c) of the Protection of Children (Jersey) Law, 1994.  (Count 6).
1 count of:	Possession of a controlled drug contrary to Article 6 (1) of the Misuse of Drugs (Jersey) Law, 1978.  (Count 7).

Age:  42

Plea: Guilty.

Details of Offence:

On 25^th May 2006, the victim's mother relayed to Social Services various concerns that she had regarding her 14 year old son.  On 21^st July, 2006, the victim agreed to be interviewed on video by Family Protection Team officers.

The victim stated he had first met Powell in the gent's toilets at Snow Hill in 2004 when he was 13 years of age.  He said that he had then gone into a cubicle with Powell, where mutual masturbation had occurred.  The victim said that for the next three weeks he would meet Powell three to four times a week where similar acts would occur within public toilets in St. Helier.  There was then no contact between the two of them for some time.  (Count 1).

The victim said that his "relationship" with Powell had subsequently rekindled and that in addition to further mutual masturbation, the two had engaged in mutual oral sex on numerous occasions.  (Counts 2 and 3).

He said that there had also been an episode where Powell had attempted anal intercourse with him at the home address of Powell.  (Count 4).

During this latter period the victim said that he was asked to send photographs and video clips of himself to Powell via his mobile telephone, which he had done.  These would often show the victim masturbating or urinating, or show the victim's bottom.  The victim estimated that 50 or 60 pictures of this nature were sent out of approximately 100 pictures in total.  (Count 5).

Several text messages evidence the fact that Powell forwarded images that he had received form the victim to another man, showing the victim posing erotically in a pair of Speedo swimming trunks.  (Count 6).

Finally, during a search of Powell's home address two small lumps of cannabis resin weighing a total of 2.29 grams were seized.  (Count 7).

Aggravating factors: substantial age gap between Powell and victim, breach of a "particular trust", Powell often drunk during the abuse, reoffended with same victim after passing of some time, topped up the credit on victim's mobile telephone and on occasion gave him money.

Details of Mitigation:

Guilty plea, never claimed welfare, became alcoholic after friend's suicide, lived rough or years but then had flat for 2 years.  Has lost work and accommodation following offences.

Previous Convictions:

27 previous convictions for 47 offences (none of a sexual nature but 2 are drug related).

Conclusions:

Count 1:	21 months' imprisonment.
Count 2:	2½ years' imprisonment, concurrent.
Count 3:	2½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent (attempt on a single occasion).
Count 5:	3 months' imprisonment, consecutive.
Count 6:	5 months' imprisonment, consecutive.
Count 7:	1 month's imprisonment, consecutive.

Total 4 years' imprisonment.

Sentence and Observations of Court:

Count 1:	21 months' imprisonment, concurrent.
Count 2:	2½ years' imprisonment, concurrent.
Count 3:	2½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent, (attempt on a single occasion).
Count 5:	2 months' imprisonment, concurrent.
Count 6:	3 months' imprisonment, concurrent.
Count 7:	1 month's imprisonment, concurrent.

Total of 3½ years' imprisonment, concurrent.

Forfeiture and destruction of drugs.

C. M. M. Yates, Esq., Crown Advocate.

Advocate D. J. Hopwood for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You met the 13 year old victim in a gent's toilet and immediately indecently assaulted him by engaging in mutual masturbation.  This continued on a regular basis for some three weeks or so.  Some time later when the victim was 14 you met him again and, over a period of a few months or so, you and he regularly engaged in mutual masturbation and oral sex. 

2.        You asked the victim to send you indecent pictures of himself on his mobile telephone.  This he did and you passed some of these on to Romeril who you knew was also having a sexual relationship with the victim.  On one occasion you attempted sodomy with the victim.

3.        In mitigation you pleaded guilty, and therefore saved the victim from giving evidence.  You have no previous convictions for sexual assaults although you do have previous convictions.  You have a good employment record and we have read carefully the contents of the various reports.

4.        Mr Hopwood urges that this is a case which does not have some of the features regularly found in cases of sexual assaults of children.  There was no grooming in this case, you were not in a position of trust towards the boy, there was no abuse in the home or anything of that nature so he was free to stop the relationship at any time, and the victim was a fully consenting boy even though aged 13 and then 14 at the time.

5.        We agree that these points are all correct.  We accept that this is not one of those cases where very young children are sexually abused by those whom they trust and who ought to be looking after them.

6.        It is true, furthermore, that the victim was 13 or 14 and he willingly consented to all that went on.  But the fact remains that you were in your forties and the law is designed to protect children from themselves if necessary. 

7.        Mr Hopwood has also placed reliance on the case of R -v- Lee [1998] 2 Cr. App. R. (S) 272, an English case, but we have to say that we find it quite hard to follow the decision in that case and we certainly regard it as having been unduly lenient.

8.        We agree with Mr Hopwood that we must stand back and look at the totality for what you did.  Given all the various circumstances I have described we agree that the total sentence for all of the conduct should be reduced to 3½ years.

9.        We propose to do that by making the sentences for the cannabis and for the telephone images concurrent.  We would add that we are also going to make a slight reduction on the individual sentences for the telephone images because we do think that there is a distinction between asking the boy to send images voluntarily of himself and the more normal situation where young children are forced or persuaded to pose for others, often for commercial purposes.

10.      So the individual sentences are as follows, on Count 1, 21 months, on Count 2, 2½ years, on Count 3, 2½ years, on Count 4, 3½ years, on Count 5, 2 months, on Count 6, 3 months, on Count 7, 1 month.  All of the sentences to be concurrent, with the result that the total sentence is one of 3½ years' imprisonment, and we order the forfeiture and destruction of the drugs.

Authorities

R -v- Lee [1998] 2 Cr. App. R. (S) 272.