Jersey Unreported Judgments

[2009]JRC025

ROYAL COURT

(Samedi Division)

13^th February 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Breton and Le Cornu.

The Attorney General

-v-

AP

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

3 counts of:	Indecent assault.  (Counts 1, 2 and 4).
1 count of:	Procuring an act of gross indecency.  (Count 3).

Age:  75.

Plea: Guilty.

Details of Offence:

The defendant perpetrated the above offences on his step-son between 1970 and 1975.  The offences took place in the family home whilst the victim was aged between 11 and 15.  On numerous occasions the defendant performed oral sex on the victim, masturbated him, and performed simulated intercourse by lying on top of him and rubbing his penis in between his legs until he ejaculated over his bare stomach.  The defendant also forced the victim to masturbate him.  The victim was threatened with violence if he told anyone.  Often the abuse took place while the victim's mother was downstairs.

The abuse was a gross breach of trust that happened over a lengthy period of time.  It was accompanied by violence and threats of violence, and although historic, continues to have profound emotional and psychological consequences on the victim.

Details of Mitigation:

The guilty pleas spared the victim having to give evidence at trial; previous good character, his poor medical condition, the effect of a prison sentence on a man of his age and his dependant wife.

Previous Convictions:

None.

Conclusions:

Count 1:	3½ years' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 3:	3½ years' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.

Total:  3½ years' imprisonment.

Deportation not sought.

Sentence and Observations of Court:

The Court stated, inter alia that the abuse was invasive, frequent, unpleasant, mental and physical.  The nature and context of the offending was an utter breach of trust and an abuse of his position.  The harm was irreparable.  As against this the defendant was of previous good character and had led an industrious life.  He had spared the victim the ordeal of having to give evidence in Court.  However, the defendant's age, medical condition, and other circumstances were not at all exceptional.

Offences of this nature will not be tolerated and demand stringent punishment. 

Conclusions granted.

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

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant sexually abused his stepson when his stepson was between the ages of 11 and 15.  The abuse was frequent and carried out in the family home.  It was accompanied by threats of violence or violence and was both physical and emotional. 

2.        The stepson's statement was read out to the Court but the abuse was, by way of summary, invasive, frequent and unpleasant.  It included repeated oral sex upon the stepson, forced masturbation of the defendant by his stepson and simulated sex leading the defendant to ejaculate over his young stepson which left the stepson scared stiff. 

3.        The one place where a child should be safe is at home in the care of his or her parents.  The defendant was trusted with the care and protection of his stepson but in utter breach of that trust he used his privileged position as a stepfather to abuse his stepson for his own sexual gratification. 

4.        The profound and long-lasting effects of such abuse are clear from the Impact Statement, quoting from paragraph 22 of that Statement:-

"From [the stepson's] account the early abuse he experienced as a child has affected and pervaded every aspect of his life to date.  As a young man he managed to keep his early experiences locked down and became preoccupied with trying to prove that he was not weak which meant that he was unrelenting with himself and probably pushed himself to an unhealthy degree.  In the last 13 years he has been suffering from complex post traumatic stress disorder and depression arising out of his ordeal from which he has not yet recovered."

The harm done therefore to the victim is irreparable.

5.        By way of mitigation, the defendant has no previous convictions and indeed has led an otherwise industrious and law-abiding life.  He has pleaded guilty thus sparing his stepson the ordeal of giving evidence before a Jury.  The defendant is 75 and it is clear that this must be taken into account.  Mr Haines submits that the Crown have given insufficient weight to the defendant's age.  We disagree.  We have no doubt that if the defendant had been a younger man he would be facing a substantially greater sentence, and in our view the Crown's conclusions clearly include a substantial reduction for the defendant's age. 

6.        We have noted the defendant's medical reports.  Mr Haines accepted that the defendant cannot be described, as was the defendant in the case of Brick quoted in Thomas, Principles of Sentencing, as seriously ill with a limited expectation of life, warranting a further reduction in his sentence by act of mercy.  We appreciate the terrible effect a custodial sentence will have on the defendant's wife but tragically, this is often the consequence of such serious offences.  We have read carefully the Social Enquiry Report, the letter from the defendant's son and from his wife, and indeed his own letter and the other references. 

7.        At the end of the day society abhors conduct of this kind which deserves condign punishment, not only to deter the defendant from repeating such offences but also to deter others from following his example.  Society, through the Courts, requires it to be made clear that abuse of innocent children will simply not be tolerated.  Having considered all the mitigation available to the defendant and in particular his age, we have no doubt that the conclusions of the Crown are correct.

8.        On count 1; 3½ years' imprisonment, count 2; 3½ years' imprisonment, concurrent, count 3; 3½ years' imprisonment, concurrent, on count 4; 3½ years' imprisonment, concurrent which makes a total sentence of 3½ years' imprisonment.

Authorities

Thomas, Principles of Sentencing, 2^nd ed. (1979).

Whelan Aspects of Sentencing in the Superior Court of Jersey.

Dykes-v-AG [1999] JLR 146.

AG-v-Turner 2000/143.

AG-v-Brewster 2001/3.

AG-v-Freeman [2003] JRC 028.