Jersey Unreported Judgments

Inferior Number Sentencing - indecent assault.

[2012]JRC110

Royal Court

(Samedi)

1 June 2012

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Morgan and Marett-Crosby.

The Attorney General

-v-

Karl Jason De Sousa

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

1 count of:

Indecent assault (Count 1).

Age:  26.

Plea: Guilty.

Details of Offence:

On the evening of 28^th October, 2011, the victim and her flatmate were out socialising in St Helier.  The flatmate sent a text to the defendant inviting him to join them after he had finished work.  The group visited several premises before going on to a nightclub.  The defendant and the flatmate later left the victim at the nightclub and went back to the flat that the two women shared.  The victim continued to drink at the nightclub before returning home to the flat where she fell asleep on the settee.  By her own admission she was drunk and could not recall how she got home. 

Later that night the victim awoke to find that her knickers and leggings had been pulled halfway down her legs and the defendant was penetrating her vagina with his fingers, she challenged him about what was happening but was too drunk to move and again lost consciousness. 

Later that morning when she awoke the victim found that her leggings and knickers had been partially pulled back up and a duvet put over her.  The defendant was present on the other couch in the sitting room. 

At about midday the flatmate joined the victim and the defendant in the sitting room.  The victim took her flatmate into the bathroom and related what had taken place.  The two women returned to the sitting room and the victim confronted the defendant over what he had done.  The defendant then put his head in his hands and said "Oh my God, oh my God, it was real? I thought it was just a dream".  The flatmate then told him to return the key that he had been given and to leave. 

The defendant later telephoned the flatmate and sent text messages to her in which he admitted what he had done and expressed his remorse over the incident, he also telephoned a friend and confessed what he had done, admitting that the victim had not consented and was asleep at the time. 

The victim did not report the matter to the police until the following January.  When the police arrested the defendant he handed his mobile phone to the arresting officer and informed him that all the text messages were on it.  An examination of the phone revealed a number of relevant text messages and three photographs of the victim sleeping on the sofa on the night of the incident.  The defendant was interviewed and apart from providing details relevant to his mobile telephone made no comment to the questions put to him. 

Details of Mitigation:

Early guilty plea; previous good character; co-operated with the police in relation to the mobile telephone.  Remorse shown. 

Aggravating factors:

The victim was drunk, asleep and vulnerable at the time of the assault.  The offence took place in the sanctuary of the victim's home where the defendant was a guest.  The assault was intrusive and involved digital penetration.  The defendant took photographs of the victim asleep, including a close up of her buttocks and kept them for three months.  The defendant was under the influence of alcohol.  The assault had a significant psychological effect on the victim. 

Previous Convictions:

None. 

Conclusions:

The Crown took a starting point of 4 years' imprisonment and after giving credit for the considerable mitigation available to the defendant moved for:

Count 1:

4 year starting point.  2 years' 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 of the Law. 

Compensation order sought. 

Sentence and Observations of Court:

The defendant had spent the evening drinking with the victim whom he knew.  He took advantage of the victim's comatose state for sexual advantage.  The assault was by way of photographs and digital penetration.  The Court had regard for the mitigation.  When the defendant was challenged he had made an immediate admission of guilt and expressed remorse which the Court accepted as genuine.  The defendant entered an early guilty plea and had no previous convictions.  He had a good work record and was a young man of promise.  The Court noted the content of all the references and the content of the social enquiry report but could not agree with the recommendation for a non-custodial sentence.  This was an indecent assault on a woman in the sanctity of her own home and the Court felt that the Crown's conclusions were correct. 

Count 1:

4 year starting point.  2 years' imprisonment.

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 of the Law. 

No compensation order made.  

Ms S. J. O'Donnell, Crown Advocate.

Advocate J. N. Heywood for the Defendant.

JUDGMENT

THE BAILIFF:

1.        We are going to deal first with two points.  First of all we are going to make the notification period 5 years, we think there is nothing exceptional about this and therefore we will make it for that period.  Similarly in relation to compensation we are not going to make an order, that of course does not mean we do not accept that the victim has suffered but we think it best that that is dealt with either through the criminal compensation fund or ordinary civil action.

2.        After an evening drinking Mr De Sousa you knew that the victim in this case was drunk and was asleep.  Despite this you took photographs of her and then penetrated her vagina with your fingers.  This woke her up immediately and she told you to stop whereupon you did.  In essence you took advantage of the victim's comatose state to satisfy your own sexual urges.  It has clearly affected her as victim impact statement shows. 

3.        There is powerful mitigation.  You immediately admitted what you had done the next morning and you immediately showed remorse.  We are quite satisfied from all the reports that your remorse is genuine, sometimes we have put before this Court people who say they are sorry when they are not, but we are quite satisfied that you are and that you continue to be.  You pleaded guilty at the earliest opportunity, you have no previous convictions, more than that you have a good work record, you have shown that you are a young man of promise and we accept from all the references and your letter that this is a matter which was wholly out of character and that you do indeed regret it very much.  We also accept that a prison sentence will cause hardship for your mother.  We note too that the probation service has recommended a non-custodial sentence.  All of this amounts to very powerful mitigation and your Advocate, Mr Heywood, has put it forward most persuasively on your behalf.  The Court cannot agree that the indecent assault of this nature on a woman asleep in the sanctity of her own home can be dealt with by way of a non-custodial sentence.  Indeed the sentence would be more were it not for the very powerful mitigation which your Advocate has summarised.  We have no doubt that had it not been for that mitigation the Crown's conclusions would have been more and the sentence would have been more, but we think the sentence moved for is correct. 

4.        The sentence of the Court is that you go to prison for 2 years. 

Authorities

Whelan on Aspects of Sentencing in the Superior Court of Jersey.

Sex Offenders (Jersey) Law 2010.

AG-v-Ferreira 2002/172.

AG-v-Carvalho [2007] JRC 034.