Jersey Unreported Judgments

Superior Number Sentencing - procuring an act of gross indecency - inciting an act of gross indecency.

[2013]JRC247

Royal Court

(Samedi)

6 December 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu, Morgan, Fisher, Kerley, Liston and Blampied.

The Attorney General

-v-

C

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 27^th September, 2013, following guilty pleas to the following charges:

1 count of:	Procuring an act of gross indecency (Count 1).
2 counts of:	Inciting an act of gross indecency (Count 2 and 4).
1 count of:	Attempting to procure an act of gross indecency (Count 3).

Age:  69.

Plea: Guilty.

Details of Offence:

Whilst babysitting, C procured a 7 year old to touch his penis, and incited her to rub her own vagina, which she did.  He asked her to digitally penetrate herself, which she did not do.  He told the victim that, when she was 10, he would put his "willy" inside her.  She was scared.  The offences took place in the victim's bedroom.  On leaving the room he gave her a handful of coins, telling her that if asked, she was to say that he had done so as his pockets were too full.  She told her mother two days later. 

In an ABE interview, the victim disclosed that C had also asked her to touch his penis on a prior occasion, but that she had not done so.  He had also asked her to rub her vagina, which she had done.  She said that she had done as asked as she didn't want to make C sad. 

In interview C denied the offences and suggested that someone had encouraged the girl to make false accusations. 

The offences had a serious impact on the victim and on her immediate family. 

Details of Mitigation:

The Crown

Guilty plea (entitled to full third).  The Crown submitted that C's age was not a mitigating factor as these were recent offences and he remained danger to children.  There was a high risk of reoffending and high risk of harm to the public.  Previous sex offender treatment had been unsuccessful and there was an indication that he may be unresponsive to further treatment.  His personal circumstances must come second to the need to protect victims and to mark society's condemnation of such offences. 

The Defence

No physical contact with victim.  Remorse.  Age. 

Previous Convictions:

11 previous convictions.  Those dating back to 1960s and 1970 disregarded for sentencing purposes.  2007 - three indecent assaults on teenage girls for which he received probation. 

Conclusions:

The severity of the breach of trust can hardly be overstated.  There was a clear indication that C intended to escalate the abuse. 

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

Total: 4 years' imprisonment. 

Order under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction sought.

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

i)       That the defendant be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the Order other than any contact which is inadvertent or unavoidable;

ii)      That he be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21 and who is aware of his convictions

iii)      That in circumstances where he finds himself in contact with any person names in Appendix A, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as is reasonable; and

iv)      That he be prohibited from engaging in any form of teaching, training or instruction of children under the age of 16, or from any form of care, advice, guidance or therapy of children under the age of 16, or from acting as a driver for any activities involving children under the age of 16, without the prior written approval of the Probation Service. 

Sentence and Observations of Court:

Sentences should reflect society's abhorrence.

Count 1:	3½ years' imprisonment.
Count 2:	3½ years' imprisonment, concurrent.
Count 3:	12 months' imprisonment, concurrent.
Count 4:	3½ years' imprisonment, concurrent.

Total: 3½ years' imprisonment. 

Order made under Article 5(1) of the Sex Offenders (Jersey) Law 2010 that a period of 10 years elapse before the accused is permitted to apply to no longer be subject to the notification requirements to commence from the date of conviction.

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

i)       That the defendant be prohibited from contacting or approaching, directly or indirectly, any person identified in Appendix A of the Order other than any contact which is inadvertent or unavoidable;

ii)      That he be prohibited from being alone with any persons under the age of 16 years.  The person will be considered to be alone if there is not a third person present who is over the age of 21 and who is aware of his convictions

iii)      That in circumstances where he finds himself in contact with any person names in Appendix A, or finds himself alone with a person under the age of 16, that he has a positive duty to remove himself from that situation as soon as is reasonable; and

iv)      That he be prohibited from engaging in any form of teaching, training or instruction of children under the age of 16, or from any form of care, advice, guidance or therapy of children under the age of 16, or from acting as a driver for any activities involving children under the age of 16, without the prior written approval of the Probation Service. 

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

Advocate J. M. Grace for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant is charged with two counts of inciting an act of gross indecency, one count of procuring an act of gross indecency and, following an amended charge by agreement to which a guilty plea was entered, one count of attempting to procure an act of gross indecency.  There were two occasions involved, one in June this year and one at some point in the past two years. 

2.        Advocate Grace, very correctly, points out that in these charges there was no oral sex involved, indeed, there was no indecent contact involved and there was no violence.  The extent of the offending is that the defendant procured that a young girl, age 6 or 7, should touch herself in or around her vagina and, in so far as the procuring of an act of indecency is concerned, the offence came about by the defendant asking the girl to touch his penis, which she did.  He did not have an erection. 

3.        It is clear from that summary that these indecent assaults come at the lower end of the scale of sexual offences and the Court must maintain proportionality in dealing with these offences in the context of the other offences with which, from time to time, unfortunately we have to deal.  It is also right to reflect that the damage which has been done to this particular family is very great and we can, and we do, recognise that with the deepest regret and sympathy.  The family, especially the parents, will have to work out for themselves how best to cope with what has happened so that they can move forward from now in the most positive way and, hopefully, the conclusion of the proceedings in this Court will help them because, if they move forward positively, there is a much better prospect of their children being able to move forward positively as well. 

4.        We have been invited by the Crown to treat the defendant's age, he is 69 and will be 70 in 10 days' time or so, as an aggravating factor.  We do not treat it as an aggravating factor and we do not treat it either, as the defence invited us to do, as a mitigating factor.  What is important to us is the relationship between the defendant and the victim.  That makes the commission of the offending a serious breach of trust.  A place of safety for this child, her own home, turned out not to be a place of safety and we treat this as a seriously aggravating factor aggravated by the relationship between defendant and victim.  We also treat as a seriously aggravating factor the statement to the victim that when she was 10, "I will put my willy inside you".  That is a seriously aggravating feature because it is capable of amounting to an ongoing threat which would be of concern to this young girl in the years to come. 

5.        On the other hand we do accept, first of all, that the guilty plea is of real value.  The Crown accepted before us that it was worth the full one-third discount and we think that that was entirely the right approach to take; it was a guilty plea which was of value because it saved not only the victim from having to give evidence, but also from the whole family from having to suffer that trauma.  We also accept entirely that this defendant has genuine remorse for what he has done.  He has, as he put it in his own language in his letter to us, "done some terrible things", "Through my terrible actions" he said, "I have lost the only real family I have ever had" and we accept that that is a genuine statement of remorse. 

6.        We have looked at the cases and the other material put before us.  All cases are different and depend on their own facts.  We also have regard to the fact that public feeling in respect of child abuse offences has perhaps changed over the last 5-10 years and we think that the sentence of the Courts should reflect the abhorrence which the community rightly has for offending of this kind.  Putting all these features together has caused us to discuss, at some length, what is the right sentence to impose in this case. 

7.        In all the circumstances, having regard to all the factors which I have set out, the Court thinks that it is right to impose these sentences: on Count 1 you are sentenced to 3½ years' imprisonment, on Count 2; 3½ years' imprisonment, on Count 3; 12 months' imprisonment, on Count 4; 3½ years' imprisonment, and they will all run concurrently, making a total of 3½ years' imprisonment. 

8.        As far as the restrictive orders are concerned the Court is satisfied that there is a risk of serious sexual harm in this defendant and accordingly we make the restrictive orders which the Crown has sought and which are not contested by the defendant.  We also note that by virtue of the Sex Offenders (Jersey) Law 2010 the defendant is automatically subject to the notification requirements and you will not be able to apply to the Court for a period of 10 years from today to have the notification requirements lifted.  They will apply for 10 years from now. 

Authorities

Sex Offenders (Jersey) Law 2010.

Brewster v AG [2001] JLR 312.

AG v B.R. [2006] JRC 155.

AG v Hamon [2006] JRC 160.

AG v Freeman [2003] JRC 028.