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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> W v AG [2022] JCA 117 (26 May 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_117.html Cite as: [2022] JCA 117 |
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Before : |
George Bompas, Q.C., Lord Anderson of Ipswich K.B.E. Q.C. and Sir Wyn Williams |
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Between |
W |
Appellant |
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And |
Her Majesty's Attorney General |
Respondent |
Appellant representing himself
Advocate P. G. Nicholls as amicus curiae
R. C. L. Morley-Kirk Crown Advocate representing the Attorney General
judgment
anderson ja:
1. On 21 July 2021, following a three-day Assize trial before the Royal Court (Commissioner JA Clyde-Smith and a jury), the Appellant, aged 50, was convicted by a unanimous verdict on one count of procuring an act of gross indecency (Count 1) and by a majority verdict on three counts of indecent assault (Counts 2-4). The offences were said on the indictment to have been committed at unspecified times between 3 March 2013 and 31 December 2015 on the Appellant's god-daughter, who at the time was between 7 and 10 years old. The Appellant had been a family friend and regular visitor to his god-daughter's home. She also used to visit and stay the night in his home. He had a variety of previous convictions in Jersey and elsewhere, including for harassment and common assault but not for sexual offences.
2. Following oral argument on 3 and 8 November 2021 (adjourned from September following a change of counsel) the Appellant was sentenced by the Superior Number (Commissioner JA Clyde-Smith and Jurats Ramsden, Christensen and Austin-Vautier). Under the Sex Offenders Law, it was determined that 10 years from the date of sentence would elapse before the Appellant could apply to lift the notification requirements, and that the Restraining Orders requested by the Crown would be imposed for a period of 10 years from the date of sentence. On Counts 1 and 4, the Appellant was sentenced to 5 years and 6 months' imprisonment. On Counts 2 and 3 the Appellant was sentenced to 3 years' imprisonment. Each of those sentences was imposed concurrently, making a total of 5 years 6 months' imprisonment. One Jurat would have imposed a higher sentence of 6 years 6 months' imprisonment for Counts 1 and 4. The deportation of the Appellant was not recommended. Save in relation to deportation, this sentence corresponded in all respects to the conclusions of the Crown. Sentence was passed on 8 November 2021 and a reasoned judgment on sentence was handed down on 29 November 2021 (AG v W [2021] JRC 329).
3. In that judgment at [2]-[3] the offences were described as follows:
4. The Appellant is unrepresented, having received two negative opinions as to his chances of success on appeal against conviction, and one negative opinion as to his chances of success on appeal against sentence. His 28-day time limit for applying to appeal against conviction under Article 32(1A) of the Court of Appeal (Jersey) Law 1961 expired on 18 August 2021. The Appellant filed a Notice of Application for leave to appeal against conviction on 25 September 2021, in which he set out eight grounds of appeal, but had not filed written contentions in support by 7 April 2022, which was the deadline for the May 2022 hearing of this Court. A directions hearing before Sir William Bailhache JA, sitting as a single judge of the Court of Appeal, took place on 21 April 2022. The Appellant was directed to file his contentions by 3 May 2022, which he duly did. The Appellant also signed a waiver of privilege so as to enable his trial counsel, Advocate Harrison, to respond to certain allegations made in his appeal against conviction.
5. The Appellant additionally applied in time for leave to appeal his sentence, on the basis that the sentence was wrong in principle and manifestly excessive. At the hearing on 21 April 2022 Sir William Bailhache JA considered the application. He then granted the Appellant leave to appeal against sentence, and ordered an amicus curiae to be appointed to assist the court by presenting written and oral arguments in relation to that issue. Advocate Steenson was appointed to act in this role, and we have had the assistance of his written submissions on sentence. Advocate Nicholls, who appeared as amicus at the hearing before us, gave us further assistance on that issue.
6. We consider first the Appellant's application for an extension of time to appeal against his conviction. If he is refused the extension of time, or if he is allowed the extension but either is refused leave to appeal against his conviction required under Article 24 of the Court of Appeal (Jersey) Law 1961 or his appeal is dismissed, it will be relevant then to consider the Appellant's appeal against his sentence.
7. This Court has a discretion under Article 32(3) of the Court of Appeal (Jersey) Law 1961 to extend the time for an application for leave to appeal. The law applicable to such applications was set out by Commissioner Sir Michael Birt in da Silva v Attorney General [2021] JRC 028 at [9]-[10]:
8. As to the length of the delay in the present case, a notice which was due by 18 August 2021 was lodged only on 25 September 2021. The delay was aggravated by the Appellant's subsequent failure to respond to a number of letters from the Greffe regarding the progress of his appeal, but we do not take those matters into account for the purpose of considering this application, focusing rather on the period prior to the lodging of the notice. The delay was of a little over a month, which from the point of view of the Appellant himself, the person most obviously affected by it, might be characterised as relatively short. However, it seems to us that in a case of the present nature even a short period may be material, as the final conclusion of the proceedings is desirable in the public interest and in the interests of others who have been involved in and affected by the offences for which the Appellant has been convicted and by the Appellant's trial.
9. As to the reasons for not appealing in time, the Appellant was informed in a letter from Advocate Harrison dated 28 July 2021 that if notwithstanding the negative advice enclosed he wished to lodge an appeal, he should let the firm know as soon as possible if he required their assistance. The letter specifically asked the Appellant to remember that he had 28 days (in bold type) from the date of conviction in which to lodge the appeal, and encouraged the Appellant to contact Advocate Harrison if he had any further questions. The Appellant accepted that he received but did not respond to the letter. Though he failed to meet the deadline of which he had been notified, he was not completely inactive. He decided to seek a second opinion and was issued with a legal aid certificate on 24 September, the day before he eventually lodged his notice of appeal.
10. As to the merits of the proposed appeal, these were outlined in the notice signed on 25 September, developed orally at the hearing of 21 April 2022, and further developed in the Appellant's subsequent written contentions and orally before us.
11. We have been assisted, in considering the Appellant's submissions, by Crown Advocate Morley-Kirk's very fair presentation of the Respondent's case, in which she has been conscientious in endeavouring to ensure that as a litigant in person the Appellant has not been disadvantaged in advancing the points he might properly make. We are satisfied that we have understood the thrust of the Appellant's complaints. We discuss these below.
12. As appears below, in our judgement there is no realistic prospect of any of the Appellant's complaints successfully founding an appeal against his conviction. Given this, there is nothing to be said in support of the Appellant's application for an extension of time, which accordingly we refuse.
First ground: lawyer said he did not need to give evidence
13. The Appellant claims that Advocate Harrison either told him not to give evidence at his trial or that he did not need to give evidence. The Appellant complains that as a result he lost the opportunity to present his own evidence as to his innocence of the offences charged.
14. As explained in a detailed File Note written on 21 July 2021 by Jackie O'Donoghue, a Legal Assistant at BCR Law LLP, the Appellant after court on 19 July, the first day of his trial, read through Advocate Harrison's generic written advice on the advantages and disadvantages of giving evidence. They discussed the decision; Advocate Harrison advised that it would be better for the Appellant not to give evidence, and explained reasons for that advice; and the Appellant agreed to accept the advice.
15. The following day, the second day of the trial, the subject was discussed again at court after the completion of the prosecution case. The Appellant expressed doubt about his decision, but was reassured by being shown Advocate Harrison's closing speech. Once again he decided not to give evidence. He counter-signed the generic advice that he had been shown the previous day. The trial therefore proceeded to closing speeches.
16. These matters are deposed to in Advocate Harrison's affidavit of 11 May 2022, which exhibits the file note and generic advice. This is conclusive of the issue. We would reject this ground of appeal.
Second ground: hearsay evidence not given at trial
17. On 6 July 2021, the Crown applied under Articles 64(1)(d) and 67A(4) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") to introduce hearsay evidence from three witnesses: the Complainant's mother, a friend of the Complainant and the safeguarding lead at her school. Their statements were to the effect that the Complainant had informed them of the alleged assaults between January and March 2020. The Defence objected on the basis that there was a need, in fairness, to restrict evidence of repeated complaints and that the evidence should be confined to a single complaint only.
18. Written submissions were made by the Crown, and after oral argument the Commissioner gave a judgment in which he ruled that all three statements should be admitted. In that judgment, Advocate Harrison is recorded as maintaining his submission on fairness but as accepting that the evidence was in principle admissible under Article 67A(7) of the 2003 Law, and as conceding (in accordance with Phipson on Evidence, 19th edition at 30-48 and the English decision of R v O [2006] EWCA Crim 556, at [21]-[23]) that more than one complaint may be admissible if the additional complaints have relevance over and above that of the first admissible complaint. The concessions made by Advocate Harrison seem to us to have been realistic (indeed unavoidable) and we find no basis for criticising his approach or indeed the ruling of the Commissioner, though this is not the subject of challenge by the Appellant.
Third ground: Defence Counsel was "working with the Prosecution"
19. The Appellant complains of "the prosecution and defence working together to advance the case against me". Under that loose heading he develops a number of complaints relating to his Advocate's conduct of the trial, to which Advocate Harrison responds in his affidavit.
20. At the directions hearing on 21 April and again before us, this complaint was developed by reference to a suggestion that Advocate Harrison was putting words into the Complainant's mouth by asking her leading questions during his cross-examination, and that rather than challenging her evidence was assisting her.
21. We have reviewed the transcript of Advocate Harrison's cross-examination of the Complainant. We were not, of course, present in court when the cross-examination was being conducted, and have only the printed text. But it is immediately obvious from the nature of the case that the Complainant would be a vulnerable witness whose cross-examination would require considerable sensitivity when testing her evidence. It is also clear from the transcript that Advocate Harrison was seeking to, and did in fact, put the Appellant's case fairly to the Complainant. It is therefore impossible to see any realistic ground of appeal in the complaint concerning the cross-examination of the Complainant.
22. It was further suggested that Advocate Harrison failed to cross-examine the prosecution witnesses. However he did cross-examine the Complainant, her mother and the police officer. He did not cross-examine the other witnesses to whom the Complainant had told her story because, as he told the Jury in his closing speech, there was no reason to doubt that she told it, and because telling a number of people a similar story does not make it true.
23. In relation to Count 1, the Appellant claims that the prosecution case is implausible because of the likelihood that others would have been outside in the vicinity on a sunny afternoon, meaning that the behaviour alleged of him would have been extraordinarily risky. These points were however made by Advocate Harrison in his closing speech, and were thus fairly placed before the Jury for its consideration.
24. We therefore reject any ground of appeal founded on complaints made about Advocate Harrison's conduct of the Appellant's defence.
Fourth ground: prosecution case based on hearsay
25. There is nothing in this point. The Complainant gave direct evidence of the alleged offences, and the Crown based its case on hearsay only to the extent permitted by the Court in the ruling summarised at [18] above.
Fifth ground: offences impossible at the times alleged
26. In his defence case statement, the Appellant stated that he had no sexual contact with the Complainant between 2013 and 2015, when on the prosecution case the offences were committed. At a meeting with Advocate Harrison on 14 July 2021, which was recorded in a file note, the Appellant revised his instructions, and his proof of evidence was amended to reflect his revised position. In summary, the Appellant now accepted that the Complainant had stayed regularly at the apartment where the Appellant lived with his then wife, and that the Appellant was in the habit of driving the Complainant home on Sunday afternoons between 2010 and 2012 when the Complainant was around 5 to 7 years old, but maintained that he had no contact of any kind with the Complainant (not merely no contact of a sexual nature) between 2013 and 2015.
27. The Appellant's objection appears to focus on the fact that neither he nor his ex-wife, from whom he separated in October 2014, was called as a witness. We have already dealt with the issue of his own evidence. As to his ex-wife, Mr Harrison agrees that her evidence might have contradicted the Complainant's account that the alleged offences took place when she was 9 -10 years old. He came to the conclusion however that the risks of harm to the Appellant's case from calling her as a witness far outweighed the benefits of doing so, and that it was strategically wiser to focus instead on the quality of the investigation and the absence of corroboration. Suffice it to say that this is a conclusion which, having read the statement that was taken from her, we can readily understand.
28. We are accordingly not persuaded that Advocate Harrison was in any way at fault over this issue, or that it arguably contributed to a miscarriage of justice.
Sixth ground: layout of flat
29. The Appellant submits that the layout of the furniture in his flat was wrongly remembered by the Complainant, rendering it inconceivable that she could have been there as recently as the period alleged by the Crown. Advocate Harrison put it to the Complainant in cross-examination that her recollection of the layout was different from that of the Appellant and that it was faulty, which she denied. The matter was also raised when questioning her mother. Given the Appellant's decision not to give evidence, nothing more could have been done to advance this point, the potential relevance of which to the issues before the Jury seems in any event to have been highly marginal at best.
Other grounds
30. The Appellant put his arguments under various other headings which, as developed in writing and orally before us, add nothing of substance to the grounds which we have already considered. None of them presents any basis for questioning the rulings or conduct of the trial by Commissioner Clyde-Smith, the decisions of Advocate Harrison or the verdict of the Jury.
Appeal against conviction: conclusion
31. We find no arguable basis for appeal against conviction on any of the grounds set out in Article 26(1) of the Court of Appeal (Jersey) Law 1961. Had properly arguable grounds existed we would have been inclined to extend time and grant leave to appeal, notwithstanding the Appellant's delay in lodging his notice. However, no such grounds having been identified, we decline to grant an extension of time for this appeal.
Notification requirement and restraining order
32. Leave to appeal against the notification requirement and restraining order was sought in the Appellant's notice of appeal against sentence, but without elaboration in writing or orally, whether before Sir William Bailhache JA or at the hearing of the appeal. It did not form the basis of the grant of leave and to the extent that leave may still be sought on this ground, we decline to give it.
Level of sentence
33. The decision of Sir William Bailhache JA to grant leave to appeal against sentence was communicated in an email to the parties of 22 April 2022. In summary the issue which the single judge decided to be suitable for consideration by the full court as a ground of appeal concerns the approach which the sentencing court took towards the English Guidelines for England and Wales ("the English Guidelines") in relation to certain sexual offences towards a child under 13 years of age. Within England and Wales, courts are placed under a general duty by section 50 of the Sentencing Act 2020 to follow the English Guidelines unless they are satisfied that it would be contrary to the interests of justice to do so.
34. It has been clear at least since the guidance given by this Court in K v Attorney General [2016] JCA 219 ("K") that in a case such as the present the sentencing court may, should it think it appropriate, consider and take account of the various factors identified in the English Guidelines as relevant to sentencing approach: that is, as indicators of degree of harm, culpability and mitigation.
35. On the other hand it has been argued that a sentencing court in Jersey should not take any account of the sentencing levels set out in the English Guidelines, being guidance established for sentencing by the courts of England and Wales for offences there. As to this, the English Guidelines state a set of sentence starting points and ranges for sentence to be found by applying the indicators, once identified, to a table of sentencing values. The question on this appeal is whether a sentencing court may pay any further attention to anything in the English Guidelines, beyond the factors mentioned in the previous paragraph of this judgment, and in particular whether it would be a mistake as a matter of law for the sentencing court to use the sentencing levels indicated in the English Guidelines as a reference point.
36. In the present case, this question arises because the Royal Court when sentencing the Appellant explained in the careful and detailed judgment given by the Commissioner that the Court had considered the English Guidelines, and that while they did not apply them "in so far as the levels of sentence or starting points were concerned," they had nevertheless had regard to those factors "merely as a useful cross check". In other words, the sentencing court had made use of the English Guidelines beyond simply looking at the various factors identified as relevant to harm, culpability and mitigation, and must have done so to see whether the sentences being contemplated were within a reasonable range of what might have been arrived at by an application of the formulae and principles set out in the English Guidelines.
37. Before turning to the merits of the Appellant's appeal against sentence, we set out the background to the sentence imposed.
38. The offences were committed prior to the Sexual Offences (Jersey) Law 2018, which imposes maximum penalties of 14 years' imprisonment for an adult intentionally touching sexually a person aged 12 or younger and for causing or inciting a person aged 12 or younger to commit a sexual act. The customary law offences of which the Appellant was convicted carry no maximum sentence, and there are no English Guidelines for them.
39. The concurrent custodial sentences in respect of each count were first proposed, in identical form to those eventually imposed, in the Crown's sentencing conclusions of 15 October 2021. In the sentencing hearing on 3 November 2021, the Commissioner noted that there had been an "upward review" of sentencing levels for some sexual offences against children following K [2016] JCA 219; referred to the review of the implications of that case in Attorney General v S [2017] JRC 194A; and addressed Crown Advocate Gollop as follows:
The hearing was accordingly adjourned so that the Court could be addressed on the English Guidelines and on indecent assault cases dealt with in the Jersey courts since K. The Crown provided the Court with written "Addendum Conclusions" covering both issues. Following the adjourned hearing on 8 November 2021, the Court endorsed the sentences proposed by the Crown.
40. In the Court's reasons for the sentences imposed on the Appellant, explained in the judgment of 29 November ([2021] JRC 329), the Court stated at [7]-[8]:
41. The Court went on to record the category, culpability, starting point, range and aggravating and mitigating factors that would have applied under the English Guidelines to each of the four counts charged in this case, and to review in summary the six gross indecency and/or indecent assault cases since 2016 involving adults offending against minors of comparable age to the Complainant. The Court concluded at [11]:
42. We turn now to address the grounds on which the Appellant has leave to appeal against his sentence.
43. Nothing in this judgment should be taken to depart from or qualify in any way the judgment of this Court in K. Indeed, for reasons we explain, that judgment is in our view supportive of the course taken by the Royal Court in the present case.
44. It is a settled proposition that the courts of Jersey are not expected to follow the English Guidelines, or indeed to give reasons should they choose to depart from them. The Court in K put the position as follows, at [30]:
45. In support of this position, the Court in K had already referred at [28] to the constitutional importance in Jersey of sentences being determined by elected Jurats drawn from a wide range of skill sets within the Island, to the role of HM Attorney General as a quasi-judicial influence on sentencing, to the fact that the decisions of the Westminster Parliament cannot necessarily be of assistance in Jersey, and to the differences in the statutory regimes applicable in England on the one hand and Jersey on the other.
46. The Court went on to say at [32]-[34]:
47. Of immediate relevance to the present appeal, and contrary to the position contended for by the Appellant in the present case, we are satisfied that the Court in K did not lay down any principle that it is improper for a sentencing court to have regard to English sentencing levels as a point of reference. We derive support for this conclusion from a number of passages in the judgment.
(i) In the passage from Wicks endorsed by the Court in K at [30], it is said that the sentencing court "may simply consider that the sentencing levels in England are too high or too low or should not be followed". Implicit in those words is the proposition that a Jersey court may have regard to sentencing levels for equivalent offences in England, since without doing so it would be impossible for it to form a view as to whether those levels are too high or too low.
(ii) The Court in K confirmed expressly at [32] that the Jurats "may wish to have regard to sentencing levels in England and Wales", albeit that there is no presumption that these should be followed in Jersey and if the sentencing court chooses not to adopt such levels it is not required to explain why it has not done so.
(iii) At [35] the Court noted that the sentencing court would have been wrong to have concluded it was obliged to follow the English Guidelines, but accepted with approval the sentencing court's observation that "In our judgment, the sentencing levels envisaged by the guidelines for the conduct of the defendant in this case are also correct for this jurisdiction" (emphasis in original).
(iv) At [36] the Court confirmed: "It is clear that the Royal Court recognised that it was not obligatory to follow the Guidelines but thought it was right to apply them in this particular case for this particular offending. That independent assessment by the Court was consistent with principle".
(v) At [39] the Court, having referred to the harm done to the victim by the offences in question, added: "This emphasises that the Royal Court was entitled to consider the approach taken in England and Wales, as set out by the Guidelines for the purposes of considering what would be the appropriate starting point in Jersey for these particular offences."
48. We affirm once again that Jersey courts are under no obligation to have regard to the starting points or sentencing ranges set out in the English Guidelines. Not only are these not binding: there is no presumption that they should be followed or even consulted. There are however cases in which reference to English practice can provide useful guidance or reassurance.
49. In our judgment the current case presents just such an example. Sentencing in Jersey for the relevant offences is unrestricted by law; the most similar recent Jersey cases differed greatly in their facts (as was remarked in the sentencing judgment: [2021] JRC 329 at [10]); and no express guidance was available as to the practical implications of the encouragement that had been given in K and subsequent cases to increase the level of sentence for some types of indecent assault on a child. In such circumstances, we can well understand why the Jurats might have wished to seek guidance or to check their own views against the English Guidelines, in full knowledge of the fact that there was no obligation or expectation on them to follow or even to have regard to them.
50. We would add that even where the English Guidelines are not followed in relation to the absolute length of a sentence, there may be value in comparing the English sentencing levels for different categories of an offence, so as to inform, test or confirm the opinions of Jurats as to the relative seriousness of those different types. Once again, there is no obligation to conform to English practice: a point well understood by the Royal Court, which imposed a 3-year sentence on Count 2 in the knowledge that this exceeded the sentencing range in the English guidelines for kissing a child under 13 on the mouth ([2021] JRC 329 at [8] and [11]). Nonetheless, the exercise may be of assistance when seeking to assess the comparative seriousness of different categories of offence, or simply in the Royal Court's phrase as a cross check. We find a degree of artificiality in drawing a rigid distinction between having regard to aggravating and mitigating factors on the one hand and sentencing levels on the other, and we decline to do so. We make no criticism of the Royal Court for considering the English Guidelines in the manner and for the purpose described in its sentencing judgment, which seems to us consistent with the law as declared in K.
51. Neither do we consider that W's sentence was manifestly excessive. There is no doubt that it was a substantial sentence. But it was arrived at after careful consideration of comparable sentences, including in the six recent Jersey cases considered at the 8 November hearing. Each case falls to be considered on its own facts, and the sentence in this case does not seem to us to have been manifestly out of line with these other decisions or with the principles underlying them.
52. The Court in K noted at [39] the greater awareness today of the damage which can be done to victims of indecent assault and rape than was once the case; and in the present case the Royal Court said that the effect on the victim had been "profound". It is noteworthy, in this regard, that one Jurat would have imposed a higher sentence (by 12 months) in relation to Counts 1 and 4, and that W's counsel sought a reduction of no more than 3-6 months in the sentences proposed by the Crown on those counts.
53. The Royal Court gave careful consideration to the appropriate level of sentence, and we decline to interfere with the answer that it reached.
54. For these reasons we refuse an extension of time to appeal against conviction, and we refuse leave to appeal against sentence.
