Jersey Unreported Judgments

Inferior Number Sentencing-indecent assault.

[2014]JRC102B

Royal Court

(Samedi)

2 May 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Marett-Crosby and Milner

The Attorney General

-v-

U

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:  23.

Plea: Guilty.

Details of Offence:

The defendant was staying as a guest at the victim's property.  They were friends but not intimately so and not in a relationship together.  Due to space constraints, they shared a bed, but were fully clothed.  The victim had returned home from a family funeral having drunk six pints of lager, but was not drunk.  She lay on the sofa with her legs over the defendant's lap and began to fall asleep.  He began to rub her leg and then placed his hand down her pyjama waist and inserted his finger into her vagina but then removed it shortly afterwards.  Nothing was said between the two at the time, but the victim confronted the defendant two days later when the defendant apologised.  In a Facebook conversation between the defendant and the victim, the defendant apologised once more and admitted that what he did was wrong. 

Details of Mitigation:

Co-operative during interview with significant admissions.  Late guilty plea three weeks before trial. Apologised to victim.  Letter of remorse.

Previous Convictions:

Two convictions in May 2012 for historic offences of gross indecency with a child resulting in a 12-month Probation Order. 

Conclusions:

Count 1:

20 months' imprisonment.

Order 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 to commence from the date of conviction sought. 

Sentence and Observations of Court:

Count 1:

264 hours' Community Service Order, equivalent to 20 months' imprisonment and a 12 month Probation Order with the condition that the defendant undertakes any course of treatment recommended by the Probation Department.

Order 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 to commence from the date of conviction made. 

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

Advocate D. A. Corbel for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant stands to be sentenced for one count of indecent assault.  Before dealing with the sentence, we agree with the Crown that there is no reason why the defendant should not be subject to a notification of 5 years and that is the period that we specify under Article 5 of the Sex Offenders (Jersey) Law 2010. 

2.        Turning to the facts of the case the defendant had been staying with the victim at her flat, sharing her double bed because of the limited space.  They were clothed in bed and no intimacy took place, although at the beginning of the friendship they had, after drinking, kissed.  On the night in question, that is 18^th April, 2013, the victim arrived back at the flat after attending a family funeral.  She had been drinking but was not drunk.  She changed into her pyjamas and joined the defendant on the two-seater sofa in the lounge where he was watching television and put her legs over his lap.  She began to fall asleep.  At some point she became aware of the defendant stroking her leg but pretended to be asleep.  She accepts that she did nothing while the defendant moved his hand down the waist of her pyjamas and inserted his finger into her vagina.  Nothing was said about the incident that night.  They slept in the same bed and he remained staying at the flat for a period sharing the bed.  She did confront him two days later and he apologised.  There followed Facebook interactions in which he accepted that what he did was wrong and apologised. 

3.        The defendant has a previous conviction in May 2012 for gross indecency where he incited his two half-sisters, aged 3 and 5, to touch his penis.  He was 15 at the time of these offences, although sentenced some 7 years later, when he was 22, to 12 months' probation.  He is assessed at a moderate risk of general reconviction but there is a significantly raised risk of sexual reconviction.  The Social Enquiry Report says at paragraph 28:-

"I feel there are identifiable common themes to U's sexual offending.  In particular, his behaviour suggests distorted understanding around the concept of sexual consent combined with the abuse of vulnerable victims, be that by virtue of their age or on this occasion their intoxication.  Unstable accommodation appears to have been a further specific risk factor on this occasion and remains a clear area of concern."

4.        A Psychological Report has been prepared by Dr Briggs and he expresses these opinions in his conclusions:-

"U concedes that he has committed a sexual offence.  The circumstances of the current offence are noteworthy in as much as he and the complainant had slept in the same bed for some time without being sexually intimate.  U suggests that they had kissed previously.  He has reported having "feelings" for the complainant.  He failed to navigate the social cues and boundaries of that situation.  As a result he faces the Court and inevitable punishment.

I have no sense from this interview of U being a sexual predator, nor as indicated above would I choose to label him as a paedophile.  His sexual offending appears context specific.  I do not believe he presents an indiscriminate risk to the general public by way of sexual misbehaviour"

Dr Briggs then goes on to say:-

"Concerning the scenarios in which U is likely to reoffend.  The most obvious scenario for sexual reoffending would be that of a situation in which U is likely to know any potential victim, for him to be confused as to social and sexual cues, and for him to force himself on such a victim.  This would not be with the intention of causing physical harm or to appear threatening, but in a clumsy attempt to be intimate with that person."

5.        In terms of mitigation the defendant has pleaded guilty, albeit late, so he does not get full credit for that.  He has written us a letter and it is clear from that letter that he found it difficult to construct, but he is, we are satisfied, genuinely remorseful for what has happened.  As we indicated earlier, he did apologise immediately when confronted and continued living with the victim. 

6.        We have considered the personal statement of the victim and found the chronology that had been prepared by the Crown very helpful in putting that into context.  In our view we are dealing with two vulnerable people with troubled pasts and individual difficulties.  The circumstances in which this offence took place are very unusual and were such, in our view, to give rise to the potential for cues to be misread, particularly by this defendant.  This is, as Advocate Yates has said, a serious offence but we are persuaded that an individualised sentence is appropriate. 

7.        You are therefore sentenced to 264 hours' community service which is the equivalent of 20 months' imprisonment.  We are also going to place you on Probation for 12 months, subject to the usual conditions and those will be gone through with you by the Greffier, but on the extra condition that you undertake any additional course of treatment that the Probation Department recommend. 

Authorities

Sex Offenders (Jersey) Law 2010.

AG-v-Richards [2010] JRC 158.

AG-v-De Sousa [2012] JRC 110.

AG-v-Benest [2012] JRC 139.