AG v H 09-Sep-2019 [2019] JRC 173 (09 September 2019)

JUDGMENT THE DEPUTY BAILIFF: 1. You are to be sentenced with regard to one count of indecent assault on a 14 year old girl. The offence comprised the touching and digital penetration of the girl's vagina. It took place 15 years ago.

2. The facts have been fully stated by the Crown. Suffice it to say that this offending has serious aggravating features which include, firstly, a serious breach of trust. You were in loco parentis , and trusted by the girl's mother. And, secondly, this offending took place in the girl's bedroom which was a place where someone is entitled to feel safe and secure.

3. You do not have the full benefit of a guilty plea as your version of events was less serious and needed to be tested during the course of a Newton Hearing. You were unsuccessful but your victim had to go through the distress of giving evidence before the Court which was traumatic for her.

4. We note from the case of AG v Brewster 2001/003 in which the Court said: "The removal of a child's innocence and the corruption of the trust which children naturally feel for adults are so serious that, other than in exceptional circumstances, they must be punished with imprisonment." 5. And we also note the case of K v AG; AG v F [2016] JCA 219 in which at paragraph 54 the Court said: "The comments which we have made in this judgment suggest that the Royal Court may wish to review upwards sentences for indecent assaults involving digital penetration of children in future cases." 6. And, lastly, in AG v Dobrin and Ors [2019] JRC 097 the Bailiff said: "We think it is clear from the decisions which have been taken in this Court and in the Court of Appeal over the last five years that it is correct by way of summary to say that sentencing in sexual cases involving children has been more severe than hitherto." 7. We accept that that is the trend, and indeed appropriate for the way in in which the Court deals with matters of offending against children. That notwithstanding, we must still be satisfied in the round that the sentence moved for by the Crown is an appropriate one and indeed reach our own independent assessment.

8. The victim impact report by a clinical psychologist, shows that the victim in this case was traumatised by this event. She suffers from recurrent and intrusive recollections, and clearly when giving evidence at the Newton Hearing she found that to be a distressing experience. She has, in the words of the professional assessment suffered severe psychological harm.

9. However, we note that this was a single occurrence. It was opportunistic in nature, there is no evidence of grooming or preplanning or any sequence of events and it appears to us to be totally out of character on all that we have seen from the paperwork. We also note that you are a man of otherwise good character and although there is a limit to the weight that we can and should place on character in offending of a sexual nature, this offence took place 15 years ago and your good character has shown itself in the intervening period. In other words, we are prepared to give you credit for the character that you have shown since the offending took place. You immediately expressed remorse. You went to your doctor and were frank in the facts that you put to him and sought psychological assistance. All of this speak to your good character. And we accept that you did not report the matter to the police because that apparently was not a course that your victim or the victim's mother wished to take at the time.

10. We note also that you are at a low risk of reoffending and we take into account your full letter of remorse which we accept to be genuine. The references that have been provided on your behalf speak to the good character to which we have made reference, and speak extremely well of you indeed. This single instance of offending is, to the Court, quite incomprehensible: none of the reports reveal an ongoing interest in young children for sexual purposes.

11. The cases that we have reviewed in connection with the sentence that we are about to impose seem to us to be altogether of a different type. We do not criticise the Crown for that because there are mercifully few cases involving digital penetration of children, other than those cases where such an offence is part of a sequence of offences also encompassing more serious offending. They are different because they are of a different type, a different duration and a different cumulative severity, and taking matters in the round, we think the Conclusions moved for by the Crown are too high in these circumstances.

12. Accordingly, you are sentenced to 5 years' imprisonment with regard to the indecent assault.

13. The period under the Sex Offenders (Jersey) Law 2010 before applying for your removal from the register is one of 5 years as well, from the date of sentence.

14. We turn now to consider the question of the restraining order. We note that the practical imposition of such an order is not opposed by the Defence, but submissions are made to us as to the legality of the imposition of such an order in the first place. You have given through counsel your undertaking to the Court that you will in effect behave in accordance with the restraining order sought by the Crown, but it is for us to determine, at this point, whether we could and would impose such an order. We think that the statutory provision as the Crown quite rightly said to us in submissions is not entirely clearly worded, and it may benefit from legislative attention in due course. However, it seems to us as is clear from the case of AG v C [2019] JRC 074 that there must be an evidentiary basis for the imposition of any order and we must be satisfied that it is necessary and proportionate to impose such an order. The factual position as is presented to the Court and is contained in the statement from the victim in this case, is that you have not sought to make contact with the victim or her family at any point over the last 15 years. According to the Social Enquiry Report, you present a low risk of reconviction, and you have confirmed to the Court that you would as you have done in the past turn away should you inadvertently confront the victim in this case. And of course, inadvertence is one of those things that a restraining order could not in any event prevent.

15. In the circumstances we do not think that we are able to make a restraining order in the terms sought by the Crown. In saying that, we are mindful of the fact that should you behave contrary to the undertaking that you have given through counsel to this Court, then not only will you be in breach of that undertaking but it would be open to the Crown to apply for a restraining order. But we do not think in the light of the evidence before us, and in particular the history of this matter, that you are likely to make any deliberate contact with your victim or with your victim's family.

16. That is the sentence of the Court. Authorities AG v Brester 2001/003. K v AG; AG v F [2016] JCA 219 . AG v Dobrin and Ors [2019] JRC 097. Sex Offenders (Jersey) Law 2010. AG v C [2019] JRC 074 Crime (Disorderly Conduct and harassment) (Jersey) Law 2008 AG-v-T [2017] JRC 169 AG-v-W [2018] JRC 061 AG-v-B [2019] JRC 049 Sentencing Council Guidelines - Sexual Assault by penetration Page Last Updated: 21 Oct 2019 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII