Jersey Unreported Judgments

[2009]JRC137

ROYAL COURT

(Samedi Division)

3rd July 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Tibbo and Newcombe.

The Attorney General

-v-

R

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Indecent Assault.  (Count 1).
5 counts of:	Possession of an indecent photograph.  (Counts 2, 3, 4, 5 and 6).

Age:  23.

Plea: Guilty.

Details of Offence:

On 24^th February, 2009, the defendant was baby-sitter to his seven year old step-sister.  He had sole parental responsibility.  The assault took place in the girl's bedroom that night.  She was dressed in her nightclothes and was tucked up in her bed.  The defendant entered her room and sat on her bed.  He pulled back the bedclothes and undressed the girl.  He pulled her nightgown up above her stomach and removed her underwear.  He then rubbed her vagina with his fingers.  He admitted in interview that he had an erection and felt aroused.  The defendant turned the girl over on her back.  The defendant positioned himself so that his penis made contact with the girl's buttocks.  He began to masturbate.  At some point his step-sister returned to lying on her back.  The defendant continued to masturbate himself and he ejaculated over the girl's stomach.  There was no penetration at any stage.

At the conclusion of the incident, the defendant wiped the girl's stomach with tissue and she was left to go to sleep.  The mother arrived home at 10:15 to find her asleep.  The defendant challenged his mother to a game of chess and they stayed up until 1:00 chatting and laughing.

On Friday 27^th February, 2009, the seven year old girl disclosed to another member of the family that she had been assaulted by the defendant.  This in turn led to his arrest and cautioned interview.  He made full admissions.

Prior to the indecent assault, the defendant had been downloading child pornography onto his laptop computer.  In December 2008 and again in February 2009, the defendant downloaded a total of three child pornography images and two films from the internet.  The two films and an image were grade 4.  The other two images were grade 1.  These were downloaded using a search engine in which the defendant had typed the search items "Kiddy Porn".  The last image was downloaded on the day prior to the indecent assault.  It featured an adult male apparently having sexual intercourse with a five year old girl.

Details of Mitigation:

One off event.  No threats or coercion.  Prosecution accept no penetration.  Full admissions and therefore girl spared from giving evidence.  Residual youth.  Remorse expressed.

Previous Convictions:

None.

Conclusions:

Count 1:	2 years' and 6 months' imprisonment.
Count 2:	2 months' imprisonment, consecutive.
Count 3:	2months' imprisonment, concurrent.
Count 4:	2 months' imprisonment, concurrent.
Count 5:	2 months' imprisonment, concurrent.
Count 6:	2 months' imprisonment, concurrent

Total:  2 years' and 8 months' imprisonment.

Forfeiture and destruction of images/films and laptop computer sought.

Sentence and Observations of Court:

Court took into account all mitigation.  One off event.  No threats or coercion.  Prosecution accept no penetration.  Full admissions and therefore girl spared from giving evidence.  Residual youth.  Remorse expressed.

Court passed custodial sentence to reflect the abhorrence which right thinking members of society have for the corruption of young children. 

Conclusions granted.

H. Sharp, Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant has pleaded guilty to 5 counts of possession of indecent films and to 1 count of indecently assaulting his seven year old step-sister at a time when he was baby-sitting for their mother.  The assault took place in the girl's bedroom at night.  She was dressed in her nightclothes and was tucked up in her bed.  The defendant entered her room and sat on her bed.  He pulled back the bedclothes and undressed the girl.  He pulled her nightgown up above her stomach and removed her underwear.  He then rubbed her vagina with his fingers.  He admitted in interview that he had an erection and felt aroused.  The defendant turned the girl onto her back and positioned himself so that his penis made contact with the girl's buttocks.  He began to masturbate.  At some point his step-sister returned to lying on her back and the defendant continued to masturbate himself and he ejaculated over the girl's stomach.  There was no penetration at any stage.  At the conclusion of the incident the defendant wiped the girl's stomach with tissue and she was left to go to sleep.  The mother arrived home at 10:15 to find her asleep.  The defendant challenged his mother to a game of chess and then stayed up until 1:00 in the morning chatting and laughing.  On Friday 27^th February, 2009, the girl disclosed to another member of the family that she had been assaulted by the defendant.  This in turn led to his arrest and cautioned interview where he was fully co-operative and made full admissions.  The girl was thus sexually abused in the family home in her own bed at a time when the defendant had sole parental responsibility. 

2.        Between December 2008 and February 2009 the defendant downloaded five child pornography images and films from the internet using a search engine into which he had typed "kiddie porn".  Three were category 4 and two category 1.

3.        In mitigation the Crown accept that there was no penetration or use of force, threats or inducement.  He has pleaded guilty thus sparing his step-sister from giving evidence and he is of good character.  The victim has recovered in the sense that she has not, to date, outwardly displayed a reaction to the incident but the true impact is impossible to gauge at this young age.  The defendant has been assessed at a high risk of sexual re-offending. 

4.        It is clear that there is no band for sentencing for assaults of this kind; as the Deputy Bailiff said in the case of Brewster-v-AG [2001] JLR 312 at paragraph 33 and I quote:-

"We begin by commenting on the submission that there is a general sentencing band of 18 months to 3 years for offences of indecent assault and gross indecency.  We think that to put it in this way gives a misleading impression and suggests that there is some form of onus on a court to justify stepping outside that bracket.  Offences of this nature vary almost infinitely in their seriousness.  In some cases, less than 18 months will suffice; in many more cases, sentences substantially in excess of three years are required.  A study of sentences passed by the court in recent times in relation to child abuse shows many cases where sentences well in excess of three years have been passed.

34 Furthermore, we think that care must be taken in placing weight on older cases.  In recent years, society has become evermore aware of the level of child abuse and the serious long-term consequences which are so often suffered by those who have been abused.  In our judgment, the courts must take note of these factors and pass sentences which reflect them and which reflect the abhorrence which all right-thinking members of society have for the corruption of young children.  We hope to hear less of an 18 months to 3 years sentencing band in future.  The correct approach is to consider all the circumstances of the case and arrive at the correct sentence, which in some cases may fall within such a bracket but in many cases will fall outside it."

5.        We have been referred to the case of AG-v-GB [2008] JRC 122 where the defendant, in his father's house, abused his half-sister by inserting his finger into her vagina when she was in bed and showing her his penis and, when she had returned to bed, he masturbated in the next door room to ejaculation whilst recollecting what he had done; in contrast to the conduct of the defendant in this case.  There was however, in that case, a minor injury to the girl and the defendant was sixteen at the time of the offences and therefore subject to the provisions of the Criminal Justice (Young Offenders)(Jersey) Law 1994.  He was sentenced to 15 months' youth detention.  He was not, in that case, in the same position of trust as the defendant in this case.  He too, had accessed child pornography.

6.        We are also referred to AG-v-Roger Arthur Holland [2008] JRC 061 where a 42 year old man was sentenced to a total of 4 years' imprisonment for indecent assaults over a long period of time on girls between 8 and 13 when in a position of trust.  The assaults were at the lower end of the scale involving opportunistic touching over victims clothing, lasting moments, and often in the presence of or near other people. 

7.        In our view these cases illustrate the breadth of conduct and circumstances in which these kinds of offences take place and how inappropriate the suggestion that any band of sentencing should apply. 

8.        We have listened to Mr Jones' helpful submissions in mitigation.  The defendant has as we have already said pleaded guilty.  He was co-operative and it was an immediate co-operation.  He has saved his step-sister from giving evidence and he has written a letter of remorse which we have considered together with everything else that has been written in the social enquiry report.  He is a man of good character and he has the support of his sister who is in Court.  There was, as the Crown has accepted, no violence or injury and it was the one incident.  We also take into account that the defendant is still 23 and he does therefore still have the benefit of youth.

9.        We note the influence that films and photos downloaded from the internet often seem to have in these cases.  The internet is a powerful force for good giving people access to information and an ability to communicate that would have been inconceivable just a few years ago but it is also a force for evil, creating a market for, and allowing the dissemination of degrading and abusive images that corrode the mind, giving rise to what apparently are overwhelming urges to commit these foul and disgusting acts on young children, acts that are so abhorrent to right-thinking members of our society.  It is an evil that can penetrate right into the sanctuary of our children's homes, committed when in their own beds by people that we trust, people that we would have thought incapable of such depravity.  In our view that Court must act to protect our innocent children from sexual abuse and indeed, the children who are used for the making of these films and from the pernicious influence of child pornography disseminated through the internet and this by imposing lengthy custodial sentences.

10.      In our view, even with the mitigation available to the defendant, and having considered very carefully, Mr Jones, your submissions in relation to community service, we regard the sentence sought by the Crown of 2 years and 8 months as being appropriate to reflect the gravity of this offence committed by somebody who is still a young person.  We therefore grant the conclusions of the Crown.

11.      On count 1 you are sentenced to 2 years' and 6 months' imprisonment, on each of counts 2-6 you are sentenced to 2 months' imprisonment, concurrent to each other but consecutive to count 1.  That is a total of 2 years and 8 months' imprisonment.

12.      We order the forfeiture and destruction of the images and films and the forfeiture of the laptop computer.

13.      We would also hope that programmes can be made available to the defendant in prison to try and address these issues that he has. 

Authorities

Brewster-v-AG [2001] JLR 312.

AG-v-GB [2008] JRC 122.

Criminal Justice (Young Offenders)(Jersey) Law 1994.

AG-v-Holland [2008] JRC 061.