Jersey’s courts are “likely” impose higher sentences for rape in future after the Royal Court said that punishments had previously been too lenient.
The recently-published document also shed light on how the courts are planning to sentence rapists from now on.
It comes after Gavin Neil Roberts was jailed for 15 years after being found guilty of offences against three women last year.
One of his victims, Suzie Mahe, gave up her right to anonymity to tell her story publicly and decided to read her victim impact statement out in court herself.
The Bailiff, Sir Timothy Le Cocq, said this meant that victims should in future also be allowed to read their statement out in court – though it has not been decided whether they should be cross-examined on what has been said.
Victim statements tell the court about the impact a crime has had on a person – for example on their mental and physical health, their personal relationships, or their job or living situation.
But Roberts’ sentencing has ramifications for the way rapists are sentenced, beyond his individual case.
Express took a look at why rape sentences needed to changes, and what the new sentencing regime will look like…
Why did sentences need to change?
The court had an outdated view of rapes, according to the Bailiff.
He said: “In our judgment, viewed historically, sentences for rape of an adult in Jersey have been somewhat lower than we view as appropriate in modern times.
“We understand much better now (and it is likely that understanding will develop) the effect and consequences on the victim of rape.
“On any analysis, as we have said, it is a deeply intrusive and abusive act that subjugates the will of an individual as to how their own body might be used, to the will of someone who is using it for sexual gratification or domination or other reasons personal to them.”
[Rape] is a deeply intrusive and abusive act that subjugates the will of an individual as to how their own body might be used, to the will of someone who is using it for sexual gratification
The Bailiff, Sir Timothy Le Cocq
He added: “Accordingly, this Court is likely to impose higher sentences than might hitherto have been the case, reflecting not only current understanding as to the consequences of rape, but also what we see to be the mores and standards of modern society.
A new sentencing regime
During Roberts’s sentencing, the Attorney General presented a new and more structured way of sentencing rapes.
But the guidelines risked being too rigid and not accounting for specific circumstances or consequences, the Royal Court found.
Instead, they said they would would use case law to, over time, build up a framework and a “de facto range of sentences”.
To come up with a sentence, the court will look at harm and culpability to come up with an initial point, and then adapt it according to aggravating features and mitigation.
The suggested guidelines could come in useful in future, if prosecutors want to use them to inform their suggested sentences, the Bailiff added.
What were the proposed guidelines?
During the sentencing, the island’s top prosecutor suggested a new structure to rape sentences.
These would still have been in the five- to 15-year range, but created more clearly defined starting points depending on the severity of the crime.
These were not accepted as they were, but the court made a point to say they weren’t rejecting the guidelines, either.
- The Attorney General’s proposal would have seen “a single offence of rape by a single offender absent any of the harm and culpability factors” punished by five or six years’ imprisonment.
- If there was at least one harm or culpability factor, sentences would be in the seven- to nine-year range.
- Cases deemed “severe” – because of a combination of harm and culpability or because harm was “extreme” – would have seen sentences of 10 to 12 years.
- “Exceptionally bad” cases with “extreme harm” and high culpability would have seen a 15-year sentence.
- Cases with a “campaign of rape” would also have seen a 15-year sentence.
Harm and culpability
To decide how severe a rape is, courts use a list of factors that show how bad the harm was, and if the rapist has additional culpability.
These are non-exhaustive lists of factors that make the crime worse, which are likely to grow longer as the court hears different cases.
The harm factors listed
- Significant physical harm;
- Severe psychological harm, which may be aggravated in cases where the victim was already suffering some form of psychological difficulties, whether or not the defendant was aware of those difficulties;
- Significant emotional harm, exacerbated by (but not limited to) prior emotional difficulties;
- Pregnancy resulting from the offence;
- Sexually transmitted disease or infection contracted as a consequence of the offence;
- Humiliation and / or degradation, beyond the rape itself;
- Violence, or threats of violence, beyond that inherent in the rape itself;
- A prolonged rape, or multiple rapes / acts of penetration;
- Abduction;
- Prolonged detention;
- The rape occurring in the victim’s home;
- The defendant forcing entry into the victim’s home in order to carry out the rape.
The culpability factors listed
- Significant degree of planning
- Offender acts together with others to commit the offence
- Use of alcohol/drugs on victim to facilitate the offence
- Specific targeting of a particularly vulnerable individual
- Abuse of trust
- Previous violence or sexual violence against victim
- Other unlawful sexual activity during the course of one attack;
- Recording of the offence
- Distributing a video recording of the offence via any media
- Commercial exploitation and/or motivation
- Offence racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or gender identity (or presumed transgender identity)
- Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability)
What happened before?
Previously, Jersey has used guidelines set out in a 2002 case in the Court of Appeal for England and Wales, Milberry v R.
But this case “is now showing its age”, according to the Bailiff – who said he hoped it wouldn’t need to be used in future.
From 2021 onwards, the courts also often referred to guidelines from the English and Welsh Sentencing Council.
But as a separate jurisdiction, Jersey’s courts prefer to not tie themselves to English and Welsh decisions.