(e) The offences involved one incident of digital penetration and the general touching of the vaginal area in all five cases. In the case of two of the victims, Figueira also touched their breasts.
(f) In respect of one victim the indecent assault occurred on the first visit. In the cases of the other victims, the indecent assaults occurred in consequence of a course of conduct. This course of conduct was viewed by the Crown as a gradual grooming of the victim and that such grooming was designed to increase the confidence and trust that the victim had in Figueira. The suggestions made by Figueira to the effect that the victims had suffered trauma, miscarriage, sexual dysfunction were all designed by Figueira to increase the vulnerability of the victim and their reliance upon him.
(g) No force or violence was used by Figueira in committing the indecent assaults on the five victims.
(h) The impact upon the victims. Four out of five of the victims agreed to see a Consultant Psychologist and Victim Impact Statement were produced in respect of those four victims. Two of the victims had suffered from Post Traumatic Stress Disorder and all four victims had suffered to a greater or lesser extent psychological difficulties. In the opinion of the Consultant Clinical Psychologist, three of the victims were likely to continue to suffer from these symptoms in the future.
Having regard to those factors and following the request contained within the Court of Appeal Judgment of Harrison -v- the A.G. the Crown adopted a starting point of 6 years' imprisonment. In reaching that starting point, the Crown did not distinguish between the victims in the five counts either for the purposes of fixing the starting point or in moving Conclusions.
Details of Mitigation:
Figueira had pleaded not guilty and had been convicted unanimously on five Counts. He did not have available to him the substantial mitigation that a guilty plea would have afforded for such offences. The not guilty plea was not treated by the Crown as an aggravating factor but rather simply as a feature to be set against whatever mitigation was available. Even though he had not challenged the factual accounts given by the victims at trial, the Crown considered that this did not given rise to any mitigation.
Figueira had the benefit of mitigation in the form of being a first offender and therefore being of prior good character. Six character witnesses were called at trial and a bundle of character references were provided to the Sentencing Court containing a total of 28 references. In addition and in consequences of the offences it was acknowledged that Figueira's career as a masseur had been ruined although in the view of the Crown, Figueira was the author of his own misfortune. The Crown also considered that the ruination of Figueira's career had to be set against the effect that the offences had had upon the victims. Figueira did not have the benefit of remorse or regret as through his Advocate he had already indicated an intention to appeal against his conviction. In the Social Enquiry Report, Figueira denied the offences and claimed there was a conspiracy against him. This was the first occasion that such an allegation had been raised and it had not been put either to any of the victims or in speeches to the Jury.
The Defence emphasised the good character of Figueira and the ruination of his career. The Defence did not put forward an alternative starting point but acknowledged that it was a matter for the Sentencing Court as to whether it wished to fix a starting point in the particular circumstances of this case or not. By reference to the English authorities the Defence suggested that a proper sentence in the case of Figueira would be in the region of 3 years' imprisonment.
The Crown had sought a recommendation for the deportation of Figueira at the end of his sentence and the Defence challenged this contending that it was inappropriate for such a recommendation to be made particularly as Figueira was a first offender with family members/dependants still in Jersey.
Previous Convictions:
None. Figueira was of good character.
Conclusions:
Count 2:
years' imprisonment (6 years' starting point).
Count 4:
years' imprisonment.
Count 6:
years' imprisonment.
Count 7:
years' imprisonment.
Count 8:
years' imprisonment, all concurrent
Request for recommendation for deportation.
Sentence and Observations of Court:
Figueira who was aged 44 had been convicted of five counts of indecent assault following a 6 day trial. He had been acquitted of another three charges. The offences were committed on women between the ages of mid 20's - mid 30's who had come to him for treatment as a masseur during a period of some two years. By virtue of the verdicts of guilty the Jury had rejected his argument that the women had consented. No evidence had been given by him that the victims had consented to the indecent assaults. The Jury were therefore satisfied that Figueira did the acts for purposes of his own sexual gratification. He had abused the trust of the victims. However, there had been no violence used. The assaults had been committed by the accused by fraud and guile. He had deceived the patients and had betrayed their confidence. The Court had regard to the serious impact upon the victims as recorded by the Psychological reports.
The Court considered whether, in the particular circumstances of this case, it should identify a starting point. The maximum for such an offence in the UK was 10 years which was a statutory limit. No maximum in Jersey. The Crown suggested a starting point of 6 years. However, this was the first case of its kind before the Jersey Courts, although the Court had regard to the English cases (see extract from Current Sentencing).
The Court had regard to the Court of Appeal's judgment in Harrison -v- The Attorney General (2004) and despite the comments contained within that judgment, it was noted that the Judges in the English cases had not identified starting points for the sentences. English cases were of no help in trying to fix a starting point. The Royal Court would have had to speculate on the starting points which the English Courts would have used so as to arrive at the actual sentences imposed. As there was no precedent in Jersey for cases of this nature it was difficult to arrive at a starting point which would be of any assistance in future cases. Thus whilst the Court was bound by the Judgment in Harrison -v- The Attorney General , the Court of Appeal was not issuing a direction to the Royal Court and it therefore remained within the Royal Court's discretion not to identify a starting point it if saw fit.
In Figueira's case the Royal Court declined to adopt a starting point. In considering the appropriate sentence, the Royal Court identified the following aggravating features:
Professional man giving rise to abuse and breach of trust.
Victims vulnerable by general nature of attendance for massage and because of their health problems.
Five victims.
Offences committed for a two year period.
Impact on victims and regard had been had to the Victim Impact Statements in four of the victims' cases.
The Court noted the following mitigating factors:
Figueira was of previous good character aged 44.
Twenty-eight testimonials had been produced expressing admiration for him.
His career had been ruined.
The Court stated that the sentence would be the same for each of the Counts. The Court imposed a sentence of four years' imprisonment on each count, concurrent.
In relation to the issue of deportation this had been discussed at length by the Jurats. One Jurat felt that on the basis that the offences were serious this warranted a recommendation. However the majority considered that as he was a first offender and having regard to the testimonials it was not necessary to order deportation on this occasion but Figueira was warned that if there were further offences it was inevitable that deportation would follow.
J. C. Gollop, Esq., Crown Advocate.
Advocate D.Gilbert for the Defendant.
JUDGMENT
THE COMMISSIONER:
Joao Carlos Rodrigues Figueira you are aged 44. After a trial lasting 6 days in December, you were convicted by a jury on five counts of indecent assault. You were acquitted on three other counts.
The offences were committed by you against women patients or clients whose ages ranged from the mid-twenties to mid-thirties who came to you for treatment in your professional capacity as a masseur. The offences took place over a period of 2 years or more, from about the middle of the year 2000 until October, 2002. The Court recognises that they did not take place continually over that period.
By their verdicts of guilty the jury clearly rejected the suggestions made to each of the complainants by your counsel, though not supported by any evidence from you, that what you did was part of the therapy which you were carrying out, that the victims consented to it, and that in any event you genuinely believed that they were consenting to it. The jury were clearly satisfied, as was obviously the case, that you performed these indecent acts not as part of any therapy but for purposes of your own sexual gratification.
These women trusted you. You took advantage of them and abused that trust. This is not a case where the victims' lack of consent was overcome by force or violence. You carried out these indecent assaults by fraud and guile, by deceiving your patients as to the nature of their ailments, and as to the treatment necessary to cure them, and by betraying the confidence which they had in you as a professional man.
The effect which the assaults have had on the victims is in many cases serious and has been detailed in a psychologist's reports on four of them.
The next and important point which the Court has to consider is whether the Court should identify a starting point for sentence, and if so, what starting point should the Court adopt? The Court is aware of the fact that the maximum sentence for these offences in England is 10 years' imprisonment, though there is no maximum sentence in the jurisdiction of Jersey.
Crown Counsel Mr Gollop, suggests a starting point before mitigation of 6 years. This is apparently the first case of its kind to come to be sentenced in Jersey. However, we have been referred to and have read reports of a number of somewhat similar cases in England. They are R -v- Pike [1996] 1 Cr. App. R.(S) 4, the case of a hypnotherapist where the sentence was 4 years' imprisonment. The case of R -v- Prokop [1995] 16 Cr. App.R.(S) 598, the case of a herbalist where again the sentence was 4 years' imprisonment. The case of R -v- Ghosh [1999] 1 CR. App.R.(S) 225, the case of a general practitioner where a sentence of 3 years was reduced as an act of mercy to one of 2 years. Attorney General's Reference No.6 of 1999 [2002] 2 Cr. App. R. (S) 67, the case of an osteopath, a decision to which I was a party, where twelve months' imprisonment suspended was increased on the Attorney General's Reference to a term of 18 months' imprisonment, the Court saying that it would have expected a sentence at first instance of at least 30 months; and the case of the Attorney General's Reference No. 62 [1998] 2000 2 Cr. App. R. (S) 286 where the accused had pretended to be a doctor, the sentence was upheld at 5 years though the Court of Appeal Criminal Division expressed the view that it should at first instance have been 7 years' imprisonment .
The Court reminds itself that those were the sentences actually imposed or which were suggested as appropriate sentences after consideration of any mitigating features. The Court notes that in all cases the sentences followed convictions and, therefore, there was no element of discount for a plea of guilty.
The Court, of course, has the greatest respect for the decision of the Court of Appeal of Jersey in the case of Harrison -v- Attorney General [2004]JCA046 and is bound by it. However, despite comments to the contrary effect in that case, it is the experience of this Court that in England judges at first instance do not customarily identify or announce a starting point for their sentence. We say that simply to express the view that we find, therefore, that the English cases are of no real assistance in identifying a starting point; because in examining the English cases we would have to speculate and it comes to no more, what the notional starting point might have been had the English judge thought of adopting one.
As we have said there is no precedent in Jersey for setting a starting point in cases such as this. In cases of indecent assault the factors and circumstances are so variable that it is difficult if not impossible to arrive at a starting point which would be of any assistance in future cases. Each case depends upon the seriousness and frequency of the offending, the status of the offender, the number of victims involved and the impact on each individual victim, both at the time and in the long term.
As we have made plain we have read the judgment in Harrison with great care and we acknowledge that we are bound by it. Nevertheless, the Court has regard to what was said in the judgment of Sir John Nutting, QC at paragraph 138 and I quote:
"We emphasise, therefore, that we regard it as desirable for the Royal Court to identify starting points; but what we have said does not constitute a direction that the Royal Court must perform this function."
As both Counsel have expressly agreed the Court of Appeal in that passage expressed it as being desirable though not incumbent upon the Royal Court to identify a starting point. Crown Counsel, Mr Gollop, conceded that it is within the Court's remit and discretion not to announce a starting point. Defence counsel assured us that the Court would not be criticised if it did not utilise a starting point.
In our discretion and for the reasons we have set out we decline to adopt a starting point in this case. So we come to examine what the actual sentence must be. We have read the Social Enquiry Report. We have read no fewer than 28 testimonials presented on your behalf expressing the admiration of many people who know you and who have been treated by you. The Court bears in mind that at your trial no fewer than 7 witnesses gave evidence to like effect. Nevertheless, the Court must have regard to factors which both aggravate and mitigate these offences. The aggravating features appear to be these:
(i) You were a professional man and these offences represented a breach of your professional duty and an abuse of trust which your clients placed in you.
(ii) Your victims were vulnerable, most of them were unwell, and some of them were groomed by you in order that you could carry out your desires.
(iii) There was not one, but five of these victims.
(iv) These offences were committed over, though as the Court has said, not continuously over, a period of 2 years and finally,
(v) The impact on the victims as set out in the Reports upon 4 of them.
The Court then looks to see what mitigating factors there are and first and foremost is the fact that you are a man of previous good character now aged 44. We emphasis again that that is borne out by witnesses who gave evidence at your trial and by the many testimonials that have been produced since.
The Court can also bear in mind the fact that your career as a masseur has been ruined by these convictions. The Court bears all those matters in mind. The sentences on each count will be the same and will be concurrent. We make no distinction between the different offences. Clearly a non custodial sentence would not be justified and is not suggested on your behalf.
The Crown have concluded that a sentence of 4 years' imprisonment would be appropriate. That has not been vigorously dissented from by Defence counsel, though Miss Gilbert did draw the attention of the Court to the sentence of 3 years reduced to 2 in the case of Ghosh to which reference has already been make and she referred to Pike but Miss Gilbert did not present the Court with any cogent argument as to why the Crown's conclusions were inappropriate.
The Court is not bound by any conclusions presented by the Crown. The Court has examined both individually and collectively what the appropriate sentence in this case should be and in particular what it should be so as to reflect the total criminality having regard to the features both of aggravation and mitigation.
The conclusion that the Crown reaches is that the sentence on each count concurrent is 4 years' imprisonment.
The Court has considered an application made on behalf of the Crown for a recommendation for deportation. That question has given rise to considerable discussion. One strong view was that these were serious offences which would justify such a recommendation. However, the majority felt that as a first offender and having regard to the excellent testimonials which have been presented to the Court it is not necessary to recommend your deportation. However, the Court wishes to make it plain and issues this warning that if there were to be any further offences deportation or a recommendation for it would almost inevitably follow. That is the sentence of the Court.
Authorities
Whelan: Aspects of Sentencing in the Superior Courts of Jersey (2 nd Ed'n): pp. 331-337; 344-408.
Attorney General's Reference No. 6 of 1999 (R -v- Midda) [2002] 2 Cr.App. R.(S) 67.
R -v- Tabassum [2000] 2 Cr. App. R. S 328; (26 th May, 2000) The Times.
A.G. -v- Fenn and others [2003] JRC105.
R -v- Pike [1996] 1 Cr.App.R.(S) 4.
R -v- Prokop [1995] 16 Cr. App.R. (S) 598.
R -v- Ghosh [1999] 1 Cr. App.R. (S) 225.
Attorney General's Reference No. 62 of 1996 (R. -v- Onybogu) [2002] 2 Cr. App. R. (S) 286.
R -v- Healy [2003] Cr. App. R. (S).
Immigration Act 1971 as extended to Jersey by the Immigration (Jersey) Order 1993; Section 6(2) entitled Notice as regards liability to deportation.
R -v- Nazari, R -v- Dissanayake, R -v- Anyanwu and R -v- Fernandez and Another [1980] 1 WLR 1366.
Jersey Law Review (Oct 1998) - The Rights of European Citizens in Jersey (Richard Plender, Q.C.).
A.G. -v- Dias [2003]JRC189.
A.G. -v- Figueira [2003]JRC178.
Jersey Law Review (Oct 1997) - Deportation from Jersey, Roque -v- Lieutenant Governor of Jersey [Michael Birt, Q.C.].
A.G. -v- de Sousa [2003]JRC196.
Monteiro -v- A.G. (7 th August, 2001) Jersey Unreported; [2001/177].
R -v- Nazir [1980] 3 All ER 880.
Harrison -v- A.G . [2004]JCA046.