Four-year prison sentence for marina rape

Thursday 04 February 2021

A 25-year-old man, who was found guilty of raping a woman at St. Helier Marina, has been jailed for four years.

Mark Fernandes was sentenced three months after a six-day jury trial in October, when a jury found him guilty of one count of rape at the marina but acquitted him of another count, which was alleged to have taken place at his home, with the same victim, later than evening.

Laying out the facts at sentencing, Crown Advocate Emma Hollywood said that both Fernandes and the victim attended a party at a hotel on 4 May 2019. 

Around midnight, the group continued into town and by this time the victim was extremely drunk and could not remember anything about the rest of the evening. Later, witnesses said that she had vomited, lost her shoes and fell over multiple times.

“There is an abundance of evidence that showed how drunk the victim had become during the course of the evening,” said Advocate Hollywood. “While the victim couldn’t recall that she drank by the end of the evening at the hotel, she was feeling drunk, she was dizzy and her body was swaying.”

Refused entry into a club, the victim and defendant were briefly left by friends sitting together on a bench near Liberation Square. When the friends returned, the two had disappeared.

Pictured: The prosecution argued that CCTV footage from around Liberation Square showed that the victim was drunk and incapable of looking after herself.

“While the victim does not recall any events until she woke up the following morning at the defendant’s house, CCTV footage shows the defendant and the victim walking near the marina,” said Advocate Hollywood.

Two security guards around the Harbour saw them having sex, with the Crown arguing and the jury agreeing, that the victim was too drunk to consent. 

The pair then got a lift to Fernandes home, where the victim spent the night.

Advocate Julian Gollop, defending, argued that the Court needed to look at the whole evening in its entirety, including the alleged sexual intercourse at Fernandes’s home. This had formed the basis on a second charge of rape, which the jury had unanimously acquitted him of.

This, he argued, was why his client had shown a lack of remorse - which the Crown had identified as a factor that the Court should consider in sentencing. Fernandes, Advocate Gollop said, maintained his belief that the sex had been consensual. 

“The second count is relevant because it goes to my client’s lack of remorse and empathy because it puts into context what he thought happened that night,” he said.

However, Advocate Hollywood argued that the Court should not consider the facts around the acquittal because it should focus exclusively on the rape at the marina, which the jury in October was sure beyond all reasonable doubt had happened. 

In passing sentence, Commissioner Sir William Bailihache, who was sitting with Jurats Ramsden, Thomas and Pitman, said that Fernandes’s acquittal on the second count of rape “is not something we can disregard all together”.

“The jury could not be sure that the victim did not reasonably consent at the defendant’s house and it is right that we look at all the circumstances,” he said.

Sir William added that the victim’s conduct on the night made the defendant’s culpability less than it would have otherwise been. 

“We do have witness evidence, which was presented to the jury, that the victim was attracted to the defendant that evening and had given non-verbal signals which he could have interpreted,” he said.

“This is not to say that any responsibility for the rape is attached to the victim but the extent of culpability invariably varies from time to time - and can I stress that this is firmly, firmly rooted in authority [previous judgments].

Sir William also added that the Court had taken into account the deep and lasting impact of the rape on the victim, which had caused her depression and anxiety and left her unable to work and socialise normally. 

“This was out of character for the defendant, who has no previous conviction and a good work record but rape is rape and he was convicted unanimously by a jury. 

In passing the four-year sentence, he said: “We have considered all mitigation and have taken a step back from the Crown’s recommendation of five years.”

The Court also placed Fernandes on the sex offenders’ register for at least five years, after which he can apply for his terms to be varied, and ordered him not to approach or contact the victim for five years, with a breach resulting in two years in prison. 

Fernandes is appealing his conviction in April.

After sentencing, Detective Inspector Christina MacLennan, Head of the Criminal Investigation Department, said: “The offence happened in May 2019 and although this has had a devastating impact on the victim, she has shown a great deal of courage during the investigation and has been supported by specially trained police officers, Independent Sexual Violence Advisors and staff at Dewberry House throughout the whole process.

“The updated Sexual Offences (Jersey) Law, which came into force in 2018, provides greater protection for victims and clarifies the law on consent, particularly for cases involving alcohol or drugs.

“Help is available from a number of agencies who can offer support and guidance to victims of sexual assaults and we remain committed to working with our partners, especially support and advocacy services such as the SARC at Dewberry House, JAAR and the Jersey Women’s Refuge, to encourage victims of sexual crime to report such incidents.

“Thankfully rape is a very rare occurrence in Jersey and we will do our utmost to investigate and bring perpetrators to justice.

“The Sexual Assault Referral Centre at Dewberry House provides expert independent and confidential support to victims of sexual abuse. 

“The centre comprises a team of experts with a wealth of knowledge and experience in advising, supporting and treating anyone who has been raped or sexually assaulted. They can be reached on 01534 888222.”