The man who was convicted in September last year of fondling his niece was sentenced to two years probation in Magistrates' Court this week.

The 54-year-old Pembroke man who cannot be named for legal reasons, was represented by Phil Perinchief, and was found guilty after a trial last summer.

During the trial, the court heard how he had touched the 13-year-old girl's vagina for approximately 30 seconds through her clothes while she was in his car on Wilkinson Avenue in Hamilton Parish.

Mr. Perinchief made his plea in mitigation before Senior Magistrate Will Francis and cited two Bermuda cases in support of his submission that a custodial sentence was not warranted in the case.

In both of these cases, the defendant had been sentenced to a period of probation and the facts in both indicated a more serious offence than the present case said Mr. Perinchief.

He also outlined how the accused had lost his job as a result of the case and was ostracised by people who knew him. In addition he had been divorced very recently and had been the victim of "a malicious campaign of grafitti.'' Mr. Perinchief claimed that the victim of the offence had not been traumatised by the incident and that "no public purpose would be served'' by incarcerating his client and that such a sentence would be "manifestly harsh and excessive.'' Mr. Perinchief submitted that a probation order and/or community service would be an appropriate sentence.

Ms Lesley Basden appeared for the Crown and disagreed with Mr. Perinchief's submission that the girl had not been traumatised by the assault and stressed that all sexual assaults are serious.

She said that the girl had been upset and cried, that after the incident, her attitude had changed, that her manner of dress had changed and that she had to endure a trial of the matter as the defendant had pleaded not guilty.

Ms Basden cited a UK authority which stated that an offence of this nature attracts a custodial sentence of nine to 12 months although the defendant in that case had previous convictions for similar offences.

She pointed out to Mr. Francis that the Bermuda Court of Appeal authority cited by Mr. Perinchief, did say that the offence of sexual exploitation of a minor normally attracts a custodial sentence and she suggested that a period of incarceration between six and 12 months was warranted.

Mr. Francis took some time to consider the matter and then sentenced the defendant to probation for two years mentioning that the accused had suffered and would continue to suffer as a result of his conviction.

The father of the victim immediately stormed out of court and but returned a few moments later.

Mr. Francis then went to some trouble to explain to everyone in court that the defendant would be under the supervision and direction of a probation officer for two years and that if he missed any appointments or otherwise did not co-operate with Probation Services, he would find himself before the court again.

Mr. Francis made it a condition of the probation that the defendant receive counselling so that he could hopefully get over his problems.