CJ considers sex crime case

(CNS): The crown’s application that a controversial sentence in a sex crime case was unduly lenient was heard Tuesday by Cayman’s Chief Justice Anthony Smellie, who is now considering whether the man who molested his daughter when she was 8 years old will need to return to jail in the New Year. The defendant, who cannot be named because of the danger of identifying his victim, was released from prison last Friday after serving just six months in jail. He pleaded guilty earlier this year to six counts of sexual assault of his child, which had occurred on four separate occasions. He was sentenced by the chief magistrate to nine months with three months suspended, and the crown's position is that the magistrate got it wrong.

Arguing the Summary Court appeal on behalf of the director of public prosecutions, crown counsel Michael Snape told the court that the appeal had been submitted six days after the sentence was delivered but because of the backlog of cases in the courts it had been adjourned twice and so the defendant had already left HMP Northward on 13 December.

Nevertheless, Snape argued that the double jeopardy principle should not necessarily apply as the West Bay man had known from the start that the crown had appealed the sentence and that he should not be allowed to benefit from administrative constraints in the justice system.

Presenting his argument to the chief justice, the public prosecutor said that while he believed the magistrate had started correctly based on the guidelines, with an 18 month sentence for the most serious of the charges, she had failed to show how she had increased that as a result of the various aggravating factors in the case, such as the age of the victim, the breach of trust and the repetition of the offending, before she dealt with the various mitigating factors in the case. Snape said that in her sentencing decision she has not fully explained how she arrived at such a low point and also appeared to give excessive credit in mitigation twice over.

The lawyer argued that the magistrate had failed to consider the totality of the sentence when she ordered all of the sentences handed down for each crime to run concurrently. He submitted that either the 18 months should have increased much more before any discounts were given in mitigation or that the sentences should have been concurrent to reach a more suitable total jail time, given the seriousness of the crime and the need not just to deter the defendant but others too.

“I appreciate this was not an easy sentencing exercise as the guidelines are not precise in terms of totality,” he said. “But what the learned chief magistrate needed to do was either consider all the counts individually and impose consecutive sentences, which could have been reviewed against the totality principle to ensure that the result was not a crushing sentence, or run the sentences together after she had properly taken into account on the lead charge the full range of the offending,” Snape explained.

He said that in effect the offender had been sentenced as though there was just one charge in which only the very basic elements of a sex crime had been made, with no aggravating features considered, resulting in the unduly lenient sentence.

The defendant had been charged with a list of abuse over several months, including touching his daughter with his penis, touching her genitalia, which was considered the most serious and lead count, and making her watch pornography as he masturbated and ejaculated on her, as well as making her touch him.

Given the charges, the sentence shocked the community and led for a call from local activist Sandra Catron for a minimum sentence for all sexual assault cases. This in turn led to a private members motion being tabled in the Legislative Assembly last month by Bodden Town MLA Anthony Eden arguing for government to consider a minimum five year term for sex crimes. The motion was supported by the entire parliament and government is now mulling legislation to address the issue.

Ben Tonner, local defence attorney from Samson McGrath who represented the defendant, said that the chief magistrate was entitled to pass the sentence. He said she had noted her consideration of the aggravating features in her decision, even though she was not explicit in how much she had increased the starting point before reducing because of mitigation and then the discounts for the defendant’s guilty plea and full cooperation.

Tonner said it would have been helpful if the magistrate had explicitly stated how much she had increased and then decreased but it was a complicated case. It was clear, he argued, that she had all of the circumstances in mind. The defence lawyer said that while there were aggravating factors, there was a list of very powerful mitigating ones which the magistrate had to consider.

He explained that his client’s offending had taken place three years before and had ceased long before the case came to the authorities. During that time the defendant and his daughter, who is now a teenager, had taken steps towards repairing their relationship. The defendant had voluntarily sought counselling before charges were brought. At the sentencing hearing his sister submitted a letter to the court outlining the defendant’s own exposure to sexual abuse in the family from a very young age and outside of the family when he was a teenager.

The victim had also pleaded with the magistrate not to send her father to jail as he handed up letters to the judge from the defendant and his children.

Tonner argued that the magistrate had fairly given weight to mitigation, including his client’s admissions, conduct, character and the risk of repetition. He also pointed the judge to the law about sentencing appeals and warned that the court can only increase what are defined as unduly lenient sentences and not because it thinks the sentence is less than another judge may have applied. Tonner argued that even if the chief justice found that the sentence was unduly lenient, he still had discretion given all of the other considerations. He added that sentencing is an art rather than a science.

“Leniency is not a vice,” Tonner said. “Mercy is soundly based in law.”

He concluded that the magistrate did not err in principle and she had worked through the aggravating factors and mitigating features and applied them in the sentence she arrived at, “which was entirely within her discretion,” he added.

During Tonner’s submissions the defendant wept openly in the court and hung his head in his hands throughout.

The CJ stated that he would reserve his decision until 10 January and as a result of the defendant’s recent release from jail, he was bailed with a surety of $5,000 to reside at his mother’s residence. While he was allowed to contact his daughter, as they are currently in joint counselling, he said he could not be with her without another adult being present.