Carter J
Neutral Citation: [2025] CIGC (Crim) 11
IND0031 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL DIVISION
R
-V-
C
Coram:
Hon. Justice Marlene Carter
Appearances:
Mr. Kenneth Ferguson for Crown
Ms. Amelia Fosuhene for Defendant
Sentence Hearing:
29 January 2025
Sentence Judgment:
25 February 2025
Criminal Law – Judge Alone Trial – Sentence – Indecent Assault on a Female – s.132 (1)
of the Penal Code (2019 Revision) - Gross Indecency – s. 134A (1) of the Penal Code
(2019 Revision)
SENTENCE JUDGMENT
1.
Section 12 of the Youth Justice Act (2019 Revision) states:
“12. (1) In relation to any proceedings in any court, such court
may direct [and this court so directs] that-
(a) no published report of or comment on the
proceedings shall reveal the name, address or
school, or include any particulars calculated to
lead to the identification, of any young person
concerned in the proceedings, either as being the
person by, against or in respect of whom the
proceedings are taken, or as being a witness in the
proceedings; and
(b) no picture shall be published as being or including
a picture of any young person so concerned in the
proceedings.
(2)
Whoever publishes any matter in contravention of
subsection (1) is guilty of an offence and liable on
summary conviction, in respect of each such offence, to
a fine of five thousand dollars or to imprisonment for
six months.”
2.
For the avoidance of doubt: An order pursuant to s.12(1)(a) and (b) above is herein
made – with the consequences set out in s.12(2) to follow should there be a breach
of 20 this Order.
3.
Section 31 of the Criminal Procedure Code (CPC) (2019 Revision) deals with the
Anonymity of complainants in rape etc. cases and states:
“31. (1) After a person is accused of a rape [etc.] offence, no
matter likely to lead members of the public to identify a
woman as the woman against whom the offence is
alleged to have been committed shall be published in a
written publication available to the public or be
broadcast, except as authorised by a direction of the
court.”
4.
For the avoidance of doubt: It is the Court’s view that the charges of Indecent
Assault and Gross Indecency fall within this section of the Act by virtue of the use
of the word “etc.” and therefore I herein make an order in the terms of the wording
of s.31(1) of the CPC as above.
5.
The names of all participants in this case will be anonymized. It is also ordered
that the name of the Defendant is anonymized for this judgment to protect the
identity of the Complainant.
6.
On 11 May 2023, the Defendant was found guilty on Indictment 32/2021 of all
seven counts on the indictment, six counts of offences of Indecent Assault and one
count for Gross Indecency.
7.
The Defendant was tried by Judge Alone. Justice Micheal Wood Q.C (Actg.)
presided over that trial and returned the guilty verdicts. Unfortunately, Acting
Justice Wood is now deceased. This Court has had the benefit of the verdict
judgment delivered by Acting Justice Wood and the submissions of the Crown and
Defence Counsel who were both the attorneys at the trial on this sentencing
exercise.
8.
The verdict judgment outlines, in detail, the circumstances of the offending in
relation to each count. There is no need for this Court to delve into the minutiae of
the facts giving rise to the verdict. These were allegations of inappropriate touching
of a child between the ages of 7 and 11 years old. In determination of the
appropriate sentence, I have carefully confined myself to the facts as outlined by
the court in its verdict Judgment.
Sentencing Submissions
Indecent Assault
9.
The Crown has submitted that for the purposes of the Cayman Islands Sentencing
Guidelines on Sexual Offences, (“The Guidelines”) as they apply to the offence of
Indecent Assault, these are Category 2A offences.
10.
The harm is said to be Category 2 on the basis that the evidence revealed repeated
touching of the victim’s genitalia by the Defendant. The Crown’s submission that
this is the appropriate classification of harm is also based on what was stated to be
“an indication that she has been encountering some psychological harm as a
consequence of being subjected to this type of sexual assault over the course of the
almost five-year period of offending.” Crown Counsel also referred to a case status
report prepared by the Department of Community Rehabilitation (“DCR”) in
support of this submission. I will return to the report below when I consider the
Victim Impact Report.
11.
Regarding the level of the Defendant’s culpability, the Crown submitted that it
should be at Category A on the basis that this offending involves an abuse of trust.
The Court is being asked to consider evidence at trial that the Complainant
regarded the offender as a father figure, and that he regarded her as he would a
daughter. The relationship was such that the Defendant knew the Complainant
from birth and that his family and the victim’s mother had been friends for many
years. In such circumstances, Crown Counsel submitted that there was here an
“egregious breach of trust as the young victim was entitled to believe the offender
should be protecting/guarding her welfare and not abuse her trust over these years
of offending.”
12.
Counsel for the Defendant submitted that the more appropriate categorization for
the offences of Indecent Assault should be Category 2B. Counsel contended that
there was no evidence before this Court of the level of psychological harm suffered
by the Complainant. Counsel noted that there was no actual psychological or
psychologist report in relation to the child before the Court and that there was
nothing to indicate that the views of the victim’s psychologist were at the time of
sentence.
13.
She argued that the views expressed by the Department of Children and Family
Services (“DCFS”) did not amount to evidence of harm to the victim such that the
court could find that there was anything beyond the harm inherent in an offence of
this sort in light of the age of the victim. It was submitted that there was nothing
before the court to sustain a finding of severe psychological harm.
14.
Regarding culpability, Counsel submitted that there was no evidence presented at
trial that the child was placed particularly in the Defendant’s care when she went
to the Defendant’s household or that the Defendant was “specifically entrusted
with responsibility for that child”. Counsel submitted that breach of trust normally
arises out of a specific position, for example, teacher, social worker or priest and
that it was not simply in cases where a mother asks a neighbour to look after their
child. Counsel argued that this was a distinction that impacted on the level of
culpability. Apart from breach of trust, with none of the other factors for Category
A present, Counsel submitted that culpability should be at B.
Gross Indecency
15.
In respect of the count of Gross Indecency, stemming from the evidence accepted
at trial that on one occasion the offender rubbed himself against the buttock of the
victim after she had taken a shower, the Crown submitted that this was also a
Category 2A offence.
16.
For the Defendant, it was contended that the same issues regarding harm should
be considered here. Counsel for the Defendant stated, in addition to her previous
arguments on this issue, that there was nothing to indicate to the Court that the
Complainant was particularly vulnerable and stated that this should be considered
a Category 3B offence.
The Victim Impact Report
17.
A Victim Impact Report (“VIR”) was ordered to be prepared for the purpose of
sentence. The DCR referred to remarks from the Deputy Director of DCFS in
which the Deputy Director noted that the department did not consider that it would
be in the Complainant’s best interest to be reinterviewed for a VIR. The Deputy
Director stated that the Complainant’s psychologist supported this decision. He
went on to state as follows:
“When [the complainant] was previously interviewed, she
experienced significant trauma, resulting in a prolonged recovery
period. Given the delays in the court process, her progress in
therapy has been slow but steady. Reintroducing her to the
traumatic event through another interview could disrupt this
progress, potentially retraumatizing her.”
18.
There is no report from the Complainant’s psychologist for the Court’s attention.
The Social Inquiry Report
19.
The Defendant was born in the Cayman Islands. He moved with his parents to
Honduras when he was six years old and returned when he turned eighteen years
old. The Social Inquiry Report (“SIR”) records that the Defendant was brought up
in an extended family environment with uncles, aunts and cousins. He stated that
he was not exposed to substance misuse or violence within his family home. The
Defendant described having positive and supportive relationships with all his
family members. He stated that they had been unwavering in their support of him
since his arrest and conviction.
20.
The Defendant has never been involved in the criminal justice system. After the
Defendant returned to the Cayman Islands, he obtained employment and remained
with the same organization for several years. He has been married since 2003 and
shares two children with his wife. The Defendant did not disclose any ongoing
physical or mental health issues and informed that he has never used or
experimented with illegal drugs. Various persons were interviewed, apart from the
Defendant's wife, for the completion of the SIR. The Defendant was described as
a gentleman, very family oriented and very respected within the community. One
of his family friends informed that he had known the Defendant since he was
eighteen years old, he stated that the Defendant was friendly and warm and an
overall good father to his children.
21.
Regarding his attitude towards the offense, the Defendant continued to deny that
he had committed the offences. He stated that he is upset about being before the
court and having been found guilty of these charges; he stated that he has never
and would never hurt a child and has never condoned such behavior. He
maintained that although he was initially upset with the Complainant for what he
says are false allegations, he has now forgiven her but hopes she would understand
eventually how this has impacted him and his family.
22.
The Defendant was assessed as at low risk of reoffending for a sexual crime and
at low risk of reoffending for a non-sexual violent crime.
Aggravating Factors
23.
The following are the aggravating factors:
i)
The location of the offences - All the offending is said to have occurred
either at the offender’s home or the home of the victim. In all instances, these
are places where the victim was entitled to feel safe.
ii) The age of the victim - The Complainant was between ages 7 and 12 when
these offences occurred. The Complainant could be considered particularly
vulnerable.
iii) The disparity between the age of the victim and that of the offender – At the
time the first incident occurred the Complainant was 7 years old and the
Defendant 36.
iv) The fact that this was not one occasion of indecent assault but that the
indecent assaults took place six times over the course of five years.
Mitigating Features
24.
The mitigating factors are as follows:
i)
The offender’s lack of previous convictions.
ii) Rehabilitation – The Defendant has committed no further offending before
or since these matters have been before the Court. Counsel submitted that
this shows a degree of rehabilitation on the part of the Defendant.
iii) Delay - One of the factors that counsel for the Defendant advanced for
further mitigation is the delay in this matter, delay in the matter coming to
trial and further delay in sentence after the unfortunate passing of Wood J.
(Actg.). This matter was transmitted to the Grand Court in May 2021. The
trial did not take place until April 2023. The factors which led to delay are
not attributable to the Defendant.
The Court’s Considerations
25.
The maximum sentence for an offence of Indecent Assault, contrary to section 132
(1) of the Penal Code (2019 Revision) is one of ten (10) years imprisonment.
26.
The maximum sentence for an offence of Gross Indecency, contrary to section
134A (1) of the Penal Code (2019 Revision) is one of twelve (12) years
imprisonment.
27.
This Court has previously dealt with the issue of psychological harm. In R v Chall1
it was held that expert evidence is not a necessary precondition to a court finding
a victim has suffered severe psychological harm.
“The judicial assessment may, in some cases, be assisted by expert
evidence from a psychologist or psychiatrist. However, we reject
the submission that it is always essential for the sentencer to
consider expert evidence before deciding whether a victim has
suffered severe psychological harm. On the contrary, the judge
may make such an assessment and will usually be able to make
such an assessment, without needing to obtain expert evidence.”
28.
In R v Forbes2, the Court stated:
1 [2019] EWCA Crim 865; [2019] 2 Cr App R (S) 44
2 [2016] EWCA Crim 1388
“In assessing whether the psychological harm in a particular
sexual case is severe, a judge must keep in mind that the levels of
sentence which the sexual offences guideline sets out already take
into account the psychological harm which is inherent in the
nature of the offence.”
29.
In this case this Court has not had the benefit of having heard the evidence of the
Complainant. There is no expert evidence for its consideration on this issue. I bear
in mind that, with respect to the Guidelines, the starting point noted therein reflects
the essential gravity of the offence of indecent assault on a female under 16 years
old. There is no evidence to support a finding of severe psychological harm.
30.
This Court must emphasize that the Court moves to sentence on the facts found
and relied upon by the trial Judge. Any matters relating to conduct of the
proceedings at trial are for an appellate court. These do not have a bearing on this
sentence.
31.
There is some disagreement regarding whether the court should view the
Defendant as holding a position of trust in relation to the Complainant. In WVF3,
the Attorney General sought to challenge an 18-month sentence imposed on a
mother who had been found to have sold indecent photographs of her 12-year-old
daughter and incited the child to engage in sexual activity. At issue was whether,
in order to find that there was an abuse of trust, there needed to be something more
before a parent was guilty of breach of trust in sexual offending against children.
32.
In that case, the court found that a breach of trust was clearly established, and this
resulted in an increase to the sentence on appeal. However, the court also noted
that in some instances “…for example, an older sibling has looked after a younger
sibling and committed a sexual offence …that might colloquially be considered to
be an abuse of trust but was not the situation aimed at by the reference to “abuse
of trust” in the culpability sections of the relevant Guidelines.”
33.
The court referred to Forbes, in which the Court of Appeal dealt with a number of
related issues which arose in sentencing for historic sexual offences. The court
referred to applicable general principles. Regarding culpability, the court notes as
follows:
“15. The guidelines make clear the factors that are to be taken
into account, as aggravating or mitigating factors. It is
essential that the court avoids double counting, by bearing
in mind that the starting points will reflect the essesntial
gravity of the offense in question. As we explain in the next
paragraphs, taking advantage of a relationship to commit an
offense may have already been taken into account in the
3 [2023] EWCA Crim 65
selection of the starting point; something more is therefore
required to establish abuse of trust as a separate aggravating
factor or to justify placing the offense in a particular
category of culpability.”
34.
Regarding abuse of trust, it was stated as follows:
“17. Whilst we understand that in the colloquial sense the
children’s parents would have trusted a cousin, other
relation or a neighbour … to behave properly towards their
young children, the phrase “abuse of trust”, as used in the
guideline, connotes something rather more than that. The
mere fact of association or the fact that one sibling is older
than another does not necessarily amount to breach of trust
in this context. The observations in [54] of R v H should be
read in this light.”
35.
The court emphasized that there must be “a close examination of the facts and
clear justification given if abuse of trust is to be found.”
36.
I do not find that there is an abuse of trust established in the circumstances of this
case so as to increase culpability, which, on the facts, is at Category B.
37.
After consideration of the above, I find that as per the Guidelines, the offences of
Indecent Assault are Category 2B offences with a starting point of four (4) years
custody and a sentencing range of 3-7 years. The Cayman Islands Sentencing
Guidelines provide that concurrent sentences will ordinarily be appropriate where,
as in this case, there is a series of offences of the same or similar kind especially
when committed against the same victim. Where concurrent sentences are passed
the sentence should reflect the overall criminality involved. The sentence should
be appropriately aggravated by the presence of the associated offence, and thus,
the court may increase the sentence of the principal offence to reflect the gravity
of the conduct. I therefore increase the starting point within the sentencing range
to five (5) years custody. Taking account of the aggravating and mitigating factors
outlined above, that sentence is increased to 5 ½ years custody.
38.
For the delay not occasioned by the actions of the Defendant, there will be a further
deduction of 15 months to the sentence. For personal circumstances, 6 months is
deducted from the sentence to take the sentence to 3 years and 9 months custody.
The sentence for each offence of indecent assault is to run concurrently to Count 1
on the indictment.
39.
For the offence of Gross Indecency, the sentence of the Court is 3 years custody.
This sentence will run concurrent to the sentence for Indecent Assault at Count 1.
Conditions curtailing liberty
40.
The Defendant has been subject to bail conditions. The Cayman Islands Sentencing
Guidelines allow for a reduction in sentence for time spent on remand and subject
to conditions curtailing liberty.
41.
The Cayman Islands Sentencing Guidelines at 12.2:
“The court must consider whether credit should be given for time
spent on bail where conditions have been imposed which curtail
the liberty of the Defendant. This is most likely to be relevant
where a Defendant has been subjected to a curfew, especially
where compliance with that curfew can be verified through
electronic monitoring.”
42.
It is accepted that the time that the Defendant has been on bail and subject to the
wearing of an electronically monitored bracelet is a condition curtailing liberty.
This Court must consider whether credit should be given to the Defendant after
consideration of the following factors:
i)
The total length of time the defendant has been subject to a curfew;
ii) The number of hours each day that curfew was imposed during the curfew;
iii) Whether the curfew included daytime hours or was solely a nighttime
curfew recognizing that being indoors at night during for example normal
sleeping hours may be less of a curtailment of liberty than being indoors
during the day; and
iv) Any breach of the conditions of curfew.
43.
The courts in the Cayman Islands have considered this issue in a number of cases.
In The Crown v. Tibbets4, the defendant was on bail subject to a curfew and
electronic monitoring for 596 days. Dobbs J. accorded him a 4.5-month reduction
in sentence. In The Crown v. Rankin5 this court awarded a three-month reduction
to sentence where the electronic tag was worn for 436 days and where there had
been a breach of curfew. In the case of Rivers, McGuinness & Moore6, the
defendant, Moore, was subject to curfew with an electronic tag for 780 days he
was accorded a reduction in sentence of 6 months.
44.
There are two more recent cases which are of relevance on this issue of the
electronic tag. The first is The Crown v. Palinda Dissanayake7. In that case, a
judgment of Richard J. KC, the Defendant was sentenced for one count of indecent
4 Indictment 71/2015
5 Unreported. R v Rankine (Antascio Terrell) Ind. 108/16
6 2021 (2) CILR 641
7 Ind. 94-95 of 2023
assault for an assault on a 15-year-old girl which occurred on a public bus. The
defendant was found to have touched the complainant on her lower leg and rubbed
his hand up to her thigh three to five times. The defendant was a person of previous
good character. A social inquiry report determined that he was at a low risk of
sexual and general reoffending. The court took into account his personal
circumstances and the fact that incarceration in the Cayman Islands would mean
prolonged absence from his family, who were residents in his home country.
45.
The court assessed the circumstances of the offence at Category 2 and lower
culpability with a starting point of four years custody, and sentencing range of
three to seven years. In that case, without aggravating factors present, and taking
account of the mitigating factors referred to above, the court found a sentence of
29 months’ imprisonment was appropriate. The defendant, at the time of sentence,
had been on an electronic monitor for 163 days with curfew hours between 11:30
PM and 8:00 AM. The court found that his daily movements were not restricted to
a significant extent. However, after taking account of this factor and applying the
discretionary principles outlined at Section 12 of the Sentencing Guidelines,
Richards J. accorded the defendant a credit of 50% of the total number of days that
the defendant was on curfew with the electronic monitor.
46.
In the case of The Crown v. Josepeter8, the defendant was before the court for one
count of indecent assault. The inappropriate touching related to a young girl; seven
years old. The nature of the assault was that the defendant had made contact with
her by placing his hands over and beneath her swimsuit. The defendant was
convicted was sentenced to a term of 16 months’ imprisonment. The defendant
was given credit for the time that he had been on bail with an electronic monitor.
the court described the period under which the defendant had been subject to the
electronic monitor with other bail conditions as “onerous” and, for this reason,
applied a discount of 50% to the number of days during which the defendant had
been on the electronic monitor and subject to curfew.
47.
In this case, there has been a much more egregious imposition on the liberty of the
Defendant and as such a more significant discount must be accorded to the
Defendant. The Defendant has been subject to a curfew from 16 November 2020
to present. He was fitted with an electronic monitor from that date.
48.
From 16 November 2020, the Defendant was on bail with conditions that included
a curfew between 5:00 PM to 6:00 AM on weekdays and 24 hours during the
weekends. From 21 May 2021 to 3 March 2022, the Defendant was on curfew,
which included restrictions between the hours of 3:00 PM to 10:00 AM on
weekdays, a 24-hour curfew on all weekends, and a 24-hour curfew to be observed
when schools were on break. During the time the Defendant was subject to 24-
8 Ind. 16 of 2018
hour curfews during school breaks, these periods encompassed at least one Easter
vacation, one summer vacation and one Christmas vacation.
49.
Between 1 April 2022 to the present, the Defendant’s bail conditions were varied
so that the curfew hours were limited to 7:00 PM to 7:00 AM daily. Conditions
regarding the 24-hour curfew were lifted.
50.
There have been minor variations of the curfew to enable the Defendant to be out
later or for a few days during the time that his wife was ill and hospitalized. There
has been no breach of the conditions of the curfew by this defendant during the
period 16 November 2020 to today's date.
51.
The Defendant was subject to a curfew between 16 November 2020 and 30 March
2022, with electronic monitor and 24-hour curfews during all weekends and during
the period of school holidays. That period amounts to 499 days. For the period of
1 April 2022 to the present, the Defendant was under a 7:00 PM to 7:00 AM curfew
with electronic monitor. That period amounts to 1044 days.
52.
I find that the length of time that the Defendant was subject to the curfew while
wearing the electronic monitor is significant enough that he should receive credit
for this curtailment of his liberty within the meaning of Section 12 of the Cayman
Islands Sentencing Guidelines. For the period 16 November 2020 to 30 March
2022, 499 days, the Defendant shall have a reduction in sentence to equate to 75%
of those days. For the period 1 April 2022 to the present, some 1044 days, the
Defendant shall have a reduction in sentence of 50% of those days.
53.
Any time that the Defendant has spent in custody is to be deducted from this
sentence.
54.
The Crown has applied for a Sexual Harm Prevention Order (SHPO) following the
Defendant’s release from prison for the protection of the public. This Court is
satisfied that a SHPO is necessary for the protection of the victim and the public.
That Order is granted for a period of 4 years.
Hon. Justice Marlene I. Carter
Judge of the Grand Court