The King v RW - Sentence Judgment

¶ 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 1 of 13 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 IND NO: 92 of 2022 3 4 5 THE KING 6 7 V. 8 9 RW 10 11 12 13 Appearances: Mrs. Nicole Petit, Senior Crown Counsel, Office of the Director of 14 Public Prosecutions for the Prosecution 15 16 Mr. Crister Brady of Brady Law for the Defence 17 18 19 Before: Justice Cheryll Richards KC 20 21 Sentence Hearing: 24th July 2024 22 23 Sentence Judgment: 1st August 2024 24 25 26 27 28 Criminal Law – Sentencing - Section 132A, 134A and 228J of the Penal Code, Assault by Penetration, 29 Gross Indecency and Engaging in Sexual Activity in the Presence of a Child, Cayman Islands Sentencing 30 Guidelines. 31 32 33 34 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 2 of 13 SENTENCE JUDGMENT 1 2 PREAMBLE 3 4

¶ [1] Pursuant to s.12 of the Youth Justice Act (2021 Revision) and s.31 of the Criminal Procedure 5 Code (2021 Revision), this judgment has been anonymised to protect the identity of the victim. 6 It is ordered that there be no reporting which would lead to the identification of the victim in this 7 case. 8 9 INTRODUCTION 10 11

¶ [2] The defendant is before the Court for sentencing following his conviction after trial for three 12 offences on an amended Indictment. 13 14

¶ [3] Count One charges him with Assault by Penetration, contrary to section 132A of the Penal Code 15 (2019 Revision) (Specimen Charge). The particulars are that he on a date between the 1st day of 16 January 2018 and the 2nd day of July, 2021, at …, in the jurisdiction of the Cayman Islands, for the 17 purpose of obtaining sexual gratification, intentionally penetrated the vagina of VM, a child under 18 the age of 16 years, with his finger. The maximum penalty for this offence is 10 years 19 imprisonment. 20 21

¶ [4] Count Two charges him with Gross Indecency, contrary to section 134A of the Penal Code (2019 22 Revision) (Specimen Charge). The particulars are that he on a date between the 1st day of January 23 2018 and the 2nd day of July, 2021, at …, in the jurisdiction of the Cayman Islands, committed an 24 act of gross indecency with or towards VM, a child under the age of 16 years, by licking VM’s 25 vagina with his tongue. The maximum penalty for this offence is 12 years imprisonment. 26 27 Count Three charges him with Engaging in Sexual Activity in the Presence of a Child, contrary to 28 section 228J of the Penal Code (2019 Revision) The particulars are that he on a date between the 29 1st day of January 2018 and the 2nd day of July, 2021, at …, in the jurisdiction of the Cayman 30 Islands, for the purpose of obtaining sexual gratification, intentionally engaged in an activity that 31 was sexual in nature, namely masturbating his penis and ejaculating on to VM’s slippers while in 32 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 3 of 13 the presence of VM, a child under the age of 16 years. The maximum penalty for this offence is 1 12 years imprisonment. 2 3 THE FACTS 4 5

¶ [5] The victim was 15 years old at the time the offending came to light. The victim’s mother had 6 been living in the Cayman Islands for almost all of the victims life while the victim remained in 7 their home country with her grandparents. Sometime in 2016 or 2017 the victim came to the 8 Cayman Islands to reside with her mother and her mother’s husband, the defendant. 9 10

¶ [6] The victim’s evidence at trial was that shortly after her arrival on occasions when her mother was 11 away from the home at work the defendant began touching her inappropriately. The first time he 12 touched her inappropriately was when she was in Year 8 at her school. 13 14

¶ [7] As regards the three incidents charged as specimens, her evidence was that one afternoon after 15 school while her mother was at work, the defendant came into her room, told her to take off her 16 clothing, touched her breasts while she was naked and placed his finger inside her vagina. 17 18

¶ [8] On another occasion, he put his mouth on her private part. He was licking her belly and then he 19 went down on her private part, used his finger and opened it and put his mouth on her. Nobody 20 was there. This was always in the evening time because her mother was home at night. 21 22

¶ [9] On another occasion he masturbated in front of her and afterwards something came out of him, 23 and it went on her slippers. She ran out and started to vomit and went to wash out her slippers at 24 the back of the house. 25 26

¶ [10] She said that his conduct continued over and over. The last incident was after Father’s Day or 27 Mother’s Day. It was when she was going to school in the morning and her mother did not come 28 home that night because of work. She said that she took pills to try to kill herself. 29 30

¶ [11] Matters came to light when her teacher at school noticed that her behaviour had changed. Her 31 mother also noticed that her behaviour had changed and spoke to the Vice Principal of the School 32 the Vice Principal spoke to the victim and then reported the matter to the School Counsellor. 33 34 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 4 of 13 VICTIM IMPACT REPORT 1 2

¶ [12] The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact Report 3 dated 30th May 2024, (“VIR”). The Probation Officer states that the anticipation of the victim in 4 coming to live here in 2016 or 2017 was that the relationship with her mother would be 5 strengthened. When the incidents began she did not confide in her mother because she did not 6 know her well and having only recently joined the family unit did not want to be the cause of 7 breaking it up. 8 9

¶ [13] In describing the impact of the offence to the Probation Officer, the victim shared that the 10 offences took place over an extended period of time. As they continued she found it difficult to 11 cope with the stress so she tried to overdose on prescribed medication as she wanted to be done 12 with life. 13 14

¶ [14] The victim also reported that after the matter came to light, her mother did not want to be 15 involved, and she felt that her mother did not give her any emotional support. The victim felt that 16 she was to be blamed while it continued as she did not report it to the authorities. The Officer 17 further states that the victim shared that she also became afraid of the dark and began sleeping 18 with the light on throughout the night. This caused some tension with her mother who was 19 concerned about the electricity bill. After the victim returned to her native country she found it 20 difficult to sleep and would walk around the house at nights. She was withdrawn and was not 21 eating or talking to her grandparents. 22 23

¶ [15] The Officer’s view is that the defendant’s actions impacted the victim at all levels. She had not 24 been close to her mother and was hoping to have a closer relationship with her. Instead, after the 25 incidents were reported their relationship deteriorated. Her relationship with her mother 26 continues to be tense and there is no communication with her older sister to whom she had 27 reported the first incident. 28 29

¶ [16] The Officer also notes that the victim’s education was interrupted when she migrated back to her 30 home country. She had to repeat a year of high school. She experienced a loss of self-identity. 31 There were mental health issues and the inability to function in the way she used to prior to the 32 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 5 of 13 offence. The impact of this was compounded by the fact that she had very limited emotional and 1 social support. 2 3 ANTECEDENT HISTORY 4 5

¶ [17] The defendant has no previous convictions recorded against him. 6 7 SOCIAL INQUIRY REPORT 8 9

¶ [18] The DCR has provided a Social Inquiry Report in respect of the defendant dated 18th June 2024, 10 (“SIR”). The Court has read the report in its entirety and takes into account everything said 11 therein in favour of the defendant. He is 51 years old. He is re-married with two adult children 12 who are resident overseas. 13 14

¶ [19] He describes a childhood in a loving and supportive environment although there were economic 15 problems for the family. He attended school up to year 10 but was unable to complete his studies 16 due to the financial situation of his family. After leaving school he was employed as a farm 17 worker until he migrated to the Cayman Islands in 2007 for work purposes. He has lived here 18 ever since. He worked up until the time of his arrest for these offences in 2021. He is actively 19 involved in the life of his church. Following the allegations against him, his relationship with the 20 mother of the victim, his second wife with whom he had been married for 16 years ceased when 21 she left the home to leave the country. He has recently re-married since April 2024. 22 23

¶ [20] A community contact who has known him for over ten years describes him as a respectful person, 24 hardworking and jovial who is heavily involved as a volunteer in the church. The offending is 25 believed to be out of character for the defendant. 26 27

¶ [21] The Probation Officer states that the defendant expressed no remorse towards the victim and 28 states that “her mother forced her to tell these lies”. 29 30

¶ [22] The Officer notes that the offences appear to be outside of the defendant’s general character and 31 upbringing and that from all the information received he was raised in a stable household with 32 strong Christian fundamentals and values. 33 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 6 of 13

¶ [23] The defendant was assessed to be at low risk of sexual re-offending and at medium risk of general 1 re-offending. It is recommended that should a custodial sentence be imposed that the defendant 2 be assessed for inclusion in the Sex Offender Treatment Programme. 3 4 THE SUBMISSIONS 5 6

¶ [24] Both Counsel referred the Court to the Cayman Islands Sentencing Guidelines for the offences 7 of Assault by Penetration and Gross Indecency. There are no specific guidelines for the offence 8 of Engaging in Sexual Activities in the Presence of a Child. 9 10

¶ [25] For the offence of Assault by Penetration the Guidelines provide for three categories of Harm 11 12 Category 1 Harm has one factor: - 13 • The extreme nature of one or more category 2 factors may elevate to category 1. 14 15 For Category 2 Harm, the factors are 16 • Severe psychological or physical harm 17 • Penetration using large or dangerous objects 18 • Additional degradation /humiliation 19 • Abduction 20 • Prolonged detention/sustained incident 21 • Violence or threats of violence beyond that which is inherent in the offence 22 • Forced uninvited entry into victims’ home 23 • Victim is particularly vulnerable due to age and personal circumstances. 24 25

¶ [26] Culpability A factors include abuse of trust. 26 27

¶ [27] The prosecution submits that the Harm is at the level of Category 1 because of the extreme impact 28 caused by a combination of Category 2 factors, namely the impact on the victim as a result of the 29 incidents and her vulnerability due to her age. It is submitted that the Culpability is at level A 30 because of the abuse of trust. 31 32 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 7 of 13

¶ [28] The starting point for a Category 1, Culpability A offence is 9 years custody with a range of 1 sentence of 8 to 10 years. 2 3

¶ [29] The defence disagree with the submission of the prosecution. Defence Counsel submits that the 4 offending is at the level of Category 2 Harm and Culpability A. It is accepted that this is a 5 Culpability A case because of the abuse of trust, given that the defendant was her stepfather, but 6 it is submitted that the Harm is not at the extreme level. For a case at the level of Category 2 7 Harm and Culpability A, the starting point is 7 years custody with a range of sentence of 5 to 8 8 years. 9 10

¶ [30] As to the offence of Gross Indecency, the prosecution submits that this is also a case of Category 11 1 Harm because of the extreme impact of a combination of Category 2 factors. It is said to be 12 Culpability A because of the abuse of trust. The starting point is 10 years custody with a range 13 of sentence of 8 to 12 years. 14 15

¶ [31] Defence Counsel submits that the offending falls into the lower level of Category 2 Harm and 16 Culpability A with a starting point of 8 years and a range of sentence of 6 to 9 years. 17 18

¶ [32] Defence Counsel asks the Court to consider the degree of proportionality to the gravity of the 19 offending and the totality principle. Counsel referred the Court to a number of cases which are 20 set out below. Counsel submits that while each case will be looked at in terms of the facts and 21 circumstances relative to each, the age of the victims, and whether pleas were entered thereby 22 avoiding a trial and the personal circumstances of each offender, these cases may be of assistance 23 in arriving at a sentence in this case. 24 25

¶ [33] Counsel submitted that in the case of R v DeAnthony Russell1, the defendant touched the bottom 26 of an eight-year-old female for a few short seconds and masturbated. This occurred in the victim’s 27 home, while there were other children in the home. He was related to the victim. He was not of 28 previously good character and was on probation at the time. He had committed other offences 29 unrelated to the sexual assault whilst on probation. Following trial, he was sentenced to 3 years’ 30 imprisonment by the Grand Court. 31 1 Grand Court Ind. 52/2021- Unreported Judgment dated 26th May 2022 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 8 of 13

¶ [34] In R v Tony O’Connell Ebanks2, the defendant touched and penetrated the naked vagina of a 1 five-year-old child with his finger. The defendant was convicted following a trial and was 2 sentenced to 8 years’ imprisonment. There had been evidence of significant psychological impact 3 on the five-year-old victim. The defendant had a number of previous convictions for sexual 4 offences including a conviction for rape in 2009 and for sexual assault on an eleven year old in 5

¶ [2016] 6 7

¶ [35] In R v Elbert McField3, the defendant touched the breast of the fifteen-year-old complainant who 8 was his stepdaughter while she was in her bed in the home which he shared with the victim’s 9 mother. He had no previous relevant convictions. Following an initial not guilty plea and later a 10 guilty plea, he was sentenced to 18 months imprisonment. 11 12

¶ [36] In R v Valiysveettil Josepeter4 the defendant touched the vagina of a six-year-old child, over her 13 clothing while pretending to lift her with his hand between her legs. He was sentenced to 8 14 months’ imprisonment. 15 16

¶ [37] In R v Henry Dagala Jabines5 in 2019, the defendant was charged under section 145(1) of the 17 Penal Code (2019 Revision) with Indecent Assault against a male child whose testicles he had 18 squeezed after approaching him in a bathroom at a hotel on the Brac, after showing him 19 pornographic images on his phone. The victim had gone into the bathroom to escape mosquitos 20 while waiting on his parents and had gone to sit in a stall in the hotel bathroom and was playing 21 on his phone. The defendant had changed his plea on the day of trial and received a 20% discount. 22 He was sentenced to 10 months imprisonment. 23 24

¶ [38] Counsel noted that in sentencing Carter J(Actg.) considered the United Kingdom Sentencing 25 Guidelines at the time and referenced the provisions which state that: ‘In determining the gravity 26 of an offence of indecent assault or other sexual offence, the sentencing court should take account 27 of the same general considerations as in the case of rape. Those are, (i) the degree of harm to 28 the victim (ii) the level of culpability of the offender and (iii) the level of risk posed by the offender 29 2 Grand Court Ind. 40/2021- Unreported Judgment dated 17th February 2022 3 Summary Court Charge 00338/2020 Unreported Judgment dated 7th April 2021 4 Grand Court Ind. 16/2018- Unreported Judgment dated 24th July 2019 5 Grand Court Ind. 24/2019- Unreported Judgment dated 3rd October 2019 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 9 of 13 to society - the offender’s age and the fact that the offender might only be a danger to the members 1 of the family with whom he had the relationship would be relevant in determining whether there 2 was a reduced risk of offending’. 3 4

¶ [39] In R v Conrad Clint Mendoza6, the defendant was sentenced to 4 years following trial by judge 5 alone where the defendant was convicted of sexually touching the complainant over a period of 6 some eight months, including on her bare breasts. He was a close friend of the complainant’s 7 family and in a position of trust. 8 9 SUBMISSIONS IN MITIGATION 10 11

¶ [40] Counsel for the defence submitted that the defendant has had this case hanging over his head 12 since 2021 and has been faithful in attending Court. It has taken a toll on him. He has been 13 unemployed since his arrest. Counsel submits that no sentence that this Court can impose could 14 be worse than the embarrassment and “fall from grace that the defendant endured since his 15 arrest, charge and conviction”. 16 17

¶ [41] Counsel said that the defendant will face significant difficulties in the foreseeable future in terms 18 of his ability to travel and work. He faces almost certain deportation after his sentence and a 19 return to his home country where he has not lived in 20 years. 20 21

¶ [42] Counsel asked the Court to consider that the defendant will never be able to offend in these 22 Islands again and that a lengthy sentence will not have the same effect that it would have had if 23 the defendant were to be released to continue to live in this country. 24 25

¶ [43] Counsel submitted that the defendant is 51 years old and of good character. There is shock and 26 surprise at his conviction among those who know him. He has maintained his innocence 27 throughout the case and continues to deny the offences for which he has been charged. Counsel 28 submits that while the Court will no doubt be concerned about the defendant’s denial of the 29 offending, absence of remorse ought not to be treated as an aggravating factor. 30 31 6 Grand Court Ind. 92/2021- Unreported Judgment dated 2nd December 2022 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 10 of 13

¶ [44] Counsel submits that while a custodial sentence will be inevitable, the Court is asked to balance 1 justice with mercy for the defendant who is convicted of a serious offence but who has never 2 been before a court anywhere before. Counsel said that his life has been on hold for the last three 3 years and he craves finality to these proceedings so that he can begin to rebuild his life and take 4 stock of his future. 5 6 THE SENTENCE 7 8

¶ [45] This defendant, who was in a position of trust towards the young victim, being her stepfather 9 carried out multiple sexual assaults on her person. Instead of parental protection of her, it was the 10 very opposite. As described by the victim, he was alert to opportunities when her mother was 11 away from home. These included occasions when the victim arrived home from school in the 12 afternoons when no one else was home. At trial the victim’s despair and confusion was evident. 13 She said that these incidents would stop during her monthly cycles, and they would start again 14 just after. She did not know how he knew. Plainly the defendant must have been watching her 15 in the home with some alertness and criminal intent. This was not a one-off incident but continued 16 over a period of time such that the victim was driven to attempt suicide, afraid to sleep in the 17 dark, trapped in a cycle of abuse where she at her young age could see no way out other than to 18 end her life. A more serious case of betrayal of trust would be difficult to find. 19 20

¶ [46] The offending is serious and firmly passes the custody threshold. The defendant’s low risk of 21 sexual reoffending is noted as are all his personal circumstances. Everything said and written in 22 his favour is taken into account. In the Court’s view there is nothing in those personal 23 circumstances which would make a sentence of immediate custody avoidable. 24 25

¶ [47] A number of the cases cited by defence Counsel pre-dated the Guidelines or are clearly 26 distinguishable. Some of these were one-off incidents, did not involve breaches of trust and the 27 impact of the offences on those victims is not clear. Here there was repeated offending in respect 28 of a stepchild with evident severe psychological consequences. 29 30

¶ [48] In respect of the first offence of Assault by Penetration, the Court accepts the submission of the 31 defence that the Harm is at the level of Category 2, severe psychological or physical harm. In the 32 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 11 of 13 Court’s view to fall into Category 1, it is considered that some more definitive evidence may well 1 be needed to show that the harm was beyond severe and at the level of extreme. 2 3

¶ [49] The level of Culpability is at level A for the reason agreed by both Counsel. The starting point is 4 7 years or 84 months custody. There are no aggravating factors. The defendant’s lack of remorse 5 is not such a factor. 6 7

¶ [50] In mitigation, the Court takes into account everything said and written in the defendant’s favour. 8 He has no previous convictions and is of good character. His personal circumstances are noted. 9 By all accounts he was a hard worker through to the date of his arrest both at his regular work 10 and as a volunteer in his church community. This conviction will change his life in that it may 11 affect his right to live and work in the Cayman Islands and lead to his return to a country where 12 he has not lived for 20 years. All the circumstances taken together will serve to reduce his 13 sentence by 18 months. An additional factor is taken into account. This is the extent of the delay 14 between his arrest and now. This is not the fault of the defendant. Very likely this period of 15 waiting would have been extremely stressful for him. An additional reduction of 6 months is 16 afforded to him as a result of this. 17 18

¶ [51] The sentence on Count One is therefore one of 60 months. 19 20

¶ [52] For the offence of Gross Indecency, the Court accepts the submission of the defence that the 21 Harm is at the level of Category 2, severe psychological or physical harm. The culpability is at 22 Level A. The starting point is 8 years or 96 months custody. Similar decisions are made for 23 mitigating factors, 18 months and for delay 6 months for a total sentence of 72 months. 24 25

¶ [53] In respect of the third offence of Engaging in Sexual Acts, while there is a difference in the nature 26 of the offending the maximum sentence is the same as for the offence of Gross Indecency, one 27 of 12 years. The Court therefore applies the same guideline factors, starting point and mitigating 28 factors for a total sentence of 72 months. 29 30

¶ [54] Paragraph 6 of the Cayman Islands Sentencing Guidelines with respect to concurrent and 31 consecutive sentences provides as follows: 32 33 “6.1 Concurrent Sentences 34 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 12 of 13 It is wrong in principle to impose sentences to run consecutively where those 1 offences, though distinct in law, arose out of a single act so that the overall 2 criminality for the offender can be represented by concurrent sentences. 3 4 Concurrent sentences will ordinarily be appropriate where: 5 a) Offences arise out of a related incident or facts. 6 b) There is a series of offences of the same or similar kind especially 7 when committed against the same victim. 8 Where concurrent sentence are passed, the sentence should reflect the overall 9 criminality involved. The sentence should be appropriately aggravated by the 10 presence of the associated offences and thus the court may increase sentence for 11 the principal offence to reflect the gravity of conduct: 12 13 6.2 Consecutive Sentences 14 Consecutive sentences will ordinarily be appropriate where: 15 a. Offences arise out of unrelated facts or incidents. 16 b. Offences are of the same of similar kind but where the overall 17 criminality will not sufficiently be reflected by concurrent 18 sentences for example: 19 i. Where offences are committed against different victims. 20 ii. Where sexual offences or domestic violence are 21 committed against the same individual. 22 iii. Where the offender commits the same or similar offence 23 after being arrested for the original offence.” 24 25

¶ [55] In this case the Court considers it appropriate that the sentences run concurrently. 26 27

¶ [56] Consideration has been given to the totality principle and to whether the proposed sentence of 72 28 months is proportionate to the gravity of the offending. The Court considers that it is. This was 29 repeat offending over a prolonged period and was a breach of trust. The primary aims of 30 sentencing in this case are punishment, deterrence and rehabilitation. While in custody as 31 recommended by the Probation Officer, the defendant is to receive assessment for the Sexual 32 Offender Treatment programme. 33 34

¶ [57] The sentences are therefore 60 months on Count One, 72 months concurrent on Count Two and 35 72 months concurrent on Count Three. Time served is to be taken into account. 36 37 38 39 40 240801 The King v RW: Ind. 92 of 2022. Coram Richards J, KC – Sentence Judgment Page 13 of 13 SEXUAL HARM PREVENTION ORDER 1 2

¶ [58] The prosecution applies for a Sexual Harm Prevention Order (“SHPO”) which is not opposed by 3 the defence. The location of the victim is a factor that has been considered. Defence Counsel 4 noted that while such an order is inevitable, it is unlikely to have the effect it would otherwise 5 have, were the defendant to be eventually released to live and work here. 6 7

¶ [59] This Court is satisfied that a SHPO is necessary for the protection of the victim and children and 8 makes an order in terms of the draft as amended for a period of five years following the 9 defendant’s release from Prison. The defendant is advised of the nature of the order and the 10 possible consequences of any breach. 11 12 Dated this the 1st August 2024 13 14 The Hon. Justice Cheryll Richards KC 15 Judge of the Grand Court 16