R v Travis Arlington Ebanks - Sentence Judgment

¶ 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 1 of 14 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 4 of 2023 4 5 6 7 R 8 9 V. 10 11 TRAVIS ARLINGTON EBANKS 12 13 14 Appearances: Mr. Scott Wainwright, Assistant Director of Public Prosecution, 15 Office of the Director of Public Prosecutions for the Prosecution 16 17 Mrs. Prathna Bodden of Samson Law for the Defence 18 19 Before: The Hon. Justice Cheryll Richards KC 20 21 Submissions Heard: 4th April 2024 22 23 Sentence Judgment: 11th April 2024 24 25 26 27 Criminal Law - Rape, Sentencing, Application of the Cayman Islands Sentencing Guidelines 28 29 30 31 32 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 2 of 14 SENTENCE JUDGMENT 1 2 3 PREAMBLE 4

¶ [1] Section 12 of the Youth Justice Act (2021 Revision) states: 5 “12. (1) In relation to any proceedings in any court, such court may direct 6 [and this court so directs] that- 7 (a) no published report of or comment on the proceedings shall 8 reveal the name, address or school, or include any 9 particulars calculated to lead to the identification, of any 10 young person concerned in the proceedings, either as being 11 the person by, against or in respect of whom the proceedings 12 are taken, or as being a witness in the proceedings; and 13 (b) no picture shall be published as being or including a picture of 14 any young person so concerned in the proceedings. 15 (2) Whoever publishes any matter in contravention of subsection (1) is 16 guilty of an offence and liable on summary conviction, in respect of 17 each such offence, to a fine of five thousand dollars or to 18 imprisonment for six months. 19 20

¶ [2] Section 31 of the Criminal Procedure Code (2021 Revision) states as follows: 21 “Anonymity of complainants in rape etc. cases: 22 “31. (1) After a person is accused of a rape offence, no matter likely 23 to lead members of the public to identify a woman as the 24 woman against whom the offence is alleged to have been 25 committed shall be published in a written publication 26 available to the public or be broadcast, except as 27 authorised by a direction of the court. 28 … 29 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 3 of 14 (5) If any matter is published or broadcast in contravention of 1 subsection (1), the following persons — 2 (a) in the case of a publication in a newspaper or 3 periodical, the proprietor, editor and publisher of 4 the newspaper or periodical; 5 (b) in the case of any other publication, the person who 6 publishes it; 7 (c) in the case of a broadcast, any person having 8 functions, in relation to the programme in which it 9 is made, corresponding to those of an editor of a 10 newspaper, 11 commit an offence and are each liable on summary 12 conviction to a fine of one thousand dollars.” 13 14

¶ [3] For the avoidance of doubt: It is the Court’s view that the charges against this defendant, 15 based on the particulars of the offence, fall within this section of the law and therefore it 16 is ordered that there be no identification of the victim in this case. 17 18

¶ [4] In pursuance of the sections of the Acts, this judgment has been anonymised to protect 19 the identity of the victim. 20 INTRODUCTION 21

¶ [5] The defendant is before the Court for sentencing following his convictions after trial for 22 two offences of Rape contrary to s.127 (1) of the Penal Code (2022 Revision). The 23 maximum sentence for this offence is life imprisonment. 24 25 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 4 of 14

¶ [6] The particulars of Count 1 are that he on a date unknown in October 2022 in the vicinity 1 of Bay Town Plaza, George Town, Grand Cayman, Cayman Islands had carnal 2 knowledge of [X], without her consent. 3 4

¶ [7] The particulars of Count 2 are that he on or about the 8th November 2022 in the vicinity 5 of Margaritaville Hotel, West Bay Road, George Town, Grand Cayman, Cayman Islands 6 had carnal knowledge of [X], without her consent. 7 8

¶ [8] The facts in summary are these. At the material times the complainant was 11 or 12 years 9 of age. She met the defendant on social media about two years before the incidents. Over 10 the two-year period, at times she blocked him from her social media accounts. He created 11 new accounts each time she blocked him and would re-engage with her using a different 12 media account name. Her evidence was that she knew that it was the same person. He 13 told her that he was 14 years of age. He asked her to meet him and told her that he would 14 tell her family and friends bad things about her if she did not. One evening in October 15 2022, he picked her up from her home in a motor vehicle. He drove her to a parking lot 16 adjacent to a business premises on the waterfront in George Town and there had vaginal 17 intercourse with her in the back of the vehicle. Her evidence was that she was crying and 18 telling him to stop. He did not. 19 20

¶ [9] On a second evening the night before her 12th birthday in November 2022, he again 21 picked her up in a vehicle and took her to a second location off West Bay Road where he 22 had vaginal sexual intercourse with her in the back of the vehicle. 23 24 25 26 27 28 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 5 of 14 VICTIM IMPACT STATEMENT 1 2

¶ [10] The victim has provided a Victim Impact Statement dated 20th September 2023. In this 3 Statement she states: - 4 “Since what happened to me, I have found it really hard to deal with. 5 6 It’s been hard to focus, at school in particular, as most of the time when I have been 7 in class I wouldn’t be paying attention as I would be zoned out thinking about 8 everything and what was going to happen. This made me feel stressed and anxious. 9 10 I feel relieved that Travis will go to prison for what he did as it means that he can’t 11 do it to anyone else. 12 13 At first I thought I was in the wrong and that I did something wrong and I would be 14 in trouble for it, but I realise now that it was not my fault, it was his fault. 15 16 What happened changed my perspective over a lot of things, mainly about trusting 17 people; I don’t really like to trust people anymore. I trusted Travis at the time 18 because he made me feel that I could trust him, but he broke my trust by doing what 19 he did and now I don’t want to trust anyone in case they break that too. 20 21 I have felt stressed and worried about court and what that would be like and I was 22 really anxious as the court date got close. 23 24 I am also anxious now about what things will be like moving forward now that the 25 court case is over. I feel that what happened has changed my relationship with my 26 mom and dad, I am not allowed out to see friends like I was before as they are 27 worried about me, and I feel that this has changed my relationships with my friends 28 too as I don’t see them as much as I did before. I am worried that this is what my 29 life will continue to be like now. 30 31 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 6 of 14 I just want things to return to normal.” 1 2 ANTECEDENT HISTORY 3 4

¶ [11] The defendant is now 34 years old. He has an antecedent history of sixteen previous 5 convictions. The most recent was in October 2021 when he was sentenced to thirteen 6 weeks imprisonment suspended for two years for offences of dishonesty. There are no 7 convictions for offences of a similar nature to the instant offences. 8 9 SOCIAL INQUIRY REPORT 10 11

¶ [12] The defence did not seek to have a Social Inquiry Report. Defence Counsel indicated on 12 the defendant’s behalf that she would provide details as to his background and history. 13 14 THE SUBMISSIONS 15 16

¶ [13] The prosecution has referred the Court to the leading case of Dilbert v R; Samuels v R.1 17 In that case the Cayman Islands Court of Appeal stated that while the appropriate starting 18 point when sentencing for an offence of rape with no aggravating or mitigating factors 19 would be between 10 to 12 years, rape of a child or vulnerable victim could warrant an 20 uplift of the starting point to 15 years or more. 21 22

¶ [14] Both Counsel referred the Court to the Cayman Islands Sentencing Guidelines for the 23 offence of Rape. These reflect the guidance from the Court of Appeal in the cited case. 24 There is disagreement as to the appropriate categorisation for this offending. 25 26 1 [2010] 1 CILR 10 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 7 of 14

¶ [15] The prosecution submits that the Harm is at level 2 because each offence lasted for about 1 twenty minutes and thus can properly be described as sustained. Reliance is placed on 2 the case of R v Mamaliga2. However, the prosecution accepts that this case involved 3 particular circumstances which are quite different from the instant offending. In the cited 4 case there were two offenders, and the victim was restrained with ties and subjected to 5 prolonged violence. The Appellate Court noted that it fell into Category 2 by reason of a 6 number of factors including the extreme nature of one or more factors. There was 7 violence or threats of violence which went beyond that which was inherent in the offence. 8 9

¶ [16] As to culpability, the prosecution submits that the offending in the instant case is at the 10 level of Category A because it involved a significant degree of planning. Counsel notes 11 that the defendant first contacted the victim in 2020, two years before the incidents and 12 that his behaviour included creating new social media accounts when blocked by her and 13 making threats to her. Counsel’s submission is that although this behaviour might more 14 readily be described as grooming or manipulation, it nonetheless constitutes a 15 “significant degree of planning”. Counsel for the prosecution also submits that the 16 defendant arranged to borrow the vehicles of his employer in order to pick up the victim 17 at the agreed locations. 18 19

¶ [17] Counsel relies on the case of R v. Teklu3 for the submission that the planning need not be 20 sophisticated in order to be deemed significant. There is also reference to the case of R 21 v. Dogra4 for the submission that what amounts to a significant degree of planning has 22 to be a matter of judgement based upon all the facts of the case. In that case the Appellate 23 Court considered an appeal against sentence where the factual circumstances were that 24 the appellant had been sitting on a wall when the victim was walking past. The trial Judge 25 had concluded for the purpose of sentence that the appellant was there in waiting to speak 26 2 [2018] EWCA Crim 515 3 [2017] EWCA Crim 1477 4 [2019] EWCA Crim 145 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 8 of 14 to women on their way home. The learned Judge found that there was a significant degree 1 of planning. 2 3

¶ [18] The Appellate Court said: - 4 5 “"Significant" is not an absolute concept. In the context of this offence – a sexual 6 assault that can be committed without implements or tools or any sophisticated 7 planning – we consider that lying in wait, in a position that is perfectly designed to 8 prey on lone young women (particularly given the timing) who have had a night out 9 and are on their way home, did involve a significant degree of planning in context. 10 The judge was amply entitled in those circumstances to conclude that this was a 11 category 2A offence.” 12 13

¶ [19] Under the Cayman Islands Sentencing Guidelines Category 2 A offences have a starting 14 point of 20 years custody with a range of sentence of 15 to 24 years. 15 16

¶ [20] The defence submit that this is a Category 2 B offence. It is accepted that it can properly 17 be characterised as level 2 Harm because of the victim’s age but defence Counsel submits 18 that it cannot properly be described as a sustained attack. Counsel disagrees that there 19 was a significant degree of planning. It is submitted that to the contrary this was no more 20 than an agreed meeting. 21 22

¶ [21] Category 2 B offences have a starting point of 15 years with a range of sentence of 10 to 23 19 years. 24 25 AGGRAVATING FACTORS 26 27

¶ [22] The prosecution submits that there are two aggravating factors in this case, namely, the 28 timing of the offence being at night and the threats made by the defendant to the victim. 29 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 9 of 14 1

¶ [23] Counsel for the defence submits that the timing ought not to be treated as an aggravating 2 factor, that it adds nothing to the offence. Secondly, that the threats to the victim are 3 properly reflected in the categorisation of the offence due to her vulnerability. 4 5 SUBMISSIONS IN MITIGATION 6 7

¶ [24] Counsel for the defence has provided to the Court, an extensive history for the defendant. 8 He was 33 years old at the material time and has no relevant previous convictions. He 9 has one child, a daughter who is resident overseas. He has limited phone contact with her 10 and has not seen her in person since 2015. 11 12

¶ [25] The defendant was born and grew up in the Cayman Islands as part of a large family. His 13 father did not reside with the family, but the defendant was in regular contact with him. 14 There were no childhood or drug and alcohol related issues. The defendant completed 15 high school with a diploma in 2006. He has held regular employment in the maintenance 16 or mechanical fields throughout his adult life. 17 18

¶ [26] His life circumstances changed for the worse when he had problems with his long-term 19 girlfriend. He became depressed, demotivated and began to have feelings of 20 hopelessness. He lost weight and found it difficult to cope emotionally. He was required 21 to leave the family home and became a loner. 22 23

¶ [27] Since being on remand, he has not wanted his mother to see him in Prison clothes and 24 his family have abandoned him. He does not have a support network. He feels as if he 25 has lost everything. These issues have not been and continue to be unaddressed. 26 27 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 10 of 14

¶ [28] Nevertheless, he has been trying to have some structure in his life by engaging in the 1 community in sporting activities. Since being on remand, he has made rehabilitation 2 efforts by attending the Chapel at the Prison regularly and completing several courses 3 and programmes such as ‘Tools for Success’ ‘Prisoners Journey’ and “Sycamore Tree’. 4 Counsel said that there is hope for him, he has already been impacted by being on remand 5 and perhaps when he has had any necessary treatment this will assist him. 6 7

¶ [29] The defendant is said to be remorseful for what has happened to the victim and sorry for 8 what she has endured. 9 10

¶ [30] A character reference has been provided from Mr. David Wight dated 14th March 2024. 11 It reads as follows: - 12 13 “This is to confirm that I have known Travis Ebanks for over 10 years, as our family 14 grew up through the years as close friends with Travis’s family. 15 16 I have always found Travis Ebanks to be a hardworking, and a very pleasant 17 person. 18 19 …” 20 21

¶ [31] The defendant had asked for another adjournment of his sentence hearing to obtain 22 additional references. Nothing further has been forthcoming. He was granted an 23 adjournment on three previous occasions. Defence Counsel has opted to proceed with the 24 hearing. 25 26 27 28 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 11 of 14 THE SENTENCE 1 2

¶ [32] It is accepted as defence Counsel submits that the offending is at the level of Category 2 3 Harm because the victim is particularly vulnerable due to her age. Because of her age, 4 she was manipulated and groomed. This was rape of a child under the age of 12 years 5 and not of an adult. 6 7

¶ [33] As to the level of culpability, the Court’s view is that it is at the level of Culpability B. A 8 significant degree of planning is raised but the prosecution recognises that there is a 9 difference between grooming and manipulation and planning for the offences in October 10 2022 and November 2022. 11 12

¶ [34] Some guidance is provided by the Archbold Sentencing Guidelines 2022, paragraph 13 1056 as to culpability. This states: - 14 15 “In R v Dogra [2019] EWCA Crim 145; [2019] 2 Cr. App. R. (S.) 9 however, 16 the court held that the words “significant planning” did not require further 17 definition. Each case had to be considered against its own facts. However, 18 some assistance might be afforded by looking at the other matters of 19 culpability that placed an offence within Category A. Those matters 20 included: that an offender had acted with others to commit the offence; that 21 there was use of alcohol or drugs on the victim to facilitate the offence; that 22 there had been previous violence against the victim; that the offence was 23 committed in the course of burglary; or that the offence was motivated by 24 or demonstrated hostility for particular reasons. While those were all self- 25 contained issues that raised culpability, they were matters that provided a 26 clear indication of what might amount to raised culpability and might give 27 some indication of the threshold envisaged. In cases of sexual abuse, there 28 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 12 of 14 might, as a matter of inevitability, be some planning, such as the locking of 1 a door on a victim, or a short pursuit, but he determination of when a degree 2 of planning reached that higher level of culpability denoted by a significant 3 degree of planning had to be a matter of judgement based on all the facts of 4 the case.” 5 6

¶ [35] The conclusion is that the starting point for this offence is 15 years custody. 7 8

¶ [36] The timing of the offence is considered to be an aggravating factor. The timing meant 9 that the child was cajoled into leaving the protection and safety of her home at an hour 10 shortly before midnight. She was on the streets effectively unsupervised by anyone of 11 good intent. 12 13

¶ [37] Threats were made to the victim, but they are not treated as a separate aggravating factor 14 in order to avoid possible double counting. The nature of the threats was particularly 15 impactful because of the vulnerability of the victim due to her age. Prosecuting Counsel 16 submitted that if grooming does not amount to significant planning, then it ought to be 17 treated as an aggravating factor. For the same reason to avoid double counting this 18 element is not treated in this way. 19 20

¶ [38] From a starting point of 15 years the sentence is increased by 6 months for the single 21 aggravating factor of timing. 22 23

¶ [39] In mitigation the Court takes into account everything said and written in the defendant’s 24 favour. He has no relevant previous convictions and is remorseful about what the victim 25 has suffered. There is some emotional trauma throughout his adult life and separation 26 from his family which has affected him. He has made efforts at rehabilitation and has 27 undertaken various courses at the Prison which is to his credit. He has been gainfully 28 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 13 of 14 employed in the course of his adult life and his character reference describes him as a 1 hardworking individual. The sentence is reduced by reason of the mitigating factors by 2 2 years imprisonment to one of 13 ½ years’ imprisonment on each count. 3 4

¶ [40] Consideration has been given to the proportionality of the proposed sentence to the 5 offending and to the aims of sentencing in this case. The offending is serious and clearly 6 passes the custody threshold. There is nothing in his personal circumstances which would 7 make an immediate custodial sentence avoidable. Not only did he target a child, he 8 pursued her. Even when she expressed disinterest by disengaging on social media, he 9 continued his pursuit. He lied to her about his age and manipulated her such that she felt 10 that she had to make him feel better by submitting to the sexual act and comforting him 11 because he had a bad day. He threatened to talk about her to her family and friends. His 12 conduct was in callous disregard for her welfare, he being a person almost three times 13 her age. The serious impact on the victim is detailed in the Victim Impact Statement. The 14 Court concludes that the proposed sentence is proportionate to the gravity of the 15 offending. The aims of sentencing in this case must be punishment, deterrence and 16 rehabilitation. 17 18

¶ [41] These were a series of offences of the same kind in respect of the same victim. It is 19 appropriate that the sentences on both counts run concurrently to each other. 20 21

¶ [42] The sentence is therefore 13 and 1/2-years imprisonment on each count to run 22 concurrently. Any time served is to be taken into account. 23 24

¶ [43] It is recommended that the defendant be assessed, and such treatment as is deemed 25 necessary by the appropriate professionals be afforded to him. 26 27 28 29 240411 R v Travis Arlington Ebanks: Ind. 4 of 2023. Coram Richards J, KC - Sentence Judgment Page 14 of 14 SEXUAL HARM PREVENTION ORDER 1 2

¶ [44] The Prosecution has applied for a Sexual Harm Prevention Order (“SHPO”) which is not 3 opposed by the defence. An amended draft has been agreed. The Court is satisfied that 4 such an order is necessary for the protection of the victim and children. 5 6

¶ [45] The Order is made in terms of the agreed draft to take effect for 10 years following the 7 defendant’s release from Prison. 8 9 Dated this the 11th April 2024 10 11 The Hon. Justice Cheryll Richards KC 12 Judge of the Grand Court 13