R v Ferron (Francis Fernando) - Sentence Judgment

¶ _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 1 of 14 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 3 of 2021 3 4 THE QUEEN 5 V. 6 FRANCIS FERNANDO FERRON 7 8 Appearances: Mr. Neil Kumar for the Prosecution 9 Mr. Oliver Grimwood for the Defence 10 Before: Justice Cheryll Richards Q.C. 11 Sentence Hearing: 15th October 2021 12 Judgment: 15th October 2021 13 14 HEADNOTE 15 Criminal Law - Section 228L of the Penal Code - Abuse of Trust 16 - Mandatory minimum sentence - Whether proportionate to the offending. 17 18 19 SENTENCE JUDGMENT 20 21 22 23 24 25 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 2 of 14 PREAMBLE 1

¶ [1] Section 12 of the Youth Justice Act (2019 Revision) states: 2 “12. (1) In relation to any proceedings in any court, such court may direct 3 [and this court so directs] that- 4 (a) no published report of or comment on the proceedings shall 5 reveal the name, address or school, or include any 6 particulars calculated to lead to the identification, of any 7 young person concerned in the proceedings, either as being 8 the person by, against or in respect of whom the 9 proceedings are taken, or as being a witness in the 10 proceedings; and 11 (b) no picture shall be published as being or including a 12 picture of any young person so concerned in the 13 proceedings. 14 (2) Whoever publishes any matter in contravention of subsection (1) is 15 guilty of an offence and liable on summary conviction, in respect of 16 each such offence, to a fine of five thousand dollars or to 17 imprisonment for six months. 18 19

¶ [2] Section 31 of the Criminal Procedure Code (CPC) (2019 Revision) states as follows: 20 “Anonymity of complainants in rape etc. cases: 21 “31. (1) After a person is accused of a rape offence, no matter likely 22 to lead members of the public to identify a woman as the 23 woman against whom the offence is alleged to have been 24 committed shall be published in a written publication 25 available to the public or be broadcast, except as 26 authorised by a direction of the court. 27 (2) … 28 (3) …. 29 (4) … 30 (5) If any matter is published or broadcast in contravention of 31 subsection (1), the following persons — 32 (a) in the case of a publication in a newspaper or 33 periodical, the proprietor, editor and publisher of 34 the newspaper or periodical; 35 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 3 of 14 (b) in the case of any other publication, the person 1 who publishes it; 2 (c) in the case of a broadcast, any person having 3 functions, in relation to the programme in which it 4 is made, corresponding to those of an editor of a 5 newspaper, 6 commit an offence and are each liable on summary 7 conviction to a fine of one thousand dollars.” 8 9

¶ [3] For the avoidance of doubt: It is the Court’s view that the charges against this Defendant, 10 based on the particulars of the offence, fall within this section of the law by virtue of the use 11 of the word “etc.” and therefore I order that there be no identification of the Complainant in 12 this case. 13 14

¶ [4] In pursuance of the section, this Judgment has been anonymized to protect the identity of the 15 Complainant. 16 17 THE INDICTMENT & SUMMARY OF FACTS 18 19

¶ [5] The Defendant is before the Court for sentencing following his convictions after trial by 20 Judge Alone on the 7th July 2021. He was convicted of two offences of Abuse of Position of 21 Trust contrary to s.228 L (b) of the Penal Code 2019 Revision. 22 23

¶ [6] The maximum sentence is one of twelve (12) years’ imprisonment, s.228 (3) of the Penal 24 Code provides: 25 26 27 28 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 4 of 14 “(3) Notwithstanding sections 6(2) and 8 of the Criminal Procedure 1 Code (2019 Revision), the court of summary jurisdiction or the 2 Grand Court before which the individual pleads guilty or is 3 convicted, shall — 4 5 (a) in a case where the individual pleads guilty, impose 6 a sentence of imprisonment for a term of at least 7 five years; or 8 9 (b) in any other case, impose a sentence of 10 imprisonment for a term of at least seven years, 11 unless the relevant court is of the opinion that there 12 are exceptional circumstances relating to the 13 offence or to the offender which justify its not doing 14 so; and such exceptional circumstances shall be 15 stated by the relevant court.” 16 17 18

¶ [7] The particulars of the first offence are that he, on a day between the 19th day of April 2020 19 and the 11th November 2020 within the jurisdiction of the Cayman Islands being a person 20 over the age of 18 years in a position of trust in relation to TG aged 12, engaged with that 21 child in an activity that was sexual in nature. 22 23

¶ [8] The second offence is in similar terms with the date of the offence being the 11th day of 24 November 2020. 25 26

¶ [9] The facts of the offences are detailed in the earlier verdict judgment of the 7th July 2021. In 27 summary they are that TG is the niece of the Defendant. In respect of the first offence, while 28 TG and her younger sisters were at the Defendant’s home after school, he held her down on 29 his bed and attempted to remove her clothing. In respect of the second offence, in similar 30 circumstances he again held her down on his bed and, this time, removed her clothing and 31 touched her vagina. Her mother arrived at the house and on entering the bedroom, saw the 32 victim in a state of undress. 33 34 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 5 of 14

¶ [10] The Department of Community Rehabilitation (DCR) has provided a Victim Impact Report 1 (VIR) dated 2nd August 2021. It details the previously close relationship between the victim, 2 her sisters and the Defendant. The victim viewed the Defendant as another father figure, who 3 was kind to her and to her sisters and with whom she was comfortable. 4 5

¶ [11] She describes her disbelief and fright at the first incident and her initial lack of understanding 6 as to why he was trying to take her clothes off. She states that after the first incident he 7 returned to his normal self. 8 9

¶ [12] She describes the period after the second incident as being particularly difficult for her. She 10 had trouble sleeping and would awaken from sleep if a sound was heard. She was “worried 11 that someone would come into the house to harm her” because he had been arrested. She 12 was also worried about going to school because of the media reports about the incident which 13 could have led to her being identified, and did not attend school for a week because of her 14 anxiety. 15 16

¶ [13] She was afraid to go out in public in case persons asked her about the incident and feared 17 that she would see the Defendant. The family relationships have been impacted in that she 18 no longer has a close relationship with her cousin, the son of the Defendant. In addition, 19 there is now a poor relationship between the Defendant and her mother. 20 21

¶ [14] A psychological assessment conducted by the Health Services Authority (HSA) in respect 22 of the victim did not indicate any significant concern. The victim indicated that she did not 23 wish to be in therapy as she wished to put the incident behind her. 24 25 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 6 of 14

¶ [15] Under Assessment and Evaluation the Probation Officer notes that the family relationship 1 was such that mother reposed trust in the Defendant and allowed him direct access to her 2 children. 3 4 SOCIAL INQUIRY REPORT 5 6

¶ [16] The DCR has provided a Social Inquiry Report (“SIR”) dated 14th September 2021. The 7 Defendant is 43 years old. He is the father of two children, ages 17 and 15 years old. 8 9

¶ [17] His background history raises issues of neglect as a child and physical and emotional abuse 10 which is indicative of adjustment problems in his early years and possibly unresolved 11 trauma. His education was not consistent and he exhibited behavioural difficulties. He did 12 not graduate from primary or high schools and struggles with literacy skills. Despite this, he 13 has been gainfully employed at various jobs since he was 16 years old. His current employer 14 describes him as his best worker and as being honest and on time. 15 16

¶ [18] The Probation Officer expresses the view that the offence caused serious harm not only to 17 the victim but indirectly to other persons such as the son of the Defendant who formerly had 18 a close relationship with his cousins. 19 20

¶ [19] The Defendant was assessed using the Risk Matrix 2000 tool. His combined risk of sexual 21 or violent offending was assessed as medium. He was also assessed using the LS/CMI 22 instrument. His overall risk of re-offending was assessed as high. Of the eight (8) 23 criminogenic factors, five were found to be in the high category. The Officer recommends 24 that he be encouraged to participate in a sex offender treatment programme and receive 25 individual counselling. 26 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 7 of 14 THE SUBMISSIONS 1 2

¶ [20] Defence Counsel accepts that there are no exceptional circumstances in this case and that the 3 minimum term applies. It is further submitted on behalf of the Defendant that there are no 4 reasons to impose a sentence above the minimum term and that the overall criminality in this 5 case would be properly reflected by a concurrent rather than consecutive sentence. 6 7

¶ [21] Defence Counsel submits that in this case the single aggravating factor of ‘position of trust’ 8 is already reflected in the nature of the offence and the level of punishment. Despite the fact 9 that there were other children in the house, they were not aware of what occurred or were 10 too young to understand. 11 12

¶ [22] It is further argued that the instant case may be distinguished from the case of Attorney 13 General’s Reference No. 28 of 1001, in which there were separate offences involving 14 different children. The Prosecution agrees with the submissions of the Defence. 15 16

¶ [23] In mitigation, Defence Counsel submits that the Defendant is a man with no previous record 17 of any offending, he has no history of sexual offending and this offence appears to have been 18 out of character for him. He is a hardworking individual who is the sole carer for his son. 19 20

¶ [24] The Cayman Islands Sentencing Guidelines provides guidance on the general principles for 21 sentencing. There are no specific guidelines for the offence of Abuse of Trust. Prosecuting 22 Counsel has drawn the Court’s attention to the recent decision of the Grand Court in the case 23 of R. v. Rafael Hackett2 in which the Court imposed a sentence of 6 years’ imprisonment on 24 a guilty plea to two counts of the said offence in circumstances where there was a single 25 1 [2010] EWCA Crim. 1996 2Grand Court Ind. 16 of 2021, unreported judgment dated……… _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 8 of 14 aggravating factor of alcohol. The victim was 11 years old and the defendant was her uncle 1 who was 37 years old. 2 3

¶ [25] The Court has considered all the circumstances of the offending in the instant case and all 4 that has been said about the Defendant in the Reports and in submissions by his Counsel. 5 The Court bears in mind the relevant test for exceptional circumstances as set out R v. Zakir 6 Rehman and Gary Wood3 and as approved by the Cayman Islands Court of Appeal (CICA)4. 7 8

¶ [26] The conclusion is that there are no circumstances in relation to the offending or the offender 9 in this case which appear to be exceptional in nature such as to justify a departure from the 10 starting point of the minimum term. 11 12

¶ [27] The Court also accepts the submissions of both Counsel that there are no aggravating factors 13 which would justify an increase in the sentence beyond the mandatory minimum. 14 15

¶ [28] Paragraph 6 of the Cayman Islands Sentencing Guidelines with respect to concurrent and 16 consecutive sentences provides as follows: 17 “6.1 Concurrent Sentences 18 It is wrong in principle to impose sentences to run consecutively where those 19 offences, though distinct in law, arose out of a single act so that the overall 20 criminality for the offender can be represented by concurrent sentences. 21 Concurrent sentences will ordinarily be appropriate where: 22 - Offences arise out of a related incident or facts 23 - There is a series of offences of the same or similar kind 24 especially when committed against the same victim 25 - Where concurrent sentence are passed, the sentence should 26 reflect the overall criminality involved. The sentence should be 27 appropriately aggravated by the presence of the associated 28 offences and thus the court may increase sentence for the 29 principal offence to reflect the gravity of conduct: 30 31 32 3 [2006] 1 Cr. App. R. (S) 77 4 Chavarria-Atily v. R [2009] CILR 118 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 9 of 14 6.2 Consecutive Sentences 1 Consecutive sentences will ordinarily be appropriate where: 2 - Offences arise out of unrelated facts or incidents 3 - Offences are of the same of similar kind but where the overall 4 criminality will not sufficiently be reflected by concurrent 5 sentences for example: 6 - Where offences are committed against different victims 7 - Where sexual offences or domestic violence are committed 8 against the same individual 9 - Where the offender commits the same or similar offence after 10 being arrested for the original offence” 11 12

¶ [29] The Court is satisfied that, in this case, the overall criminality will be sufficiently 13 reflected in a concurrent sentence. 14 15

¶ [30] The Defendant has been on bail since the 18th November 2020 with an electronically 16 monitored curfew for a total of 331 days. Defence Counsel summarises the factual 17 position as follows: 18 “The defendant first appeared before the Summary Court on the 16th of November, 19 and was granted bail on the 18th of November 2020. The bail conditions included a 20 curfew from 10am to 9pm as the Defendant was working during the night, with the 21 curfew being electronically monitored. The Grand Court granted bail with a curfew 22 of 7pm to 7am. 23 The Defendant was on either 11 or 12-hour curfew for 134 days. 24 On the 31st of March the Defendant’s curfew was varied to 11pm to 4am, as he was 25 working at a Gas Station and with either very early or very late shifts. 26 .. 27 The 1st of April to the 30th of September to the present is 183 days.”5 28 29 30 31 5 Submissions dated 27th September 2021 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 10 of 14

¶ [31] Defence Counsel submits that although the latter period was only 5 hours, it amounted 1 to a restriction on the only time away from work that the Defendant had. Counsel asks 2 that the Court calculates these as remand days at a rate of 50% as if they were days as 3 ‘qualifying curfew’ as in the statutory position in England and Wales. 4 5

¶ [32] The Cayman Islands Sentencing Guidelines at paragraph 12 deals with reduction in 6 sentence for time spent on remand subject to the conditions curtailing liberty. It states 7 that the court should: 8 9 “Consider whether credit should be given for time spent on bail where conditions 10 have been imposed which curtail the liberty of the defendant. This is most likely to 11 be relevant where a defendant has been subjected to a curfew, especially where 12 compliance with that curfew can be verified through electronic monitoring” 13 14 15

¶ [33] The relevant factors to be taken into account in the exercise of discretion include: 16 17  The total length of time the defendant has been subject to a curfew; 18  The number of hours each day that curfew was imposed during the curfew 19 period; 20  Whether the curfew included daytime hours or was solely a night time 21 curfew (recognising that being indoors at night during, for example, 22 normal sleeping hours may be less of a curtailment of liberty than being 23 indoors during the day); 24  Any breach of the conditions of curfew. 25 26

¶ [34] The Guidelines further provide that in deciding how to exercise its discretion in the 27 absence of statutory provisions in the Cayman Islands, the Court will bear in mind the 28 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 11 of 14 statutory provisions in England and Wales as set out in s. 240A of the Criminal Justice 1 Act (CJA) 2003 as amended in relation to electronically monitored curfew. 2 3

¶ [35] In the case of R v. Nicholas Tibbetts6 the Grand Court stated: 4 “74. I take the Cayman Islands Guidelines as a starting point. There is clearly a 5 discretion as to whether, and to what extent, credit should be given. To 6 adopt the defence submission that the practice of the Cayman Islands is to 7 automatically deduct half the time on curfew, would take away the 8 discretion clearly set out in the Guidelines. Each case has to be considered 9 on its own facts – for example the conditions of the curfew will vary 10 considerably in cases – some being more onerous than others.” 11 12

¶ [36] In this case the Court accepts the submissions of Defence Counsel that the Defendant 13 was working and that the curfew period, whether day or night, was effectively the only 14 time away from work that he had. The curfew period is credited at a rate of 50%. The 15 deduction is therefore 165.5 days. 16 17

¶ [37] The Prosecution made an application for a Sexual Harm Protection Order (SHPO) in 18 respect of the Defendant. The Order was not opposed and there is agreement with respect 19 to the proposed terms. 20 21

¶ [38] Prosecuting Counsel drew the Court’s attention to the case of R. v. Inches7 which in turn 22 referred to a number of earlier cases which establish the general principles. 23 24

¶ [39] In R v. NC8 which dealt with the previous regime of such orders, the English Court of 25 Appeal identified the essential questions as being: 26 27 6 Grand Court, Ind. 71/2015 unreported judgment dated 16th December 2016 7 2020 EWCA Crim 373 8 [2017] 1 Cr. App. R. (S) 13 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 12 of 14 a. Is the making of an order necessary to protect the public from sexual harm through 1 the commission of scheduled offences? 2 b. If some order is necessary, are the terms imposed nevertheless oppressive? 3 c. Overall are the terms proportionate? 4 5

¶ [40] In R. v. Parsons9 the Court stated the principles as follows: 6 “At the outset, we underline the following: (i) first, as with SOPOs, no order 7 should be made by way of SHPO unless necessary to protect the public from 8 sexual harm as set out in the statutory language. If an order is necessary, 9 then the prohibitions imposed must be effective ; if not, the statutory purpose 10 will not be achieved. (ii) Secondly and equally, any SHPO prohibitions 11 imposed must be clear and realistic . They must be readily capable of simple 12 compliance and enforcement. It is to be remembered that breach of a 13 prohibition constitutes a criminal offence punishable by imprisonment. (iii) 14 Thirdly, as re-stated by R v NC , none of the SHPO terms must be oppressive 15 and, overall, the terms must be proportionate. (iv) Fourthly, any SHPO must 16 be tailored to the facts. There is no one size that fits all factual 17 circumstances.” 18 19

¶ [41] This Court is satisfied on a balance of probabilities that, given the very serious nature of 20 the offending involving, as it does, sexual harm of a repeated nature on a young child, 21 that a SHPO is necessary for the protection of children. An Order is therefore made. 22 23

¶ [42] The Defendant should fully understand that the Court regards his offending conduct as 24 being of the most egregious kind. It is inexplicable that he could have been a part of the 25 growing years of the young victim having interacted with her as an uncle from she was 26 at least 7 years old and then turn around and seek to engage in sexual activity with her. 27 It is a breach of trust which must be strongly deprecated. 28 29 9 2019 1 W.L.R. 2409 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 13 of 14

¶ [43] Moreover the conduct has the hallmark of predatory activity rather than impulse. The 1 fact of repetition indicates not only a possible wait for a second opportunity but the 2 beginnings of a course of conduct. It was fortunate that the mother arrived at the home 3 when she did and also fortunate that she did not wait for a response after the knocking 4 on the bedroom door before entering. 5 6

¶ [44] The Defendant’s conduct has caused harm, not least because of the distressing impact 7 on the child, but also because it has destroyed the harmonious family relationships which 8 existed among the wider family. It is hoped that the Defendant will one day come to a 9 full realisation of the harmful nature of his actions and seek the counselling assistance 10 which has been recommended by the Probation Officer. 11 12

¶ [45] The custody threshold is firmly passed and the primary aims of sentencing in this case 13 must be deterrence and punishment. The Court has given consideration to the fact that 14 the Defendant is presently the sole carer for his sixteen year old young son and is mindful 15 of the principles set out in the case of Regina v. Rosie Lee Petherick10. 16 17

¶ [46] Firstly in that respect, the Court has been advised that arrangements have been made for 18 the Defendant’s son to be returned to the care of his mother. Secondly, given the gravity 19 of the offending in this case, the applicable sentence of imprisonment does not appear to 20 be disproportionate. It was stated by that Court: 21 22 “The likelihood, however, of the interference with family life which is inherent in a 23 sentence of imprisonment being disproportionate is inevitably progressively 24 reduced as the offence is the graver and M v South Africa is again a good example.” 25 26 10 No: 2012/3360/A1 Court of Appeal Criminal Division 3 October 2012 [2012] EWCA Crim. 2214 _________________________________________________________________________ Sentence Judgment: R v Ferron. (Francis Fernando). Coram: Richards J. Q.C. Date: 15th October 2021 Page 14 of 14

¶ [47] The sentence is one of 7 years’ imprisonment concurrent on each count with any time 1 served to be deducted as well as credit of 165.5 days. 2 3

¶ [48] A Sexual Harm Prevention Order is made for five years in terms of the draft provided to 4 take effect on the Defendant’s release from Prison. 5 6 Dated this the 15th October 2021 7 8 Honourable Justice Cheryll Richards Q.C. 9 Judge of the Grand Court 10 11 12