Richards J
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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IN THE GRAND COURT OF THE CAYMAN ISLANDS
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CRIMINAL SIDE
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INDICTMENT NO: 19 of 2020
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THE QUEEN
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v.
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MALDINI DEMATIO WILLIAMS
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Appearances:
Mr. Scott Wainwright for the Crown
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Mr. Crister Brady of Brady Attorneys at Law
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for the Defendant
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Before:
Justice Cheryll Richards Q.C.
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Sentence Hearing:
27th May 2020
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Sentence Judgment:
3rd July 2020
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HEADNOTE
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Criminal Law – Defilement – Section 134(1)(b) of the Penal Code (2017 Revision)
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Cayman Islands Sentencing Guidelines– Principles on Sentencing – Custody threshold.
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SENTENCE JUDGMENT
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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1.
Section 12 of the Youth Justice Law (2019 Revision) states:
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“12. (1)
In relation to any proceedings in any court, such court may direct
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[and this court so directs] that-
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(a)
no published report of or comment on the proceedings shall
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reveal the name, address or school, or include any
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particulars calculated to lead to the identification, of any
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young person concerned in the proceedings, either as being
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the person by, against or in respect of whom the
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proceedings are taken, or as being a witness in the
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proceedings; and
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(b)
no picture shall be published as being or including a
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picture of any young person so concerned in the
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proceedings.
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(2)
Whoever publishes any matter in contravention of subsection (1) is
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guilty of an offence and liable on summary conviction, in respect of
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each such offence, to a fine of five thousand dollars or to
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imprisonment for six months.
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For the avoidance of doubt: An order pursuant to s.12(1)(a) and (b) above is herein made
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– with the consequences set out in s.12(2) to follow should there be a breach of this
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Order.
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2.
Section 31 of the Criminal Procedure Code (CPC) (2019 Revision) deals with the
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“Anonymity of complainants in rape etc. cases and states:
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“31. (1)
After a person is accused of a rape [etc.] offence, no matter likely
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to lead members of the public to identify a woman as the woman
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against whom the offence is alleged to have been committed shall
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be published in a written publication available to the public or be
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broadcast, except as authorised by a direction of the court.”
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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For the avoidance of doubt: It is the Court’s view that the charge of Defilement falls
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within this section of the law by virtue of the use of the word “etc.” and therefore I herein
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make an order in the terms of the wording of s.31(1) of the CPC as above.
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3.
The Defendant is before the Court for sentencing on Indictment 19 of 20, which charges
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him with a single count of Defilement contrary to s.134(1)(B) of the Penal Code (2019
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Revision).
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4.
The particulars are that he, on a day unknown in September 2019, within the jurisdiction
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of the Cayman Islands, had unlawful carnal knowledge of "XY", a girl between the age
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of 12 and 16 years.
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5.
The Defendant's first appearance in the Grand Court was on the 20th of March 2020, on
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which date he was arraigned and entered a plea of guilty. It is accepted by all parties
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that his plea was entered at the first reasonable opportunity.
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6.
The facts, as outlined by the Crown, are not disputed by the Defence. The victim in this
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case, is "XY" and her date of birth is in 2006. At the relevant time she was 13 years of
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age.
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The victim and the Defendant met at a local church sometime in February 2019. They
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began to talk during meetings there. He knew how old she was because she told him.
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They would discuss her schooling. During the summer of 2019 they exchanged phone
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numbers. Thereafter, he began to text her, telling her that he liked her and wanted to
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have a relationship with her. She told him that as she was underage she would get into
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trouble and he told her that age was just a number.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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8.
On a date unknown, in September 2019, he drove to her house during the evening. Her
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mother was out for the evening. He parked his car outside her house. She got into the
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front passenger seat and they both then got into the back seat and began kissing. They
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then had vaginal sex. He used a condom. The victim states that this went on for about
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three minutes, and that it was hurting. She told him it was hurting and she believes that
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is why he stopped. She then went back inside.
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They continued to go out together in his car, but, on the victim's version of events,
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nothing further of a sexual nature occurred.
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10.
On the 17th of November 2019 the victim told her mother that she had sex with the
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Defendant on one occasion while she, that is, her mother, was out for the evening. The
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matter was then reported to the police.
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The Defendant was arrested and interviewed under caution. Initially, he stated that no
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sexual contact had taken place between himself and the victim; that they were just
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friends. He claimed at that time that he believed her to be 16 years of age. He was then
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challenged with incriminating communications recovered from the victim's phone.
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These communications were of a sexual nature and proved that the Defendant was aware
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of the victim's true age. He then accepted that he knew that she was 13 years of age. He
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went on to accept that they had sexual intercourse in his car on three separate occasions.
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VICTIM IMPACT REPORT
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12.
The Department of Community Rehabilitation (DCR) has provided a Victim Impact
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Report (“VIR”) dated the 20th of May 2020.
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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The Probation Officer concludes that the incident continues to negatively impact the
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victim even after it occurred and that there are indications that her self-esteem has been
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compromised and that she is coping in a way which can cause her to become more
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vulnerable and lead to much riskier behaviours. The Officer states that the victim blames
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herself and feels that she is being blamed by others for what has happened, when, in
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actuality, she was taken advantage of.
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The victim states that she is okay and does not need professional counselling. However
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from interview observations by the Officer, her emotional presentation indicates
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otherwise. The Officer states that the victim needs to engage in counselling which would
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help her feel less isolated, address her level of denial, and deal with current issues that,
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if left unattended, will be the root cause of possible behavioural problems in the future.
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SOCIAL INQUIRY REPORT
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15.
The DCR has also provided a Social Inquiry Report (SIR), dated the 19th of May 2020,
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which gives details as to the personal circumstances of the Defendant.
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16.
He is 21 years old, with a date of birth of September 1998. He is a Jamaican national
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who relocated to the Cayman Islands in 2019 in order to live and work with a maternal
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aunt. He has been gainfully employed while being here. He is described as a jovial,
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well liked, and social person. There is evidence, says the Probation Officer, to suggest
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that he is immature.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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17.
Under attitude towards offending: The Defendant told the Probation Officer that he met
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the victim at church services which he attended with his aunt. He said that he was aware
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that the victim was 13 years old at the time. They exchanged numbers, at the instigation
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of the victim, he says, and began what he describes as an innocent and friendly exchange.
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After a month they began to communicate daily. He said that he understands that he did
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something wrong because of her age and because she could have been his sister.
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He was assessed using the LS/CMI Risk Need Assessment tool. His overall risk of
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re-offending was assessed as low. Of the eight criminogenic factors, two were assessed
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as medium; five low or very low; except for pro-criminal attitude or orientation which
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was assessed as high. In explaining this, the Probation Officer states that despite
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apologising to the victim's family, he has, in some instances, minimised his actions and
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demonstrated a lack of victim empathy. In order to determine the likelihood for
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re-conviction for a sexual offence, another assessment tool, the Risk Matrix 2000, was
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used. This tool cannot predict who will or will not offend, but it can tell whether
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someone has similar characteristics to a group of offenders who have a higher or lower
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rate of known re-offending. It does not account for all the factors that can affect an
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individual's offending behaviour and it does not account for changes in circumstances or
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reveal what caused the offending to happen.
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The Defendant was assessed as being at medium risk of re-conviction for a sexual crime.
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This means, says the Officer, that he has some of the characteristics that are associated
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with raised risk of re-conviction in sexual offenders.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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20.
The most recent figures indicate that two percent (2%) of medium-risk offenders were
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re-convicted of a sexual offence within two years of release from custody or the start of
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a community sentence; (only) 32 percent of offenders will be placed in a higher-risk
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group than this Defendant; and 37 percent in a lower-risk group. Medium-risk offenders
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need more treatment and supervision than low-risk offenders, but would not be at the
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highest level of treatment.
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21.
The Officer found that the Defendant appeared to appropriate blame to the victim and
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minimise his actions when he spoke of the events. He reported to her, that is, the Officer,
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that the victim said that she was sorry for what happened to him and that she was willing
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to talk to the police to explain that it was a mistake. This, said the Officer, is what may
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indicate a lack of remorse and victim empathy.
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The Officer also reports that it appears that he groomed the victim by presenting a
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friendly façade, but there is no indication from his local community contacts that he has
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ever acted inappropriately with any other female and he has no previous convictions.
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The Officer concludes by noting that, given that he is a foreign national with no legal
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ties to the Cayman Islands, he would not therefore be suitable for a community-based
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order.
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By s.134 of the Penal Code, the maximum sentence for this offence is 12 years'
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imprisonment.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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SUBMISSIONS
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The Crown submits that, under the newly-published Cayman Islands Sentencing
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Guidelines, this offence falls into category B of ‘culpability’ because none of the
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category A factors are present, and, into category 2 harm because none of the category
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1 factors of harm are present. The Crown has also asked the Court to consider whether
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an element of grooming may have been present in the way that the Defendant initially
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befriended the victim and obtained her phone number.
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26.
There is also mention in the VIR that he initially gave her fifty dollars ($50.00), which
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money he later took back from her. This money was not mentioned in her ABE
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interview. The Defendant denies any giving of such money and denies grooming. He
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says that this was a friendship and expresses regret through his Counsel at the extent to
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which it developed over time.
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Category B/2 offences, which are offences committed where the age of the victim is
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between 12 years and 16 years, have a starting point of 3 years' custody with a sentencing
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range of a community order to 5 years' custody.
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28.
Defence Counsel submitted that it is not in dispute that they did schoolwork and watched
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movies in the Defendant's car nearby her home when the victim would leave her house
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at night, in secret, to meet with him; that they had become boyfriend and girlfriend; that
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it is accepted that intercourse of a relatively brief duration occurred one night in the
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Defendant's car in October 2019; that they continued to be close for months thereafter,
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still meeting and texting regularly, but not engaged in intercourse until the victim was
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observed missing from her home by her aunt one night, and it was then that the
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association came to light.
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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Counsel submitted that it appears that after that single occasion the parties returned to
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being platonic friends and that the position remained thus until his arrest.
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Counsel submitted that the Defendant entered his plea at the earliest opportunity; that he
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is a young man who is remorseful and ashamed and that he seeks the leniency of the
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Court. Counsel asks the Court to note that there was no force or coercion used on the
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victim and that there are no particular aggravating features.
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31.
Counsel referenced a number of unreported cases and submitted that the sentences which
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had been passed by these Courts reflect the particular circumstances of each case,
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notwithstanding declarations by the Court of deep concern about the increasing
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prevalence of such offending.
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32.
Counsel referred to the March 2016 matter of R v Mark Charles Bodden1, in which His
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Lordship Mr. Justice Malcolm (Actg.) quoted from a 2014 ruling by His Lordship Mr.
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Justice Charles Quin in which he stated:
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"It is my view that the Grand Court should take judicial notice of the deeply
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disturbing fact that the offence of defilement of a girl under 16 is becoming
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increasingly prevalent."
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33.
Counsel referred to the facts in that case. Mr. Bodden was ten years older than the
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victim, who was in her early teens, and the offending had taken place at the victim's
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home. Expert evidence had been provided that the defendant was vulnerable to any
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female who expressed an interest or attraction to him, and that his concrete thought
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processes and problem-solving techniques could predispose him to impaired decision
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making. That defendant, having pleaded guilty at the first opportunity, was sentenced
1 Ind. 109/2012 – Judgment dated 15th March 2016.
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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to a total of 16 months' imprisonment after being given a one-third discount for his early
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guilty plea.
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34.
Counsel also referenced the case of R v Kevin Edwardo McField2. That defendant was
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18 years old and he was sentenced by Henderson J., to one year probation with a curfew,
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100 hours of community service, and ordered to attend counselling. In that case, the
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victim was four years younger, at age 14, and the parties had been in a relationship as
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boyfriend and girlfriend. The defendant had been found in a closet of the bedroom of
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the victim at 2:30 one morning.
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35.
In the case of R v Randy Michael McLean3 he was 23 years old at the time and the
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victim was 13 years old. The parties were confirmed to have been in a
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boyfriend/girlfriend relationship and the Defendant was sentenced by Harrison J (Actg.)
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to 2 years' imprisonment, suspended for 2 years, and 50 hours of community service.
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Some years later, in 2014, that same Defendant, then aged 31, had defiled another victim,
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and he was thereafter sentenced by Henderson J4 to 5 years 4 months' imprisonment, a
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sentence which was subsequently upheld by the Court of Appeal.
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36.
Defence Counsel asks this Court to consider the particular circumstances of this case
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and to consider whether a community service order or a suspended sentence would
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reflect the gravity of the offending, taking into account the distinguishing features which
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are present.
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2 Sentenced 16th June 2006 in the Grand Court – (Associated Summary Court Charge Number #2266/2006).
3 Sentenced 2nd September 2008 in the Grand Court – Ind. 24/2007 (Associated Summary Court Charge Number #5894/2006)
4 Ind. 48/2013
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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37.
The Cayman Islands Sentencing Guidelines provides general guidance as to the aims of
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sentencing, assessing the seriousness of an offence, the custody threshold and the
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principle of proportionality. The Court reminds itself of this guidance, including, that
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in sentencing an offender the Court has to balance a number of competing interests and
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objectives and to tailor the punishment to the individual circumstances of the offender,
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while ensuring that it is in line with the seriousness of the offence. The Court should
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consider which of the aims which govern the sentencing process would be best served
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by the sentence to be passed. The aims, which are set out in the Alternative Sentencing
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Law 2008, include deterrence, punishment, rehabilitation and restitution. The
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Guidelines also provide that a custodial sentence should not be passed unless the offence
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is so serious that no other sentence can be justified for the offence. Custody should be
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reserved for the most serious offences. Even where the custody threshold is passed,
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custody can still be avoided in light of personal mitigation or if there is a suitable
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community intervention which would meet the aims of punishment and rehabilitation.
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38.
In considering whether the custody threshold has been passed in this case, consideration
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has been given to the personal circumstances of the Defendant and to whether there is a
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suitable community intervention which would provide a sufficient restriction by way of
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punishment, while addressing rehabilitation issues.
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39.
The serious nature of the offence in this case is an important factor. The notes to the
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offence-specific Guidelines provide that the offence of Defilement covers a very wide
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spectrum of conduct and that, in assessing seriousness, the Court will consider, in
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particular, the age gap between the offender and the girl. The greater the gap, the more
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serious the offence is likely to be.
Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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40.
In this case there was an age gap of eight years. Having considered the age gap and the
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emotional impact on the victim, as described in the VIR, the nature of the offending and
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all the circumstances, the Court considers that the offence is serious such that the custody
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threshold is passed.
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41.
The factual circumstances suggest that there may well have been an element of
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grooming. However, the Defendant denies grooming and he denies giving her money.
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While the Probation Officer refers to the friendly façade which he presented to her, his
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personality is also described as generally jovial and it is said that he is a well-liked and
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social person.
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42.
The Court gives the Defendant the benefit of the doubt on the fact of grooming and any
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such suggestion is not held against him. Such a factor, if found, would have placed this
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matter in the band of culpability A rather than culpability B.
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43.
The Court accepts the submissions of the Crown that, in applying the Guidelines, this
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matter would fall into category 2/B.
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44.
From a starting point of 3 years' custody, there are no aggravating factors such as would
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serve to increase the sentence.
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45.
In mitigation there are a number of factors. He is very remorseful and has apologised to
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the victim's family for his actions. He is relatively young, at only 21 years of age. He
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lacks maturity. He has no previous convictions and is of good character. These are all
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significant factors in mitigation. Additionally, he has been gainfully employed. He is
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of low risk of re-offending in general, and at medium risk for sexual matters.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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46.
Taking into account all these factors, together with his detailed personal circumstances
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as outlined in the SIR and by Counsel on his behalf, the mitigating factors would serve
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to reduce the sentence from the starting point of 3 years’ by 14 months to 22 months'
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custody.
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47.
He has pleaded guilty at the earliest opportunity and, when this is factored in, the
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sentence will be further reduced to one of 15 months' imprisonment.
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48.
The Court has considered whether this sentence should be suspended. It is noted that
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his conduct was deliberate. Despite knowing her age, he told the victim that he wished
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to have a relationship with her. When she tried to stop him by telling him that as she
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was underage she would get into trouble, he persisted and told her, in complete disregard
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for the laws of the Cayman Islands, that age was just a number. These laws are in place
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to protect young girls from being subjected to underage sexual activity. The Defendant
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must face the consequences of his deliberate actions which have had such a devastating
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effect on this young girl. Other persons must be deterred from such actions.
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49.
Standing back and considering all the circumstances of this case, including the personal
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circumstances of the Defendant as have been detailed, the Court considers that the least
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sentence which would meet the seriousness of this case and which would meet the justice
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of the case by satisfying the elements of deterrence, punishment and rehabilitation is one
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of immediate imprisonment.
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Sentence Judgment: R v Williams. (M.). Coram: Richards J. Q.C. Date: 3rd July 2020
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50.
The sentence is therefore 15 months’ immediate imprisonment. In accordance with the
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recommendations of the Probation Officer, whilst in prison he should engage in
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Department of Community Rehabilitation prison services as well as services and
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programs offered by the Prison in order to address his risk/need level. Time served is to
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be taken into account.
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51.
The sentence is one of 15 months' imprisonment, with time served to be deducted.
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Dated this 3rd July 2020
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Honourable Justice Cheryll Richards Q.C.
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Judge of the Grand Court