Malcolm J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 109/2012 THE QUEEN V MARK CHARLES BODDEN Appearances: Mr. Greg Walcolm for the Crown Mr. John Furniss for the Defendant Before: Mr. Justice Alastair Malcolm (Actg.) Submissions heard: 4th March 2016 SENTENCE RULING PREAMBLE
Section 31 of the Criminal Procedure Code (2013 Revision) deals with the "Anonymity of complainants in rape etc. cases and states: "31. (1) After a person is accused of a rape [etc.] offence, no matter likely to lead members of the public to identify a woman as the woman against whom the offence is alleged to have been committed shall be published in a written publication available to the public or be broadcast, except as authorised by a direction of the court."
Section 12 of the Youth Justice Law (2005 Revision) states: "12. (1) In relation to any proceedings in any court, such court may direct [and this court so directs] that- (a) no published report of or comment on the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any young person concerned in the proceedings, either as being the person by, against or in respect of whom the proceedings are taken, or as being a witness in the proceedings; and (b) no picture shall be published as being or including a picture of any young person so concerned in the proceedings. (2) Whoever publishes any matter in contravention of subsection (1) is guilty of an offence and liable on summary conviction, in respect of each such offence, to a fine of five thousand dollars or to imprisonment for six months.
Therefore, for the avoidance of any doubt, in any report of this matter, no words or descriptions shall be used which could identify the alleged victim by name, age, address, educational institution(s) or otherwise. This also means that none of the civilian witnesses shall be identified by name, age, address, institution(s), or otherwise.
On the 1st February 2013 the defendant, Mark Charles Bodden, pleaded guilty to two counts of Defilement contrary to s.134(1)(b) of the Penal Code (2010 Revision). Sentence was adjourned for a Social Inquiry Report (SIR), a Victim Impact Report (VIR), and a psychiatric report. The psychiatric report was only delivered on the 6th January 2016, hence the case came before me on the 4th March 2016.
The Indictment alleges that the offence in Count 1 took place on the 8th October 2011 and that Count 2 took place on a day unknown in October 2011, other than the date referred to in Count 1. The Defendant’s date of birth is the 15-08-1988 and therefore he was 23 at the time of the Count 1 offence. The Complainant’s date of birth is 13-10-1997 and therefore she was still 13 at the time of the Count 1 offence. It is common ground that Count 1 in the indictment was the second of the two occasions when sexual intercourse had taken place, so it follows that the Complainant was 13 at the time the offence in count 2 took place as well.
The facts can be put fairly shortly. The Complainant and the Defendant had known each other for some two years. The Complainant lived with her mother, step-father and four siblings aged between 5 and 9. The two offences occurred at the Complainant’s home at times when her mother and stepfather were out fishing at night.
On the 8th October 2011 the Complainant sent a text message to the Defendant indicating that her mother was out fishing and that she was bored. The Defendant suggested he would come round to her house and she agreed. After the Defendant had arrived he suggested sexual intercourse. Initially, the Complainant told the Defendant that he should go and find his girlfriend but, after he said he was single, she acquiesced.
When the Complainant’s mother returned from fishing her youngest daughter told her that a man had been in the house. The Complainant initially denied that a man had been there. The Complainant’s mother then saw a text message from the Defendant on the Complainant’s phone and, by impersonating her daughter, discovered the Defendant had been to the house.
The matter was then reported to the police on the 10th October 2011 and the Defendant was arrested and interviewed. He admitted the 8th October offence and said that he had had sexual intercourse with the Complainant on an earlier occasion in similar circumstances.
Having admitted the offence to the police without prevarication the Defendant pleaded guilty at the first available opportunity.
At the time of these offences the Defendant had no previous convictions although in 2012 he was made subject to a two-year Probation Order for offences of an entirely different nature.
The SIR indicates that the Defendant was married in or about 2009 although by the time of the SIR in April 2013 he had been separated from his wife for some time. Further the report discloses that in 2010 he had a son from a relationship with someone older than himself. SENTENCING GUIDELINES AND AUTHORITIES
I have been provided with the Chief Justice’s Statement on Tariffs and Guidelines for Sentencing for Certain Offences dated 16th January 2002¹, the UK Sentencing Council’s Sexual Offences Definitive Guideline appropriate for sentences passed on or after 1st April 2014 in England and Wales and various decisions of the Grand Court and the Cayman Islands Court of Appeal (CICA). In considering the guidelines contained in the Sentencing Council’s Guideline I remind myself that they are not binding in this jurisdiction, merely persuasive, and that the maximum sentence in England and Wales for s.9 of the Sexual Offences Act 2003 of Sexual Activity with a child is 14 years, whereas under s.134(1)(b) of the Penal Code (2010 Revision), Defilement carries a maximum of 12 years. ¹ Although it is intended that there should be guidelines for sexual offences included in the 2015 Cayman Islands Sentencing Guidelines they have yet to be produced.
I take notice of the Chief Justice’s Statement on Tariffs of 2002 at page 4 where offences of Defilement of girls between the age of 12 and 16 are addressed and the learned Chief Justice says “The Courts regard all sexual offences as very serious and all too prevalent”. Similarly in his sentence ruling in R v Ron Christopher Douglas2 Quin J said at paragraph 41: “It is my view that the Grand Court should take judicial notice of the deeply disturbing fact that the Offence of Defilement of a girl under 16 is becoming increasingly prevalent”.
The Chief Justice’s Statement on Tariffs sets the basic tariff of 5 years at a time when the maximum sentence was 7 years and as I have already noted the maximum for the offence now is 12 years.
I turn to the England and Wales guidelines. In passing I note that the 2007 Sentencing Guidelines Council set a starting point of 4 years with a range of 3 to 7 years. Concerns were expressed by the judiciary that this was too inflexible given the great variety of activities and, more importantly, ages of defendants covered by s.9 of the Sexual Offences Act 2003. This concern resulted in the more flexible guideline produced by the Sentencing Council in 2014.
At page 46 of the Sentencing Council’s Sexual offences Guideline the offence category is determined. There is no dispute that this is a Category 1 offence; the only question is whether under culpability this is an A or B offence. 2 Ind No 71/13 Ruling date 03.06.14
If this is a Category 1A offence the starting point is 5 years custody with a range of 4 to 10 years custody. If it is a category 1B offence the starting point is 1 year custody with a range of High Level Community Order to 2 years’ custody. Mr. Walcolm on behalf of the Crown submits that the only feature that could make this a Category 1A offence is if I find there was a “Significant degree of planning”; otherwise it is a 1B offence. Although there is some disparity in age between the Complainant and the Defendant in my judgment, in the circumstances of this case the degree of planning does not amount to “significant”. Therefore, I agree with Mr. Walcolm’s analysis. Mr. Furniss for the defence does not dispute Mr. Walcolm’s proposition but asserts there is no evidence of “significant degree of planning”.
Of the authorities supplied to me I do not find the cases of \( R \) v Randy McLean or \( R \) v Ron Christopher Douglas which were jointly considered by the Court of Appeal\(^3\) assist as far as length of sentence is concerned as in both cases there were significant aggravating circumstances which are absent in this case.
In \( R \) v Woods\(^4\) the Complainant was 13 and the Defendant 19. They had been romantically involved for several months. A non-punitive sentence was appropriate and a probation order was made. In \( R \) v Bryan Powell\(^5\) the Complainant was 14 and the Defendant was 19 and the court took the view that it was a case of two young people of similar age and that a probation order for 2 years was appropriate. \(^3\) CICA (Crim.) No 10/2014 & No 19/2014 \(^4\) [2008 CILR Note 13] \(^5\) Ind No 29/2012 Ruling date 4.9.2012
In \( R \ v \ Gee^6 \) and \( R \ v \ Andrew \ Ebanks^7 \) the defendants were aged 54 and 30 respectively and both received 2-year sentences. Andrew Ebanks had his sentence suspended in the light of particular circumstances of his case which are not entirely apparent from the limited report available. CIRCUMSTANCES OF THE DEFENDANT
According to the SIR the Defendant was brought up by both his parents but there were some difficulties – not least of which was the fact that the family home and most of their possession were destroyed by Hurricane Ivan in September 2004. In addition to his marriage and the birth of his son before the offences were committed, he has had further relationships and now has 3 children. As I have already mentioned, he was placed on probation for 2 years in 2012 following convictions involving the possession and use of ganga and two marine offences. His initial response to the Probation Order was not good but Mr. Furniss said in mitigation that his supervising officer had said matters had improved by the end of the order.
The author of the SIR, Judye Garrahan-Mobley, considered that the Court would be assisted by medical evaluation. A report was ordered and a Psychiatry Report was produced in January 2016. 6 [CILR 1996] 7 Sentence Quin J 20.02.2013 Dr. McGill’s conclusion was that the Defendant “is a young man with no major psychiatric disorder and no tendency to bizarre behaviour” and that “this young man’s low self-esteem increases his vulnerability to any female who expresses interest in him or admiration for him or attraction to him. His concrete thought processes and problem-solving technique may predispose to impaired decision making”. DELAY
It is now 3 years since the Defendant pleaded guilty. At least some of that delay was caused by the defendant missing appointments with the doctor who was preparing the report. In addition, on two occasions he failed to appear and had to be arrested. SENTENCE
At the time of these offences the Defendant was a married man and the father of a child. He was not a teenager emotionally involved in a relationship with a girl only a few years younger than himself as the defendants were in the cases of \( R v\ Wood^8 \) and \( R v\ Bryan\ Powell^9 \). In my judgment a Probation Order would be quite inappropriate in this case.
If I were only to have regard to the Sentencing Council’s guidelines I would find there was no evidence of a significant degree of planning and deal with this as a Category 1B case. The starting point would be 1 year custody but that would be aggravated by the following circumstances - the disparity of ages, which is not sufficient to elevate this case to category 1A but it is a factor, and also his experience as a married man and father. The mitigating factors would be no relevant convictions and, to a very limited extent, the evidence of the psychiatrist that his ability to exercise self-control might be lessened.
Following the Sentencing Council’s guidelines only, I would reach a sentence of 18 months’ imprisonment before considering any reduction for the plea of guilty. However I must have regard to the primary guideline in this jurisdiction and that is the Chief Justice’s Statement on Tariffs and also take judicial notice of the prevalence of this type of offending. 8 supra 9 supra
In my judgment the correct sentence is one of 2 years’ imprisonment. As I have already indicated, the Defendant pleaded guilty at the earliest opportunity and is entitled to a full one third reduction. That produces a sentence of 16 months.
Mr. Furniss has urged me to suspend any prison sentence I might think appropriate – coupling it with a supervision order under the provisions of the Alternative Sentencing Law 2006. Mr. Furniss submits that I should suspend the sentence because of the age of the offence and the delay. Whereas delay may in certain circumstances justify a reduction or suspension of a sentence, those circumstances do not exist in this case – particularly as a substantial amount of the delay was caused by the defendant himself.
I can find no valid reason to justify the suspension of the sentence therefore it must be served.
The sentence is 16 months’ imprisonment on each count, concurrent, making a total of 16 months’ imprisonment. If there has been any time served it will count towards the sentence. Dated this the 15th day of March 2016 Mr. Justice Alastair Malcolm Q.C. Acting Judge of the Grand Court This page is completely blank. There is no visible content, text, or images to transcribe.