Swift J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0083/2013 THE QUEEN V MANOLO DELA PENA VALLO Appearances: Ms. Candia James for the Crown Ms. Fiona Robertson of Samson & McGrath for the Defendant Before: Hon. Mr. Justice Malcolm Swift (Actg.) Submissions heard: 22nd July 2015 SENTENCE RULING
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 [or similar] 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." Accordingly, this Judgment is distributed with the strict understanding that, in any report of it, the anonymity of the Complainant, who is also the victim, must be strictly preserved, that is, the victim may not be identified by name or location or by her family members.
The Defendant, 41 years of age, has been convicted unanimously by the jury of raping a woman who was 23 years of age at the time. She had come to the Cayman Islands from the Philippines to work. The Defendant knew her family and took on the role of her mentor - purporting to guide her as she obtained work and gained experience in her new job where he was also employed as a colleague.
It is my clear view that the Defendant had another objective in mind. He gradually began to display affection for the Complainant, sought out her company socially, began calling her his wife and repeatedly told her he loved her. He embarked on a persistent course of trying to ingratiate himself into her affections. In that, he failed. He made her feel uncomfortable and she gave the Defendant no encouragement whatsoever. She gave the Defendant no indication at all that his approaches were reciprocated.
Clearly the Defendant had been waiting for his opportunity to have sexual intercourse with the Complainant, whether she wanted to or not. His chance came on the 27th July 2013 when both of them were alone together at their place of work at the end of the working day. Using his superior strength, the Defendant pinned the Complainant down on the floor and forced her into sexual intercourse with him despite her valiant attempts to stop him. The Defendant ejaculated inside her.
The Defendant then stopped the Complainant from making an immediate report to anyone by insisting on taking her home and then beginning a campaign of text messaging and telephone calls designed to prevent her from reporting the rape by trying to embarrass her and to pressurize her by attempting to instill in her feelings of shame and disgrace.
The phone evidence also suggests strongly that the Defendant persuaded other members of his family to attempt to stop her from reporting him to the Police.
The effect on this young woman is clear from the texts themselves. She was initially suicidal, or at the very least self-harming, and cut herself. Her first message, in answer to the Defendant’s first attempt to deter her from reporting him, was to say "You just destroyed my life. It's better that you kill me than that you treated me like this".
The Complainant clearly believed and still believes that the Defendant had deflowered her, ruining her future and destroying her aim to lead the normal life of a young woman anxious to have normal relationships. The Complainant feels, with complete justification, that the Defendant has taken those ambitions away from her.
The Defendant has no previous convictions. I have read, and I take into account, the various character references provided to me.
The Defendant pleaded not guilty and his defence involved the allegation that the Complainant was in fact his girlfriend, that they both were in a sexual relationship together and that she had fabricated the allegation of rape because she was jealous of the Defendant’s alleged contact with a girlfriend of his back home in the Philippines. That defence merely adds to the abuse the Complainant suffered at the hands of the Defendant and removes any mitigation which might otherwise be justified by a guilty plea or by previous good character.
In the UK Home Office Command Paper "Protecting the Public" published in November 2002, dealing in part with so-called 'date rape', the following appears: "Our view is that rape is rape and cannot be divided ... into more or less serious offences. It can be just as traumatic to be raped by someone you know and trust who has chosen you as his victim as by a stranger who sexually assaults the first man or woman who passes by. It is up to the courts to take all particular circumstances of a case into account before determining the appropriate penalty". That statement represents with accuracy and poignancy the grave effect of this rape on this victim in this case.
I have considered the guideline decision of the CICA in Dilbert v R.; Samuels v R. 2010\( ^1 \) from which it is clear that I should pay heed to the aggravating and mitigating factors (if any) as set out in the well-known UK authorities including in particular \( R \) v Millberry\( ^2 \) but I should not be guided by UK levels of sentencing in respect of the offence of rape. Instead my starting point should be the Chief Justice's Statement on Tariffs and Guidelines for Sentencing which sets higher sentences for rape in these islands for the reasons clearly explained in Millberry (supra). \footnotetext{1}{(1) CILR 10} \footnotetext{2}{2003 1 Cr App R 25}
I apply the Chief Justice’s Tariff. The Tariff set for the Cayman Islands is 10 to 12 years. I can see no reason to exceed that Tariff as there are in my judgment no serious aggravating factors other than those inherent in the offence of rape itself which invariably causes trauma to the victim and instills feelings of worthlessness, despair at any prospect of happiness in the future and self-blame – all of which are summarized aptly in this case by the victim’s expression that the Defendant destroyed her life.
Just as there are no aggravating factors, equally there are no mitigating factors either. I am urged to reduce the sentence on account of the Defendant’s good character, lack of convictions, and the time spent awaiting trial on bail with strict conditions. I am also invited to find that the Defendant was remorseful in his text messages after the rape.
On the contrary, I do not find those messages to be evidence of remorse. In my clear view they were no more than attempts by the Defendant to save his own skin. The Defendant threw away any mitigation when he pleaded not guilty and chose to subject his victim to re-live, again, her ordeal and humiliation in examination in chief and particularly in cross-examination – where she was accused, not of consenting to intercourse on this occasion, but of being a liar who had made up the whole allegation out of spite. In my view the Defendant’s behaviour after the rape and the conduct of his defence counteract any mitigation inherent in his previous good character.
Nevertheless, I place this offence at the lower end of the Tariff and see no reason to depart from a sentence of 10 years’ imprisonment. That is the sentence. Dated this the 22nd day of July 2015 Honourable Mr. Justice Malcolm Swift (Actg.) Judge of the Grand Court