Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 28 of 2009 (Indictment No. 28/09) C#03915/09 Between: HER MAJESTY THE QUEEN - and - FELIX WILLIAMS NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that FELIX WILLIAMS having sought leave to appeal against his CONVICTION & SENTENCE passed upon him by the Grand Court on the 17TH day of December, 2009 as set out below: Indictment # 28/09 Attempted Rape Count 1 9 years imprisonment. Indecent Assault Count 2 5 years imprisonment. Sentences to run concurrent. The Court of Appeal has this 30th day of November, 2010 given judgment therein to the effect following:
Appeal against conviction having been abandoned is therefore dismissed.
Appeal against sentence allowed. Sentences set aside. Sentences of 8 years (count 1) and 5 years (count 2) imprisonment imposed. Sentences to run concurrently.
Time spent in custody to be taken into account. Dated this 11th day of January, 2011 * Transcript of ruling released 01/11 Registrar IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS CRIMINAL APPEAL NO. 28/09 BETWEEN: FELIX WILLIAMS Appellant and THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK, President THE HON. JUSTICE I. FORTE J.A. THE HON. JUSTICE E. MOTTLEY J.A. Court Proceedings on 30 November 2010 APPEARANCES: Mr. N. Dixey for the Appellant Mr. K. Ferguson for the Respondent THEIR LORDSHIPS' RULING CHADWICK, President: Following a trial in December 2009, the appellant, Felix Williams, was convicted on two counts: the first of attempted rape and the second of indecent assault. The offences had occurred at the same time, some eight months earlier, on the 16th of May 2009. The victim was the 12-year-old stepdaughter of the appellant, Felix Williams; and the incident had occurred in the home which they both shared with her mother. Put shortly, the victim had awoken to find her stepfather on top of her in her bed; her mother having by then left for work. In the course of the indecent assault, the appellant used his fingers to touch the victim's vagina; he licked the vagina; he attempted to put his penis into the vagina, and he made that attempt on two occasions. The victim struggled, pushed and kicked him; and he came off the bed. The victim called her mother by mobile phone, who returned to the house, confronted the appellant who was arrested and taken into custody. The incident, although traumatic, was of relatively brief duration. The appellant was charged with rape. He elected to be tried by judge alone. The judge was not satisfied that there had been sufficient penetration to constitute the offence of rape; and reached a conclusion that the appropriate verdict was "guilty of attempted rape and indecent assault". She sentenced Mr. Williams on 17th December 2009 to nine years' imprisonment on the attempted rape and five years' imprisonment on the indecent assault, the sentences to run concurrently, but she did so on the basis that the period which he had already spent in custody, some seven months, should not be taken into account against the term of imprisonment for which he was sentenced. It has been pointed out, correctly -- the basis, usual in this island, that time spent in custody would count as time served -- that the effect of that approach was that the sentences were comparable to ten years' imprisonment for the attempted rape and six years' imprisonment for the indecent assault. We have been asked to approach this appeal on the basis that these should be viewed as sentences of ten years and six years respectively; and we take account of that. The appellant, who had been represented at trial but subsequently lost the services of counsel, filed his own notice of appeal on the 22nd of December 2009. He sought to appeal against both sentence and conviction on the basis, as he said, that the conviction did not reflect the evidence presented at his trial. He asked for the Court of Appeal to assign Legal Aid. This Court did so in the August session 2010; and the appellant has had the benefit of being represented by counsel, Mr. Nicholas Dixey, on this hearing. We are grateful for Mr. Dixey's assistance. Mr. Dixey has told us this morning that he has clear instructions that the appellant wishes to withdraw his appeal against conviction. The appellant is in court and he clearly concurs with that position stated by his counsel. Accordingly, we treat the appeal against conviction as withdrawn; and we need say no more about it. It is only the appeal against sentence that is now before us. The real point that is made on the appeal against sentence is that the offence of attempted rape in this jurisdiction carries a maximum sentence of 14 years' imprisonment, and that this offence, although serious, does not come within the upper tertile of offences of this kind so as to merit a term as high as ten years. That presents a difficult sentencing problem, for this reason: there were, in this case, a number of aggravating factors. The judge listed them in the course of her sentencing remarks. She identified five aggravating features. First, that the victim was aged 12 at the time of the offence; second, that she was the stepdaughter of the offender and could have expected to be nurtured by him and to place her trust in him; third, that she lived with him and therefore would have expected him to protect her from harm; fourth, the offences occurred in the sanctity of the home; and, fifth, that the attempted rape was accompanied by other acts of indecency. The point is properly made that, to some extent, the second, third and fourth of those features overlap, but together, of course, they each reflect the fact that this was a case where the offender was a person in a position of trust and influence over the victim. In those circumstances, had this been a completed offence of rape, Mr. Williams could have expected to receive a sentence of 15 years or more. The reasons for that view appear in the decision of this Court in the appeals of Craig Dilbert and Christopher Omar Samuels, Nos. 3/2008 and 17/2009. In the course of its judgment on those appeals, the Court pointed out that, given a tariff guideline of ten to 12 years for rape, an offender who committed rape in circumstances where there were aggravating features of the nature identified by the Court of Appeal in England in The Queen v. Milbury could expect to be sentenced for 15 years or more. That would be the appropriate starting point in a case with aggravating factors of the nature that were here present. Had there been no maximum period of imprisonment imposed or prescribed for offences of attempted rape -- or, perhaps more accurately, had the position been the same as it is in England where the prescribed maximum for attempted rape is life imprisonment (as it is for rape itself) -- ten years would have been an appropriate sentence for this attempted rape; given that the corresponding sentence for the offence of rape would have been 15 years or more. But the existence of the prescribed maximum for attempted rape introduces the additional feature that the appropriate sentence must be measured against the yardstick that 14 years is the maximum sentence for the most serious offences of attempted rape. This was a case in which there were mitigating factors; notwithstanding the existence, also, of aggravating factors. The judge identified the mitigating factors as these: that no weapon was used; that the incident was of short duration; that no obvious residual physical injuries were caused or existing; and that the offender, a man of 44 years of age, had an unblemished record and was properly to be treated as being of good character before this offence. In those circumstances, as it seems to us, to pass an effective sentence of ten years against a statutory maximum of 14 years is to put this offence into a range which is unduly high in the scale applicable to attempted rape. We are satisfied that the appropriate sentence for attempted rape in this case would have been an effective sentence of eight years, and that the corresponding sentence in relation to indecent assault would have been some five years. We have to ask ourselves, therefore, whether the sentence passed was manifestly excessive. We would not take the view that a sentence of nine years was manifestly excessive in circumstances where the appropriate sentence was eight years. But, as I say, nine years is not the appropriate comparator in this case. The appropriate comparator in this case is ten years, and the difference between ten years and eight years is, we think, sufficient to meet the requirement of manifest excess. For those reasons, we propose to allow the appeal against sentence, giving leave to appeal if necessary. We set aside the sentences that were passed. In their place, we impose a sentence of eight years in respect of the attempted rape and five years in respect of the indecent assault, and we direct that time spent in prison shall be taken into account in serving those sentences. MR. DIXEY: My Lord, for the avoidance of any doubt, of course, My Lord, time served in prison, Your Lordship would include in that time served in custody on remand. I know that's what Your Lordship means, I'm sure. THE COURT: Yes, certainly. MR. DIXEY: If we could express it that way. THE COURT: Time in custody, yes. MR. DIXEY: I'm grateful. THE COURT: That's absolutely what we had in mind. MR. DIXEY: That was clear to me, sometimes it's not clear to others. THE COURT: Time spent in custody is to be taken into account -- MR. DIXEY: Very grateful. THE COURT: -- against the sentence.