Chadwick P, Conteh JA, Forte JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 11 of 2009 (Indictment No.17/08) C#00073/08 Between: HER MAJESTY THE QUEEN Respondent - and - DALTON BENJAMIN ROBINSON Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that DALTON BENJAMIN ROBINSON having sought leave to appeal against his CONVICTION & SENTENCE passed upon him by the Grand Court on the 14th day of April, 2009 as set out below: Ind 17/08 Indecent Assault on a Female 3 years imprisonment to run consecutively to present term of imprisonment. Time spent in custody on this matter from 3rd January, 2008 to 24th November, 2008 to be taken into consideration. The Court of Appeal has finally determined the said appeals, and has this 3rd day of March, 2010 given judgment therein to the effect following:
Legal aid for this application granted to John Furniss.
Appeal against conviction being withdrawn by appellant is hereby dismissed. Conviction affirmed.
Appeal against sentence dismissed.
Sentence affirmed
Oral transcript of reasons to be released. Dated this 29th day of March, 2010 Registrar CICA 17-09 Dalton Robinson transcript of oral judgment 29th March 2010 IN THE CAYMAN ISLANDS COURT OF APPEAL ON APPEAL FROM THE GRAND COURT CAUSE No. 0073 of 2008 IND No. 17 of 2008 CRIMINAL APPEAL No. 11 of 2009 BETWEEN: DALTON BENJAMIN ROBINSON Appellant - AND - HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK, P. THE HON. MR. JUSTICE FORTE, J.A. THE HON. MR. JUSTICE CONTEH, J.A. Reasons for Judgment delivered orally on 3rd March 2010 Chadwick, President (Orally): The appellant was convicted on the 5th of December 2008, after trial before judge alone, of the offence of indecent assault on a female. The offence was committed on the 12th of November 2007. On the 14th of April 2009, the appellant was sentenced to three years' imprisonment for the offence for which he had been convicted: that term of imprisonment to run consecutively to a term which the appellant was then serving for another and unconnected offence. The appellant gave notice of his wish to appeal against both conviction and sentence. The grounds as they then were, in the notice of appeal which he signed on the 27th of April 2009, were these: "I am appealing against the sentence and conviction which the magistrate impose on me. I think it is to [sic] harsh and excessive, so I am asking the judge to be more lenient with me." Although there is reference there to a magistrate, the sentence was in fact imposed by a judge of the Grand Court. When the matter came before this court the appellant was represented by Mr. Furniss. He indicated that his client wished to withdraw the appeal against conviction. The appellant confirmed that to the court. Accordingly, it was directed that on withdrawal of the appeal the conviction should stand. We have been concerned, therefore, only with an appeal against sentence. The judge found the facts on the basis that he accepted the evidence of the virtual complainant, a girl then aged 13 years or thereabouts. The girl was visiting her grandmother on the day in question. Living with the grandmother was, among others, the appellant, Dalton Robinson, who (it seems) was the grandmother's adopted son. The relationship, therefore, between the appellant and the girl was that of uncle and niece. Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) The offence took place in the back room at the grandmother's house. The facts, for the purpose of sentence, can be taken to be these: At about 6:00 p.m. in the evening the appellant called the complainant into the back room, saying that he wanted to see her "thing". The girl understood by that that he wanted to see what she described as her "pussy" or, on being asked for clarification, her vagina. She said that the appellant told her not to be afraid because her elder sister, wimpy, had already "done it". Her evidence was that she sat on the bed in the back room, the appellant took off her pants and had oral sex with her: that is to say, he applied his mouth to her vagina. He then said that he was going to get a condom and left the room. She attempted to leave the room after he had gone out, but he returned, pulled her back and asked her where she was going. She pulled away from him and went outside. Those were the bare facts of the incident. The judge, as I said, believed the girl and convicted the appellant of indecent assault. There is now no appeal against that conviction. Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) The judge went on to sentence the appellant to a term of three years. In giving his reasons for sentence he explained that he had seen a victim impact statement; from which it was plain that the girl had been affected by this behaviour. He went on: "... even at this point ... she is complaining of the fact that she is uncomfortable in the presence of older men. How long she will be saddled with that, we don't know, but that flows directly ... as a consequence of what you did to her." The appellant has a long record of offending - amounting to some 45 previous offences - but none of those offences were of a sexual nature. It is clear that the judge sentenced on the basis that this appellant, although not able to rely on good character, could not be regarded as a persistent sexual offender. But he took account first of the fact that the girl was the appellant's niece - so he was, as it were, in a position of trust in respect to her - and that, on her evidence, Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) she had been "groomed" or "prepared" for a sexual encounter by the appellant; in that he had required her to watch him having sex with other women on earlier occasions. Those other women did not give evidence of that: but the girl did, and it is plain that the judge accepted her evidence on that point. In those circumstances, as the judge said: "Having looked at your antecedents, having heard your attorney and looked at the precedents from this jurisdiction and from England, the court sentences you to a imprisonment." The principal English authority to which the judge was there referring was the case of wellman [1999] 2 Cr.App.R.(S.). The circumstances in that case were not dissimilar from the present. The appellant, in wellman, was a man of 58. He was convicted of indecent assault on a girl, aged 13, who was a friend of his 14-year-old daughter and had come to stay the night. In that case, the appellant Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) supplied both girls with alcoholic drinks: to the extent that eventually the friend, that is the victim, was sick. They all went to bed. The appellant had slept on a sofa. The friend slept in another room. She woke up three times in the night, and on each occasion found the appellant in her room. On two occasions the appellant put his hand inside her pyjama trousers, and on one occasion inserted his fingers into her vagina. She then immediately left, climbing through the window. The trial judge sentenced the appellant to two years imprisonment. That sentence was upheld in the Court of Appeal, who observed that it could not be regarded as excessive: "it was entirely appropriate". Wellman is of importance because it marks a departure from an earlier line of English authorities which had relied on the decision in Demel [1997] 2 Cr.App.R.(S.)5. Their decision had indicated rather lesser sentences for offences of this kind. But, as the Court of Appeal pointed out in Wellman, those authorities could no longer be relied upon because the maximum sentence for indecent Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) assault had been increased to ten years since they were decided: so two years could not be regarded as excessive. Mr. Furniss relies on Wellman, of course, for the observation that a two-year sentence in that case seemed entirely appropriate. But that case was an English case in 1999: the present is a Cayman Islands case some ten years later. We must begin by looking at the Statement on Tariffs and Guidelines for Sentencing for Certain Offences handed down on the 16th of January 2002 by the Chief Justice. Under the heading "Sexual Offences" the Guidelines indicate that for defilement of a girl over 12 but under 16 years of age, the law prescribed a maximum penalty of seven years. They go on to say this: "The Courts regard all sexual offences as very serious and all too prevalent. While the actual age of the girl within each category and the circumstances of the offence will always be important considerations, the Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) basic tariff here will be 5 years where the offender had no reasonable cause to believe or did not ... believe that the girl was above the age of 16 years." That is the tariff for the offence of defilement. There are in the Penal Code (2007 Revision) two distinct offences: the offence of defilement under section 134(1), which provides that: "whoever unlawfully and carnally knows any girl between the ages of twelve and sixteen years is to be guilty of an offence and liable to imprisonment for 12 years"; and the offence of indecent assault under section 132(1). It is an offence for a person to make an indecent assault on a woman: the offence carries on conviction a liability to imprisonment for ten years (section 132(5)). It seems clear that the maximum of seven years for defilement - to which reference is made in the Guidelines - has since been increased to twelve years. It can be seen that in a case of indecent assault, where the maximum is a little less than the maximum now Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) for defilement, a sentence of five years would be well within the Guidelines. But, of course, in cases of indecent assault the circumstances vary widely and tariffs can be no more than a guidance. The appropriate sentence must be tailored to the facts of the particular case. In the present case, there were aggravating circumstances: first, the preparation for grooming, which I have described - that is, exposing the girl to the experience of watching the appellant perform sexual acts on other women; second, the position of trust within which both that grooming and the offence took place - in that the appellant was her uncle and she was visiting her grandmother's house in which he resided; and, third, the nature of the indecent assault itself - that is to say, his applying his mouth to her vagina. Mr. Furniss sought to argue that there were degrees of indecent assault; and that digital penetration came higher on the scale than what occurred in this case. For our part, we think that one must be cautious in making Robinson v. R. 03-03-10 (c.a.r.) Judgment (Chadwick, P.) where, as here, the indecent assault involved an act which must be regarded as disgusting and must have been highly offensive to the victim. It said that the appellant did not, in fact, restrain the girl from leaving: but that submission sits ill with the judge's findings of fact which indicate that the appellant attempted to do so but that the girl pushed past him and got out. Further, there is the feature that this act has affected her attitude towards older men, in that she still feels uncomfortable in their presence. Fortunately it seems that she is reconciled to her uncle and does not have a personal fear of him. In all those circumstances, it seems to us that the judge was fully entitled to reach the conclusion that a three-year sentence was appropriate in this case. That term cannot be regarded as excessive, let alone manifestly excessive. For those reasons, we dismiss this appeal. Judgment (Chadwick, P.) REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability, dated the 3rd day of March 2010. CAROL ROUSE