Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 23 of 2009 (Indictment No. 43/08) C#04751/2008 Between: HER MAJESTY THE QUEEN Respondent - and - GIFFORD CLAYTON HARLEY PRENDERGAST Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that GIFFORD CLAYTON HARLEY PRENDERGAST having sought leave to appeal against his Conviction & SENTENCE passed upon him by the Grand Court on the 24th day of September, 2009 as set out below: Indictment # 23/09 Indecent Assault on a Male – Count 1 5 years imprisonment on each count. All sentences are concurrent. Indecent Assault on a Male – Counts 2-8 Same as above Indecent Assault on a Male – Count 9 Charge dismissed on 17th September 2009 The Court of Appeal has finally determined the said appeals, and has this 26th day of November, 2009 given judgment therein to the effect following:
The appeal and the Crown’s cross-appeal is dismissed.
Sentence affirmed
Transcript of oral judgment to be released. Dated this 9th day of January, 2010 Registrar IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 23/09 IND NO. 43/09 C#04751/08 BETWEEN: GIFFORD CLAYTON ARLEY PRENDERGAST 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 MOTTLEY, J.A. Reasons for Judgment delivered orally on 26 Nov 2009 APPEARANCES: On behalf of the Appellant: H. Hamilton, Q.C. Ms. K. Reid On behalf of the Respondent: Ms. K. Gunn Judgment (Forte, J.A.) THURSDAY, NOVEMBER 26, 2009 JUDGMENT FORTE, J.A. (Orally): This is an appeal by Gifford Clayton Arley Prendergast against sentence on an indictment which charged him on nine counts, on eight of which he was convicted. Mr. Hamilton abandoned the appeal against conviction at the commencement of this hearing so the appeal remains only against sentence. The appellant was sentenced to five years on each count to run concurrently. Before us Mr. Hamilton argued that that sentence is manifestly excessive. Before dealing with the arguments in that respect, it would be appropriate to outline the facts in the case, and a convenient starting point in relation to that is provided by Mr. Justice Henderson who tried this case in the Grand Court. The eight counts collectively describe a course of conduct which occurred from May 1st, 2006 until April 30th, 2008 although Judgment (Forte, J.A.) Henderson, J. says that the evidence disclosed that the period covered 18 months in all. It should be said at this time that Mr. Prendergast, the appellant, stood in loco parentis to the victim, a boy who was at the time of these offences aged between 12 and 13. The appellant is not the boy's biological father, but he was very much a father figure to the boy. The boy, calling him "daddy", spent a great deal of time in his company and depended upon the appellant in a variety of ways. Throughout this period of time, the appellant manipulated the young boy and exerted a minimal amount of force to engage the young boy in homosexual acts. The appellant and the victim engaged on a number of occasions in mutual oral sex and mutual masturbation always at the instance of the appellant. At the time of the trial, the appellant was 36 years of age, a mature man throughout the period of time. The learned judge described a number of sexual acts occurring on different days amounting to between 50 and 100 times. He recorded that a mild degree of physical Judgment (Forte, J.A.) force was used on a handful of occasions although for the most part the appellant exerted what the boy rightfully called "mental force". After some initial resistance, the boy acquiesced in this behaviour. At the hearing, the question of sentencing surrounded a discussion about the application of the Sentencing Guidelines Council in the United Kingdom with reference to the Sexual Offences Act 2003 in the United Kingdom. It was pointed out that in that country the starting point for offences such as this was five years. The learned judge, however, dealt with that, and I quote from his reasons. "I remind myself that the maximum penalty is higher in the United Kingdom than it is in this jurisdiction. The maximum penalty in the United Kingdom for sexual assault is 14 years, while in the Cayman Islands the maximum for indecent assault is ten years. I must respect that difference and take it into account to the benefit of the Judgment (Forte, J.A.) defendant." In the end, the learned judge arrived at a starting point of four years. Mr. Hamilton has chosen to challenge that starting point. He has referred us to many cases out of the United Kingdom in which the sentences were much lower than the five years to which this appellant has been sentenced. We, however, find that none of those cases are helpful, all of them dealing with acts which bear no resemblance to the degree that exists in the facts in this case. It is interesting to see how the learned judge dealt with the sentence, and I am going to quote him again because I think it is very relevant to our conclusion. "As I have said, there are present in this case some aggravating factors. The defendant's position of trust and influence, which was considerable and which endured throughout the entire period over which the offences were being committed, is a major Judgment (Forte, J.A.) factor I must take into account. In addition, there were many repeated offences committed over a considerable period of time. There was some minimal degree of force used, particularly at the beginning. "I consider that the lower maximum penalty in the Cayman Islands should lead me to accept a lower starting point for my sentence calculation. A term of imprisonment for four years would be an appropriate starting point for this offence." Having said that, the learned judge, as I have done, dismissed the application of the cases cited to him from the United Kingdom on the same basis that we are now dismissing those cases. What did he take into account in determining the correct sentence in this case? I am going to quote him again. Judgment (Forte, J.A.) "I take into account what has been said by counsel for the defendant, and I note particularly that some 26 pages of character reference letters have been received from members of the community who were motivated to write and support the defendant at this time. I do place some weight on those and I do think they should, to a certain extent, serve to reduce what might otherwise be the appropriate sentence. However, the aggravating factors are of considerable significance and outweigh to a substantial degree any mitigating effect derived from the defendant's good reputation in this community." Now, what were those aggravating circumstances that the learned judge found? I will quote him again. "At sentencing I have been Judgment (Forte, J.A.) presented with a short victim impact statement from the boy who is now 15. He says that, during the sexual assaults, he used to feel confused, mad in a way, depressed and 'I pretty much lost respect for myself.' He added that during this period of time his grades declined badly. I have no reason to doubt those assertions." Then the learned judge says this: "At page nine of the guidelines, [that is the guidelines to which I referred, the Guidelines Council in the United Kingdom] under the heading 'Factors Indicating Higher Culpability', that is to say aggravating factors, the guidelines' authors list, amongst other things, deliberate targeting of vulnerable victims, abuse of power and abuse of a position of Judgment (Forte, J.A.) trust. Those last two elements are particularly relevant here." With that statement we entirely agree. He continues. "At page ten under the heading 'Factors Indicating a More Than Usually Serious Degree of Harm', the authors point to repeated assaults on the same victim, which is what I have before me. The eight counts to which I have referred earlier are specimen counts." The learned judge was there emphasising what he accepted as aggravated circumstances in this case. With those comments we agree. Mr. Hamilton though says that the position of trust lost its strength because the young boy had admitted that he was interfered with by two other persons in the past. We cannot agree with that. We agree with what the learned judge says. The defendant's position of trust and influence which was considerable and which Judgment (Forte, J.A.) endured throughout the entire period over which the offences were being committed is a major factor which he took into account. I reiterate that, having cited it before, because of the importance we put on the question of the trust that this young boy had in a person who he had placed in the position of his father, not having a father of his own. Having said all of that, we come to the conclusion that this was a well-reasoned judgment by the learned trial judge arriving at what we think is the appropriate sentence. We, however, would like to say that while it might appear to be lenient and could easily, given the factors in this case, have been more, we cannot come to the conclusion that it is unduly lenient. We, however, find that the term of five years for offences such as this is, in fact, an appropriate sentence. We agree with the learned judge's conclusion, though we do not like the term "starting point", we prefer to say that sentences should be in the range of four to five years, with an additional increase depending on whether there is aggravated circumstances or not. Judgment (Forte, J.A.) In the event therefore we cannot find any fault with the judgment of the learned judge. The appeal is therefore dismissed. CHADWICK, P.: The appeal and the cross appeal. FORTE, J.A.: So is the cross appeal. CHADWICK, P.: The sentence below is affirmed. Certified correct to the best of my skill and ability, dated the 3rd day of December 2009. Karen Woon Sam