Stating that the Guyana Court of Appeal failed in applying binding precedent when it affirmed the 23 years imposed on convicted rapist Calvin Ramcharran, the Caribbean Court of Justice (CCJ) has reduced his sentence to 12 years.
“The evidential deficits and procedural shortcomings, taken together with the failure to follow the sentencing approach explained by the majority in Pompey, resulted in a sentencing hearing that was flawed and has arguably not met the threshold standards to constitute a fair hearing that could produce a fit proportionate and just sentence,” the CCJ said in its ruling yesterday.
By a majority of 11 to 1, a jury back in 2015 had found Ramcharran guilty as charged of the 2012 rape of a woman, who he had also viciously beaten during the act.
Justice Jo-Ann Barlow, who presided over the trial, would later sentence the convict to 23 years for the rape and three years for the physical assault. The sentences were to be served concurrently.
In an appeal before the local appellate court, however, Ramcharran (the Appellant), argued among other things, that the sentence was “manifestly excessive” when considered with what is generally imposed in cases comparable to his and precedent.
To his appeal before the Guyana Court of Appeal, acting Chancellor Yonette Cummings-Edwards had said that given the requirements of modern sentencing guidelines, the only shortcoming found on the part of the trial judge was that there was nothing indicating how she had arrived at the sentences.
Given the aggravating factors, however, especially the beating that the complainant suffered during the sexual assault, the appellate court had said that the sentences imposed were just.
Before the Trinidad-based court of last resort, however, attorney Nigel Hughes, who appeared for Ramcharran, had argued that the local courts failed to conform to precedent set by the CCJ itself.
While acknowledging the repugnance of sexual offences, Hughes had said that given the case law precedent of Pompey vs. the State, in which the complainant was a child, he would have thought that the sentence against his client, where the complainant was an adult, would have been lower.
Ramcharran appealed both his conviction and sentence, but was granted leave by the CCJ to appeal only his sentence.
Justice Denys Barrow, who read the judgment, said the Court found that the trial judge failed to hold a separate sentencing-hearing to take a victim impact statement to obtain mental health or psychological assessment, to obtain a social report, and to give written reasons for, and indicate the process used to arrive at the sentence.
He said that while the trial judge did hear a plea in mitigation, and did not impose the maximum sentence of life in prison, because she gave no reasons, the appellate courts could only infer what she may have considered in arriving at the sentences imposed.
On this point Justice Barrow said the CCJ had found that the Guyana Court of Appeal, in reviewing the trial judge’s sentence, erred in failing to follow the comprehensive guidelines for trial judges in respect of sentencing in rape cases as outlined in the Pompey case.
He said that the Court was satisfied that because the Court of Appeal failed to be guided by the precedent in Pompey, as it was bound to do, it failed to apply the proper sentencing principles and objectives to the determination of the issue raised by the appeal—whether the sentences were manifestly excessive or wrong in principle.
“More fully stated, it failed to consider if a different sentence should have been passed,” he said.
Against this background, Justice Barrow said the Court considered the range of starting sentences for rape, as well as the aggravating and mitigating factors and imposed a sentence of 12 years imprisonment.
As it relates to sentence for the physical assault, the CCJ affirmed that, stating that because it is to be served concurrently, there is no double-punishment for that offence “and it will be left to stand for its demonstrative and deterring effect.”
In a separate judgment, Justices Maureen Ragnauth-Lee and Peter Jamadar, while agreeing that the sentence imposed for rape was excessive, dissented only to the extent that that they would have instead imposed 16 years, as opposed to 12 years.
They, however, concurred with the majority of the Bench that “the sentence imposed was presumptively excessive and disproportionate.”
According to these two judges, “the evidential deficits and procedural shortcomings, taken together with the failure to follow the sentencing approach explained by the majority in Pompey, resulted in a sentencing hearing that was flawed and has arguably not met the threshold standards to constitute a fair hearing that could produce a fit proportionate and just sentence.”
The appeal was heard by Justices Barrow, Ragnauth-Lee and Jamadar together with Justices Winston Anderson and Andrew Burgess.
Using Pompey as a guide, Hughes had advanced for the Court’s consideration that if it were to be said that the base was 10 years which is five years less than the rape of a minor, then the sentence imposed on Ramcharran would have been more than twice the starting base. He had opined, however, that the difficulty with the decisions regarding the sentence imposed upon his client by both the trial judge and the appellate court was compounded by the absence of any reasons.
He had quoted an extract from Pompey which said that where the sentencing court does not disclose the reasons for its sentencing, it becomes difficult to defend the sentence being just and that there is simply no material with which to defend the sentence.
From Pompey, he had said that defending such a sentence is difficult where there is no pre-sentencing report and no victim impact statement. In the absence of such materials and reasons, Hughes reminded from Pompey, where the CCJ had itself ruled that a sentence of 37 years in that case—whether rightly or wrongly imposed, has the appearance as though it had been “plucked out of thin air.”
Hughes had taken issue with the Guyana Court of Appeal which he said referenced Pompey to the extent that it noted that a complaint it had with Justice Barlow’s sentence was the fact that she did not show the process by which she arrived at the sentence given the modern guidance on sentencing.
He had said that having so identified, the appellate court failed to then illustrate how the absence of the process used to arrive at the sentence, did not adversely impact his client.
Meanwhile, in her address during the hearing of the appeal, Assistant Director of Public Prosecutions, Diana O’Brien, had reminded that the case of Pompey dealt with a minor who was the victim.
She had said, however, that the State’s contention as it related to whether a sentence, starting-point or range in relation to an adult victim of a sexual offence should be necessarily lower, would depend primarily on the circumstances of the particular case.
Against this background she had said that in Ramcharran’s case, there was the use of excessive violence against his victim, which was “more than necessary to commit the offence of rape.”
This she had said, along with the other aggravating factors in relation to the
commission of the offence, would impact where the starting-point should fall in Ramcharran’s case.
She noted, too, the appellate court’s observation that sentences for offences such as that for which Ramcharran was convicted—especially where violence was used—are not usually short.
O’Brien had said that in relation to what would have been appropriate or whether the sentence of 23 years was manifestly excessive as claimed by the Appellant, the majority of comparable cases in Guyana had not fallen outside of the range of that imposed upon Ramcharran.
Her position was that, guided by legal authorities, the Court of Appeal was right in not interfering with the sentence since it did not find that it was wrong in principle, nor did it consider it to have been manifestly excessive or unjust.
The charges against Ramcharran, stated that on July 22, 2012, at Soesdyke, East Bank Demerara, he sexually penetrated the young woman without her consent.
The state’s case was that the victim had gone to a dance with friends and was making her way to use the washroom when she was confronted by Ramcharran, who enquired whether she was “doing business.”
O’Brien, who led the state’s case at trial, had said that the young woman responded in the negative, at which point the convict grabbed her by the hand, after which a fight ensued between them.
The court had been told during the trial that Ramcharran then began hitting the victim repeatedly to the head with a bottle before dragging her aback an unfinished structure even as she continued to resist him.
The court had heard that it was at this point that the convict choked and punched the victim in her face as he raped her.
The state’s case also advanced that after the assault, Ramcharran offered the woman $65,000 and directed her to meet him at a car on the road. However, the young woman, who was stripped of her blouse by the convict, later sought assistance from other persons to leave the scene to seek medical attention as she was in and out of consciousness.
Both Ramcharran and the virtual complainant were 20 years old at the time.
