Sitting in Guyana and delivering judgment in a local case, the Caribbean Court of Justice (CCJ) yesterday denied the application for special leave to appeal by a man who was handed two life sentences for raping a child back in 2017.
As the Guyana Court of Appeal had unanimously found, the Trinidad-based court of last resort affirmed the convictions and imposition of the two concurrent life sentences on the convict, with eligibility for parole after 20 years.
To protect the identity of the complainant, the applicant was not named in the CCJ judgment.
The man was found guilty in 2018 of raping and sodomizing a girl between the ages of seven and eight in January and December of 2016 and in January 2017.
He mainly argued in his appeal that his sentence was excessive and that the sentencing process of the trial judge was flawed.
However, the local appellate court had said that it found “merit” in the decision handed down by trial Judge Jo-Ann Barlow.
Based on their findings, the court had said that the prosecution, in their report, had noted that the sentencing was not manifestly excessive to which the Court of Appeal also agreed as it accorded with the facts of the offence and the overall case.
The Court had further pointed out that the trial judge imposed the sentencing in keeping with the principles of the High Court.
Against that background, the Guyana Court of Appeal found that the sentences which are currently running concurrently were appropriate.
The Applicant contended in his appeal that the Court of Appeal’s failure to review and correct these errors, amounted to a serious miscarriage of justice which justified him being granted special leave to appeal to the CCJ.
In a judgment written by Justice Peter Jamadar and read by Justice Maureen Rajnauth-Lee, the CCJ held that the principal question for determination was whether the Applicant satisfied the requirements of special leave.
The Court said that in order to be granted special leave, the Applicant was required to show that there was a realistic possibility that a serious miscarriage of justice may have occurred.
According to the CCJ, in order to satisfy this test, the Applicant was required to make an arguable case that the sentence imposed was manifestly excessive and that the judicial sentencing process did not sufficiently meet acceptable fair hearing standards, in order to avoid any serious miscarriages of justice.
The Court noted that in examining the sentencing process, in case law precedent it had adjudicated on, guidance was provided to trial judges on the best practices to be followed in cases involving sexual violence on minors.
Justice Rajnauth-Lee said that in another judgment, the Court affirmed these best practices with an expectation that they will be applied as and when appropriate; stating that ideally, this guidance ought to be followed to ensure that constitutional standards for a fair hearing are satisfied.
She said, however, that failure to do so was not fatal.
The CCJ noted that the two cases to which it referred, in which the precedent was laid down, were not yet decided when Justice Barlow sentenced the Applicant.
The court heard that in the Applicant’s case, Justice Barlow did not receive a victim impact statement, sentenced him immediately after the verdict was given and did not consider a social services report.
However, the CCJ said it was evident that the trial judge considered the aggravating factors placed before her, including the young age of the complainant, the lack of a guilty plea, the Applicant’s attempt to shift blame, the repeated course of conduct, and the consequential emotional damage to the complainant.
Based on these, and after having heard and considered the Applicant’s plea in mitigation, Justice Barlow determined that in the exercise of her discretion, she could not be lenient.
Justice Rajnauth-Lee said that the trial judge’s approach demonstrated an intention to consider and balance relevant sentencing factors, though not necessarily as fully as advised in case law precedent.
Her sentencing remarks the CCJ said also showed that the Applicant’s rehabilitation and re-integration into society were taken into account.
With respect to his sentence, the CCJ noted that life imprisonment was the maximum penalty under the relevant section of the Sexual Offences Act and was within the range of punishment options available to Justice Barlow.
The CCJ also found that the circumstances of the crime were well placed before Justice Barlow, who found no mitigating circumstances.
Importantly, the CCJ observed that what made this case distinct in its severity was the position of trust the Applicant held and the young age of the child.
The court pointed out that in addition, there were several precedents where those convicted of the crime of sexual activity and who were adults in positions of trust like the Applicant, were given life imprisonment sentences.
“So, in his case, the Applicant’s sentence was neither extraordinary nor manifestly excessive,” Justice Rajnauth-Lee said.
The CCJ held that while the sentencing approaches and recommendations made in the two case law precedents were not precisely followed, it did not necessarily mean that Justice Barlow in the exercise of her sentencing discretion, and the Court of Appeal in its review of the process, erred in law and in fact so as to create any serious manifest injustice or miscarriage of justice.
As a result, in all the circumstances, the CCJ dismissed the application for special leave.
The two cases which the CCJ referenced were Pompey v The Director of Public Prosecutions and Ramcharran v The Director of Public Prosecutions.
The matter was determined by Justices Rajnauth-Lee and Jamadar; along with Justice Denys Barrow.
Meanwhile, the Applicant was represented by Nigel Hughes, Ronald Daniels, Savannah Barnwell, Kiswana Jefford and Shawn Shewram.
Representing the State were Assistant Director of Public Prosecutions Teshana Lake and Diana O’Brien.
Background
In April of 2018, the man was found guilty and was sentenced to life behind bars for raping the child between January 1st and December 31st of 2016. He was further found guilty and sentenced to life imprisonment for sodomizing the girl on January 2nd of 2017. Along with the sentences, Justice Barlow had also ordered that the convict must serve a minimum of 20 years before being eligible for parole.
When he appeared in 2018 before the said Justice Barlow and the decision of life imprisonment was handed down, the convict told the court that he found the jury’s’ verdict “strange”, as such he decided to challenge that verdict.
The Court had pointed out that instead of taking responsibility for his actions, the convict had sought to shift blame from himself, contending that two persons conspired against him. In his appeal he argued that he was not the one who interfered with the virtual complainant but rather it was a 14-year-old who did.
He also said that the child was being influenced by two persons to implicate him in the offences.
