Judge’s error results in reduced sentence for second sex offender

A St Mary man who was convicted for having sexual intercourse with his 12-year-old cousin when he was 29 years old had his prison sentence halved to nine years yesterday by the Court of Appeal as a result of a trial judge’s error.

The sex offender, whose name is being withheld to protect the victim’s identity, had pleaded guilty to having sexual intercourse with a person under 16 in June 2018 in the St Mary Circuit Court and was slapped with an 18-year sentence with a stipulation that he serve 12 years before being eligible for parole.

A five-year prison sentence that was imposed by a parish judge on a 21-year-old man, who had raped his high schoolmate after stealing her pen, was last month similarly reduced to a three-year suspended sentence. This after the judge had reneged on a sentence indication to impose a suspended sentence if the offender pleaded guilty.

However, in the case at hand, the sentence was reduced after the appellate judges agreed that the trial judge, Justice Sonya Wint-Blair, had made several errors in the execution of the sentencing and, as a result, set aside the 18-year prison sentence after hearing the appeal late last month.

The judges also withdrew the parole stipulation after accepting that the appellant was not charged under the section of the Sexual Offences Act which requires that sentence condition.

‘Manifestly excessive’

The sex offender had appealed his sentence on the grounds that it was “manifestly excessive” that the trial judge had applied the wrong principles in law in imposing the sentence and that the judge had erred in exercising her discretion in ordering that his name be placed on the Sex Offenders’ Registry.

The appellant’s attorney-at-law, Jacqueline Cummings, had argued that the sentence was too long and should have been set aside and that an eight-year prison term would have sufficed.

Cummings, in arguing that the initial judge had applied the wrong principles, pointed out several mistakes, including using a starting point of 20 years instead of 15 years as prescribed by the sentencing guidelines, giving more weight to the aggravating factors than the mitigating factors, and failing to give the appellant the appropriate discount for an early guilty plea.

Prosecutor Christina Porter, who, along with her colleague, Maxine Jackson, represented the Crown, conceded that the judge had erred in her approach to the sentencing exercise and that she had used the wrong principles.

That argument was amplified by the three-judge panel of justices, Williams, Edwards and Simmons.

“We agree that the learned trial judge’s approach to the application of the appellant’s sentence was in some respect flawed,” they chorused in a recently published judgment.

The appellate court judges observed that although the trial judge had started out by declaring the correct sentence – life imprisonment – she had interpreted wrongly the section of the Criminal Justice Administration Act that was used, and thereafter, made several missteps.

“Curiously, she then determined that because the appellant had pleaded guilty, she would not start at the maximum of 30 years, but would instead start at 20 years. This was indeed a curious approach to take,” they concluded.

Noting that Justice Wint-Blair was wrong to have started at 20 years, even though it was within her power to start outside of the usual range, the appeal court said she would have needed to indicate her reasons, which she had not supplied.

The trial judge had contended that the appellant had not pleaded guilty on the first relevant date but the judges found that the appellant pleaded guilty early and was entitled to a discount, and further, that there was no evidence to show that he had not pleaded guilty on the first relevant date.

They further acknowledged that the 25 per cent sentencing discount was wrong and should have been 40 per cent after assessing what had transpired and that the judge had not given the same weight to the aggravating and mitigating factors.

The appellate judges, however, after concluding that the sentence should be quashed and the appropriate sentence imposed, said, “This court will not disturb the sentence imposed by a trial judge simply because it would have imposed a different sentence. In this case, the learned trial judge departed from principle and, as a result, imposed a sentence that was manifestly excessive and in the interests of justice, it must be set aside.”

In the meantime, the judges, however, found no merit on the ground regarding the judge’s order to place the appellant on the Sex Offender Registry and affirmed the order.

tanesha.mundle@gleanerjm.com