Conviction upheld after PICA manager forced himself on junior worker

A former senior manager at the Passport, Immigration and Citizenship Agency (PICA), who was convicted of indecent assault after forcibly kissing a junior female employee in the elevator at work, has lost his battle to have his 12-month suspended sentence overturned.

The appellant, Barrington Merchant, was sentenced in December 2015 to 12 months in prison, suspended for 18 months, for indecent assault, after he was found guilty in the then Half-Way Tree Resident Magistrate’s Court.

Merchant, who at the time of the incident was the operations manager for the Investigation and Surveillance Unit at PICA, had appealed his sentence and conviction, but the Court of Appeal upheld them last month.

The former soldier was arrested and charged after a university student reported that he kissed her against her will and told her that he wanted to bed her in an offensive and lewd manner.

COMPLAINANT

According to the details in the recently published judgment, the complainant reported that on October 29, 2013, about 4 p.m., she entered an elevator with Merchant. While browsing on her phone, she noticed a shadow and looked up to see Merchant standing close to her.

The complainant said he then held her hands above her head, pinning them against the wall of the elevator and proceeded to kiss her. When he was exiting the lift, he told her that he “can’t wait to catch her … ”.

During the trial, the complainant testified that before the incident, Merchant had asked her to call a number for him, but told her that he did not get to reach the person after she dialled the number. Some time after, she said Merchant called her and introduced himself.

Merchant had denied kissing the complainant or making any remarks to her. He accused her of lying and colluding with another employee, Lynval Houston­­, one of the persons whom the complainant had told about the incident and who Merchant claimed had an axe to grind as he was being investigated for forgery.

Merchant indicated that before his promotion, he had confronted Houston, who was his supervisor, about a forged document bearing his stamp number, and since then, he has been marginalised by Houston.

In respect to the sexual offence, Merchant contended that he met the complainant after she was introduced to him by two female workers and that she had asked him to assist her with transportation to the University of Technology, but he told her that he would not be able to take her all the way and she gave him her phone number.

Merchant said that he later called her, but she told him that she had already left for school.

But the judge had found no evidence that Houston harboured any malice towards the appellant or had orchestrated the report against him. The judge also found the complainant to be credible.

Merchant, however, appealed on the grounds that the resident magistrate had erred in finding him guilty despite very little evidence to support the charge and erred in imposing a sentence that was inappropriate and excessive.

He also appealed on the grounds that the judge had failed to exercise her discretion to give an appropriate warning, considering evidence that one of the prosecution witnesses had a grudge against him. Further, he contended that she did not carefully consider and direct herself on the evidence that Houston could have influenced the complainant.

But the Court of Appeal judges found no merit in the grounds and disagreed that the judge had erred. They posited that the judge had carefully considered the assertion made by the defence about Houston and found no factual basis for those assertions.

Noting that the maximum sentence for the offence was three years, the appellate judges further disagreed that the sentence was excessive.

“In the case at Bar, the complainant was a junior member of staff and the appellant was a senior member of the agency. He breached the safe environment within which any employee ought reasonably to expect while at the workplace, regardless of his or her position within the hierarchy of the organisation to which he or she is employed,” they said.

Attorneys-at law Keith Bishop, Andrew Graham and Roxanne Bailey represented the appellant.

tanesha.mundle@gleanerjm.com