Appeal court affirms guard’s sentence for rape

A security guard who was sentenced to 18 years in prison for raping a woman in a company vehicle while on duty has lost his appeal against his sentence and conviction.

Oneil Forrest raped the victim in September 2015 after she and her father’s girlfriend sought help from him and his colleague to gain entry to her house in Phoenix Vista, St Catherine.

Forrest was sentenced in May 2018, with a stipulation that he serve 12 years before parole consideration.

He appealed the sentence and conviction on several grounds, including that the sentence was manifestly excessive, that the trial judge misdirected the jury in her treatment of the jury’s failure to arrive at a unanimous verdict, and also that the trial judge erred by not leaving for the jury’s consideration the lesser, alternative offence of indecent assault.

But the Court of Appeal, in a judgment published on March 31, refused the appeal while affirming the 18-year sentence and the pre-parole period.

The complainant gave evidence that on the day in question her father’s girlfriend, JA, sought help from Forrest and Kenroy Bailey to gain entry to her home as she had forgotten her house key.

The two women continued home and were able to gain access to the house with a neighbour’s help.

But shortly after, the men called and were given directions by JA to her home.

On their arrival, JA requested their help in transporting some items to a train line at Gregory Park in the parish.

The men complied and carried the women back home. However, when they arrived, JA and Bailey exited the car.

The complainant and Forrest engaged in conversation before leaving the area and returning with Forrest, who had an errand to run.

ALLEGED INCIDENT

On her return, Forrest asked for a kiss and she refused. He then asked for a hug and was told by the complainant, “Not even my mother I don’t hug.” Shortly after Forrest moved over her seat and started touching her against her will before raping her despite her protest.

During the act, the complainant told Forrest that she needed to urinate. He released her and she left the car and began walking away.

Forrest then exited the car and held on to her and she shouted out to JA, who exited the house and was told what had happened.

Forrest denied the incident.

The complainant, who ran away and hid, later reported the matter.

During the trial, Bailey testified that while inside the house, he heard the complainant screaming and when he went to enquire, Forrest told him that she was screaming because she wanted to get out of the car to urinate.

Forrest had denied beating the complainant or preventing her from exiting the car.

But Bailey said when he later asked Forrest if he had sexual intercourse with the complainant, his response was that he would not call that sex and that he did not ejaculate.

In his defence, Forrest denied raping the complainant. However, he claimed the woman had been smoking marijuana before he started kissing her on the neck without any resistance.

During the appeal hearing, attorney-at-law Robert Fletcher argued that the trial judge had “planted seeds of pressure” when she was advised by the jury that they were unable to reach a unanimous verdict.

THIN LINE

Fletcher further pointed out that the trial judge must be careful not to cross the thin line between encouraging the jury to continue to deliberate in an effort to arrive at a unanimous verdict and exerting pressure on them to do so.

However, the Court of Appeal found that the judge had not exerted any pressure on the jury and that the judge was duty-bound to assist, having been told that the jury was divided four to three.

Fletcher also argued that the judge should have directed the jury to consider the lesser charge as his client had insisted that he had not raped the complainant and had admitted to attempting some sort of sexual interaction.

However, the appellate judges said that when the evidence is considered as a whole, including Bailey’s account of what Forrest told him, there was no “obvious basis” on which the applicant could have reasonably been convicted of the offence of indecent assault.

Furthermore, they said there was no error on the judge’s part as the elements required to prove rape were present.

As it relates to the sentencing being excessive, the judges disagreed.

The appellate court judges noted that the trial judge had erred by failing to conduct any mathematical computation to account for the aggravating and mitigating factors as well as treating the appellant’s maintenance of his innocence as an aggravating factor.

Owing to that, the Court of Appeal considered the sentence afresh, with a starting point of 15 years with aggravating factors, including Forrest’s breach of trust, his being on duty, and committing the offence in the company’s car, and the circumstance in which both parties had met.

The mitigating factors identified were that he was gainfully employed and that there was no use of weapons or additional use of violence during the sexual assault. Following the computation, the judges arrived at 18 years.

Attorney-at-law Sasha Shaw also represented Forrest, while Kameisha Johnson O’Connor appeared for the Crown.

tanesha.mundle@gleanerjm.com