Sentencing principles, specifically totality, were at the centre of arguments as the Caribbean Court of Justice (CCJ) concluded hearing a challenge against a 37-year jail sentence by rape convict Linton Pompey.
The proceedings were viewed via live broadcast from the court’s Trinidad headquarters.
Nigel Hughes in association with Ronald Daniels appeared for Pompey, while the State is being represented Director of Public Prosecutions (DPP) Shalimar Ali-Hack and State Counsel Natasha Backer and Teshanna Lake.
The appeal was heard by the full bench comprising the court’s President Justice Adrian Saunders and Justices Winston Anderson, Denys Barrow, Jacob Witt, Maureen Rajnauth-Lee, Andrew Burgess and Peter Jamadar
In September 2015, Pompey, 43, who is said to be a father of 12, was convicted by a 12-person jury for sexually assaulting a 14-year-old girl, by fondling her breasts, between May 1 and May 21, 2011. He was also convicted on two counts of rape committed on the same girl between June 1 and June 13, 2011 and January 10, 2012, respectively
On the first count of rape, the trial judge imposed a sentence of 15 years. A 17-year sentence was imposed on the second count of rape. Pompey was sentenced to five years imprisonment on the sexual assault charge. The judge ordered that the sentences are to be served consecutively. Pompey’s total sentence stands at 37 years.
Pompey’s lawyers are contending that the sentences were all excessive having considered the facts by the prosecution and the manner in which the offences were committed.
Asked by the court why the sentence was excessive, Hughes acknowledged that rape, itself by definition, is considered a violent offence. He however submitted that apart from the fact that there was no consent, there was no evidence to show some degree of planning on his client’s part. Hughes went further to point out that there is no evidence to show extreme violence or restraint.Referencing the sentences imposed for murder and manslaughter in which a life is “actually” lost, Hughes insisted that a sentence of 17 years, in this particular case is excessive. Interjecting was President Saunders, who told Hughes that the 17-year sentence has to be viewed against the backdrop that on the third occasion his client committed another sexual offence on the young girl, as well as it was a crime of opportunity, which Hughes had earlier on alluded to.
Saunders asked, “So, had he not been caught then. Heaven knows how long he may have gone on preying on this young lady. So, in other words, I think you are making too lightly of the circumstances.” Responding, Hughes said, “I am not treating it lightly, comparatively in the absence of any particular [sentencing] guidelines, this compared to other offences where there have been similar convictions.”
Weighing in, Justice Witt asked Hughes to look at similar offences instead of comparing the sentence to those imposed for other offences. The judge explained that when sentences are decided for certain criminal offences there is usually a base, added to that, the considering of aggravating and mitigating factors to arrive at a reasonable sentence. But Hughes pointed out that there is a lack of consistency across the bench with regards to sentencing.
In Pompey’s case, a sentence of 15 to 17 years is perhaps not extraordinary in the circumstances, not a base; but down the middle, Hughes submitted. Justice Anderson reminded Hughes that the maximum penalty for rape under the laws of Guyana is life imprisonment. But, the Judge then sought to inquire from Hughes what does life mean, in practical terms. According to Hughes, it is 20 years imprisonment with a prison year being nine months.
The DPP, in her submissions, called Pompey a sexual predator, an adult who preyed on a child. She said she searched the records of appeal but did not find any mitigating factors. “Does it warrant 37 years?” asked Justice Anderson of Ali-Hack. The DPP confidently responded “yes”. She pointed out that sexual offences are becoming more and more prevalent in society.
In fact, she brought to the court’s attention that over recent years sexual offences have been accounting for more than half of the cases for trial at the Demerara Assizes. Although she agreed with Justice Anderson that Pompey did not use a knife during the commissioning of the offence, she said that he did it in a family setting and abused a position of trust.
“He may not have used excessive violence because of the circumstances and his predatory disposition,” the DPP submitted to the CCJ. Ali-Hack even suggested that a base of 25 years would be appropriate in the circumstances of this case, as every case has to be tried on its own facts. “Counsel 25 years…starting point?” asked Justice Denys Barrow.
Justice Barrow said that a starting point had to be what in an ordinary case is not excessive or very mild. He then asked the DPP to consider a starting point of 25 years when aggravating factors still have to be taken into account. The DPP said it would arrive at a sentence of 37 years. “For one count?” Justice Barrow queried.
President Saunders, on the other hand, said that the issue was whether the 17-year sentence imposed for the second count of rape was excessive. He told the DPP: “What is relevant is for you to tell me the principle of that condition, whether sentences that are resulting from counts on a single indictment should be made to run consecutively or concurrently. There are principles that govern this. I would like to hear whether in this particular case the application of those principles warrants the sentences to run concurrently.”
“What I have a difficulty with is the prosecution taking the view that he should have gotten a lot more than 17 [years], but he got 17, so let’s make them all consecutive so that he will get 37. To me that is not a proper approach, that is not a principled approach to the issue of whether these sentences should run consecutively or concurrently. There are principles that govern whether sentences should run consecutively or concurrently.”
Referencing Blackstone’s Criminal Practice Supplement, Ali-Hack said that consecutive sentence can be granted to the appellant when it is the same victim and in cases of sexual and domestic violence committed against the same individual, “as we have in this case, over a period of eight months against a child, a very vulnerable person.”
President Saunders responded, “The judge did not give him 15 years on the second rape. The judge gave him 17 [because it was a repeated offence] already; it was taken into account some aspect, some notion of the same matter that underline the totality principle.”
He continued, “In other words, the judge would have considered look, you would have done this thing before and therefore I am going to up the sentence. If in addition to that you make it consecutive, then it seems to me that you are inappropriately doing a second time, what you did the first time, i.e., you are counting twice the aggravating factor that this was a subsequent occasion that he was doing this to the same victim.”
President Saunders went on to ask the DPP what if Pompey had placed a knife to the girl’s throat, or ripped her clothing, or damaged her private part?” The DPP suggested that a life sentence, the maximum penalty for rape, would have been appropriate in these circumstances. “But if he had gotten life imprisonment, he could not have gotten another sentence consecutive to life,” said Justice Barrow to the DPP.
Justifying why the court should affirm the 37–year sentence, the DPP said that the penalogical objective of a sentence includes rehabilitation, punishment, deterrence and public interest. She said that a prison year in Guyana is eight months and that prisoners are entitled to parole if they are of good behaviour, so even though he got a sentence of 37 years, he might not serve it all. She further submitted that the maximum penalty for sexual assault is 10 years, but Pompey was given half – five years.
The DPP asked the court to find that the sentences were not excessive. Justice Witt during the hearing pointed out that sentencing need to have some rational basis so that we do not go into the emotions too much.
The CCJ has reserved its judgment in this case
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