Child molester’s jail time cut

A child molester who raped his six-year-old niece months after he committed a sex act on the child has had his 36-year prison sentence slashed in half by the Court of Appeal.

The Gleaner has taken the decision not to publish his name, so as to protect the identity of the child.

Her uncle was 20 years old at the time of the 2017 crimes, which occurred when they both resided in an eastern parish, according to court records.

The assaults first came to light in February 2018 after the then six-year-old, who had repeatedly complained of pain and itching in her private area, was examined by a doctor who confirmed that she was infected with gonorrhoea and chlamydia, and that she had no hymen.

Prosecutors, citing a social inquiry report, suggested that the sexually transmitted infections (STIs) resulted from the crimes, but there was no medical evidence to confirm it.

The child molester pleaded guilty on February 5, 2018 to rape and grievous sexual assault, which involved the use of his fingers.

He was sentenced to 18 years in prison at hard labour on each charge, with an order by the court that they should be served consecutively, “resulting in an aggregate sentence of 36 years imprisonment”, according to a transcript of the trial published by the Court of Appeal.

The judge who presided over the trial also ordered that he should serve 20 years before being eligible for parole.

Social enquiry

Before imposing the punishment, the trial judge rebuked residents from the community who indicated in a social enquiry report that the convicted child molester was a “good youth” and asked for leniency.

“I frown on that community because clearly, the people who live in that community do not understand what has happened to that child or to that family,” the judge said, according to the transcript.

“For them to say that you should be given leniency by this court, means that it is not a community that I should have any regard for. They have fallen prey to the cultural norm that it is okay to have sex with children, which is too pervasive in this parish in particular and in Jamaica as a whole. So I disregard what the community has to say entirely.”

However, in a ruling handed down last Friday, both sentences were set aside by a panel of three appeal court judges and replaced with 17 years and six months for the rape conviction, and 16 years and two months for grievous sexual assault conviction, to be served concurrently.

The Court of Appeal judges also ordered that the convicted child molester serve a minimum of 10 years in prison on each count before he is eligible for parole, and that the clock on his punishment should start from July 5, 2018 – the date the discarded sentences were imposed.

In July 2019, a single judge of the Court of Appeal refused an application by the child molester for permission to challenge the original sentences.

‘Harsh and excessive’

He argued at the time that they were “harsh and excessive and cannot be justified” based on the facts of the case.

He asserted, too, that the trial judge did not “temper justice with mercy”, arguing that his guilty plea was not taken into consideration.

The convicted sex offender retained attorney Emily Shields and mounted a second challenge to his sentence last year before the Court of Appeal – Jamaica’s second-highest court.

He contended, during the second application, that the judge who presided over his trial erred in accepting a “contested aggravating fact” posited by prosecutors that the six-year-old contracted the two STIs and then used it in a way that was “extremely adverse” to him, even though it was not proven beyond a reasonable doubt.

Citing the totality principle, the child molester argued, too, that the trial judge erred by ordering that the sentences be served consecutively “in circumstances where the offences, though revolting, are of a similar nature; [were] committed over a short period of time; and against the same victim”, according to the transcript.

The totality principle requires a judge, when sentencing an offender for multiple offences, to impose a punishment that reflects all the offending behaviour before the court and must be just and proportionate.

“We have concluded that, based on the totality principle, the sentence imposed was manifestly excessive,” the panel of Appeal Court judges ruled.

Prosecutors also conceded that the order for the child molester to serve consecutive 18-year sentences breached the totality principle.

The child molester also complained that the trial judge failed to give any weight, as a mitigating factor, to the commendations by residents from the community, which were included in the social enquiry report.

This assertion was dismissed by the panel of appeal court judges.

However, the panel of appeal court judges noted, in their ruling, that the convicted sex offender was never tested for the STIs contracted by the child and was never charged with any offence relating to them.

They acknowledged as understandable the trial judge’s abhorrence of the fact that the child is “suffering and cannot be treated due to her tender age”, but said the nexus between that fact and the assault was not established.

“The applicant [convict], through his counsel [attorney], has denied responsibility for the complainant’s affliction. In those circumstances, the benefit of the doubt ought to have been given to the applicant,” the panel of appeal court judges concluded.

They said comments made by the judge during the sentencing hearing made it “clear” that the trial judge concluded that the six-year-old contracted the STIs as a result of the assaults and then used it as the basis to set a starting point of 25 years in prison for the convicted child molester.

Under Jamaica’s sentencing guidelines, judges are required to set a starting point for the sentence they intend to impose, then add and subtract time based on the aggravating and mitigating factors in the case.

“In the absence of any medical evidence or the applicant’s admission that he had those diseases, it could only be suspected that he was the source of the complainant’s infection. The learned judge erred when she used it to set the starting point,” the panel of judges said.

livern.barrett@gleanerjm.com