The Queen v Jumanie Lionel et al

SAINT LUCIA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. SLUCRD2015/1860, 1899, 1900, 1989, 1990, 1991 BETWEEN: THE QUEEN Complainant -v- 1. JUMANIE LIONEL 2. KAREEM FRANCIS Defendants Appearances: Ms. Isa Cyril for the Crown Mr. Al Elliot for the Second Defendant Kareem Francis The First Defendant Jumanie Lionel in person. ____________________ 2017: April 24. ____________________ DECISION ON SENTENCING Sentence— Double Rape committed in course of Burglary — Sentencing Guidelines – Aggravating and Mitigating Factors. Appropriate starting point in cases of rape committed in course of burglary. – Charges arising out of single episode – whether sentences should be concurrent sentences or consecutive sentences

[1]Taylor –Alexander J (Ag): The Defendants were each indicted, on two counts of Rape and one count of Burglary occurring on the 2nd of November 2015. At the Sufficiency Hearing the Defendants indicated their intention to plead guilty to the offences and they were placed on the early guilty plea scheme.1 The Defendants formally entered pleas of guilty to the indictments on the 12th of December 2016. The Defendants are now to be sentenced. The Facts Supporting the Indictment/s

[2]The Virtual Complainants (whom I shall refer to as V.C 1 and V.C 2) were both 16 year old students attending a tertiary level learning institution in Saint Lucia. The two females both hailed from the south of the island and their parents relocated them to the north of the island, to an apartment, to make their attendance at the institution more accessible. On the night of the 2nd of November 2015, the Virtual Complainants were in their apartment when the Defendants came through their front door which had been left slightly ajar. The Defendants obscured their appearances by tying tee shirts around their faces. They brandished a gun and a knife. The gun was immediately pointed at the face of V.C1 and she was asked not to make a sound. Both V.C 1 and V.C 2 were tied up and placed in a sitting position on the floor. Their apartment was searched for money and valuables. At a point, they were untied and V.C 1 was placed to sit on the bed in the bedroom, V.C 2 was led into the bathroom to look for valuables. What ensued were the morally and physically reprehensible acts commonly associated with cases of rape. The Defendants each took turns in sexually assaulting one and then the other of the Virtual Complainants in various positions and locations in the apartment. One of the Virtual Complainants was a virgin and was visibly bleeding after the assault. After the assaults they were again tied up and they were gagged. V.C1 was covered with a blanket to cover her naked body. The Defendants threatened to kill the Virtual Complainants if they spoke of the incident, thereafter the Defendants fled.

[3]These facts were accepted by the Defendants.

Plea in Mitigation of Jumanie Lionel

[4]Jumanie Lionel was unrepresented. He asked the court to be merciful in the sentence it imposed on him and asked the Court to consider the very hard childhood he has endured. He stated that for as long as he could remember he has been without parental guidance and had to fend for himself from as early as age 8. He states that he had to steal to clothe himself, steal to feed himself and to survive. He stated that what he did to V.C 1 and V.C 2 brings tears to his eyes and shame to his heart. Day after day he prays to god for forgiveness. He acknowledged that he has caused irreversible pain. He begs for prayers including from the Virtual Complainants to help him absolve himself from the hideous sin of this crime.

Plea in Mitigation of Kareem Francis

[5]Kareem Francis is now 23 years old and was 22 at the time of the commission of the offences. Counsel Mr Al Elliot who appeared for this Defendant stated that although this Defendant‟s contrition was not expressed outright in his statement under caution, he is clearly remorseful as he admitted his guilt from his arrest, in a very detailed statement, given under caution, to the investigating police. He has therefore saved judicial time, has obviated the need for trial and has spared the Virtual Complainants the indignity of reliving the events at trial. Mr. Elliot drew the court‟s attention to this Defendant‟s statement that he had set out to commit robbery and not to commit rape and in fact, during the event, when he noticed that the other Defendant was locked away in the bathroom violating V.C 2, he had exclaimed that he “did not believe that is what he was doing there”. The Defendant stated that he cannot explain what overcame him and caused him to commit this heinous violation of another human being. In a statement he wrote to the court and to the Virtual Complainants, pleaded for leniency and forgiveness on his and Jumanie‟s behalf. He took responsibility being the older of the two Defendants, for what he characterised as inhumane, unjust and horrible offences. He blamed his excessive consumption of marijuana and alcohol before the event. He acknowledged that he brought shame on his family and his community. He expressed deep sorrow for hurting the Virtual Complainants and their families. He stated that he is not proud of his actions and assured the court that there will never be a recurrence, of that behaviour on his part.

[6]Mr. Al Elliot urged the court to be forgiving in the sentencing of this Defendant for the following reasons:─ (i) He has no previous convictions; (ii) He is deeply remorseful; (iii) He is of previous good character; (iv) He had been gainfully employed immediately prior to the incident; (v) He had succumb to the peer pressure of the other Defendant who was clearly the leader.

The Pre-Sentence Reports

[7]Pre-Sentence Reports are intended to inform and assist the sentencing process. It provides the court with relevant information about the background, personal circumstances and attitude of a convicted person towards the offence, his character, physical and mental condition. I have relied on the reports to advise me on the suitability of sentence and rehabilitation measures, I may wish to apply to the sentence.

Jumanie Lionel

[8]Ms Alina Auguste helpfully prepared the pre-sentence report in respect of Jumanie Lionel. This is what her enquiry revealed. The Defendant is a first time offender. He is 17 years old and is categorised as a “troubled young man”. He was born of a single teen mother and an alcoholic father. The Defendant has lived largely in an unstable home environment. He is the third child of both parents. He moved frequently during his childhood and early teen years to live with different family members but spent the longest period of time with his paternal grandmother in the community of Babonneau. Before this, he lived briefly with his parents but due to their conflictive relationship and lack of finance, he was sent to live with his paternal grandmother from the age of two (2). The Defendant reported that he was frustrated with his living situation and would quarrel with his grandmother and older relatives. The situation escalated and his relatives asked him to leave the house. He went through a period of homelessness, sleeping for short periods of time, at the houses of different persons and also became a ward of the Boys Training Centre. He expressed feelings of rejection stating that he has never been cared for.

[9]In an interview with a Counsellor at the Boys Training Centre, it was confirmed that this Defendant had a history of issues that included homelessness and having to sleep on the streets and beach areas. The Counsellor stated that this situation made the Defendant vulnerable to being sexually and emotionally abused from an early age and indicated that during the period at the Boys Training Centre he struggled with the issue of pornography and would sometimes leave the dorm room at nights in search of pornographic material.

[10]In an interview with the Defendant‟s mother, Leah Lionel, she indicated that she never had a relationship with the Defendant‟s father and at the time of her pregnancy was involved in a relationship with another man in the community. Ms Lionel stated that the Defendant was a product of her only sexual encounter with the Defendant‟s father with whom she had a very conflictive relationship. She stated that she was unable to financially care and provide for the Defendant because she had him in her mid-teen years and did not have family support. The Defendant lived with her for one (1) month in his early teens, but ran away after stealing money from her. She stated that she has not seen her son in a long time and is unable to do so because she has a one month old baby and is unable to visit him due to financial hardship. She is saddened that her son‟s life has evolved in such a negative manner. She stated that she grew up being a victim of sexual abuse, was also homeless at some point in her life and did not want the Defendant to have a similar experience. She indicated that because of her personal circumstances, she is unable to assist the Defendant with housing at all.

[11]The Defendant‟s father, stated that he struggles with the use of alcohol but is willing to assist his son in any possible manner, although he states that he does not have the resources to care for him. Mr. John stated that his son lived with him on some occasions but it did not work out as the Defendant would not cooperate with any form of household rules. Other sentiments from family members are that the Defendant can be defiant, steals frequently, would listen attentively when he was cautioned about his behaviour and would agree to change, but would not follow through with his actions. Members of the community did not perceive the Defendant as a threat to them, but as a young person in need of serious intervention and attention.

[12]The Defendant himself told the probation officer that he does not have a close relationship with his mother or his father, whom he said have not visited him during his period on remand. The Defendant shared a close relationship with a mentor, Ms. Theresa Alexander who had been to visit him at the facility. This was confirmed by Ms. Alexander who stated that she was a mentor to the Defendant but was horrified when she learnt of his actions. She described him as a smart and pleasant young man who is detached emotionally.

[13]The Defendant does not have a fixed place of abode and has nowhere to go after he leaves the Bordelais Correctional Facility. He stated that despite staying with several relatives, he always felt like a burden to them. He stated that he often roamed the streets of the city and would sleep at friends‟ homes. The Defendant confirmed that he smokes marijuana regularly and started smoking tobacco from age 6 years. The Defendant dropped out of Secondary school in the Fourth Form. He expresses a desire to continue his education.

[14]In her risk assessment, the probation officer‟s conclusion was that there were a number of risk factors present that explained the Defendant‟s social behaviour. These are; a chaotic childhood; sexual abuse; unemployment; use of cannabis; dropping out of school; and association with unsavoury characters.

Kareem Francis

[15]The probation report in relation to this Defendant was helpfully prepared by Ms. Khafka Alexander. This Defendant is the first of his mother‟s three sons. His mother Ms Ava Francis informed that the Defendant was born out of the then casual relationship between her and the Defendant‟s father. Ms. Francis said that the Defendant‟s father assisted with his financial needs, but offered no emotional support.

[16]This Defendant resided with his maternal grandmother between the ages of two (2) and sixteen (16) years, but his mother communicated with him and/or visited him daily. His mother described her son as a well-behaved son who enjoys listening to music, surfing the internet and playing computer games. She said that over a five-year period, in his late teenage years he socialised with questionable characters and she believed that as a result of her constant prodding, he began to change. She described the Defendant as kind, loving and helpful. She noted that he is especially helpful at home, as he performs household chores without being asked. His mother stated that she was surprised by the Defendant‟s actions in this case, given that she raised the Defendant to know the difference between right and wrong. She especially taught him to respect women. She expressed disappointment in the Defendant, given her personal life experiences and struggles, which she had disclosed to him. The Defendant shares a very good relationship with his mother and siblings. He spends his spare time at home watching television and playing music.

[17]The Defendant feels that he had a „rough‟ childhood at school as he was disrespected and called derogatory names because he had a cleft palate. He explained that his father financially supported him but not emotionally. His father is a Police Officer, and when he began socializing with bad company, his father cautioned him, but he did not take heed and their relationship became strained. He said when he eventually stopped socializing with the bad influences, the relationship with his father improved somewhat, but it is currently far from where he desires it to be. The Defendant craves a better relationship with his father, but believes that the effort is lacking on both their parts. His father did not make himself available for interview with the Probation Officer.

[18]Investigations in the community reveal that the Defendant is not known to be a trouble maker. Enquiries made by the Probation officer also revealed that, he assists an elderly lady with her household chores from time to time which include, accompanying her to the doctor and preparing meals for her. Family, friends and relatives were surprised and disappointed with the Defendant in this matter. They explained that he is a quiet and soft-spoken individual who often displays tremendous helpfulness. Another individual informed that he often fixes electronic gadgets, while most persons added that he spends most of his time indoors. By his own admission, the Defendant admitted to having anger management issues. He admitted that he has been advised by relatives and neighbours alike that he needs to address his anger issues. He expressed a desire to receive anger management counselling.

[19]The Defendant attended the St. Aloysius R. C. Boys‟ Primary School where he was an avid Calypsonian who won at least one competition. He then attended the Castries Comprehensive Secondary School. He was suspended often, and although he recalled writing some CXC examinations, he could not recall the number of subjects he passed. His mother indicated that he was often suspended for being the „class-clown‟ and for his negative responses when provoked by other students. The Defendant is literate, and desires to further his studies in electrical installation.

[20]The Defendant worked at a clothing store on weekends and during the summer school vacation while he attended the Castries Comprehensive Secondary School. He worked as a Labourer in the Construction Industry, as well as an assistant to a mechanic. He was last employed as a Chef at Brooklyn Pizza. The Manager of the establishment, confirmed that the Defendant worked at Brooklyn Pizza in the capacity of a Chef from September 2015, until the time of his arrest. He is described as hard-working, reliable and a very helpful worker who often went beyond the call of duty to accomplish tasks.

[21]This Defendant‟s mother expressed deep anger at Jumanie Lionel, the other Defendant; for she believed that he influenced her son into committing the crime. She stated that she had attempted to do a good thing for Jumanie Lionel by inviting him to live at her home with her boys just one week prior to the event. He had been on the street with nowhere to live and she had offered him a home. In the short period that he lived with them he influenced her son who had never been in trouble with the law before to commit this heinous crime.

The Victim Impact Statements

[22]Both of the Virtual Complainants submitted statements to the probation services. The following summarises their statements:─ ( V.C 1)

[23]She stated that the effect of the sexual assault on her, had short term and continues to have long term impact. It was a total upheaval of her life as she knew it. She has been regularly seeing a clinical psychologist and has been diagnosed with various issues arising from the event including: Anxiety, Post-Traumatic Stress Disorder (PTSD), Obsessive Compulsive Disorder (OCD), and Insomnia. She is on prescribed medication to help with the insomnia. She was diagnosed with PTSD, as she has constant flashbacks and panic attacks which trigger emotional breakdowns. It also fostered a fear of going out at night, especially to the north of the island where the incident took place. She induces sleep often, with sleeping pills, in an effort to control her thoughts and flashbacks.

[24]The OCD manifests by her having to check every single window in her house before she sleeps, otherwise she remains up all night. Slight noises heard outside make her paranoid. She went back to school two weeks after the incident, and faced a lot of unsettling reactions from students at school; those who blamed her for it happening; and those who were unsure how to act around her.

[25]Her motivation for school fluctuates. She is not always keen to socialize with students, based on how she feels emotionally and mentally. She has significant issues trusting any person of the opposite sex after the incident. She does not always feel like being around members of her family or members of the wider community. She gets angry at persons who show her pity. She started self-harming, although she admits that she no longer does it, because it disappointed her family. She continues to have thoughts of wanting to die. She stated that it is emotionally draining to pretend that everything is fine when she is in places, such as school, but she does it, as she does not want to be questioned by other students.

[26]She stated that she has made new friends who she assumes don‟t know what had happened to her but who make jokes relating to sexual assault, which is unsettling. (V.C 2)

[27]V.C 2 stated that being raped was the worst thing that had ever happened to her. The Defendants‟ she says, were strangers, they were unpleasant and they were unforgettable. She said she was violated in the comfort of her own home, and she was made me feel helpless, useless and disgusting. She said she was not only robbed of her personal belongings but of her dignity. For weeks after the incident she felt uncomfortable in crowds, especially amongst males. Standing in line at a crowded supermarket became unbearable for her. She was not able to run errands for her mother, without feeling like everybody knew how she had been violated.

[28]Psychologically her life has changed forever. Her emotions are no longer intact. She is triggered by the tiniest things that make her burst into tears. She has had to resort to counselling to help her cope with her erratic emotions. She suffers with anxiety attacks and has fears of walking outside alone, the fear of black males walking in groups terrifies her. She is trying to move on and to live her life but there are times when certain smells and words trigger her, and her mind goes right back to the night that changed her life forever. Her heart continues to be filled with hurt and hatred. The Law and Principles on Sentencing

[29]The offences of Rape and Burglary are governed under sections 123 and 207 respectively of the Criminal Code, Cap 3.01 of the Revised Laws of Saint Lucia. The Code prescribes a maximum penalty of life imprisonment for a person convicted of Rape and 20 years for a person convicted of Burglary.

[30]Judicial discretion is preserved under Section 1097 of the Criminal Code which acknowledges the ability of the court to sentence an offender to a term not exceeding the statutory maximum provided that the sentence is commensurate with the seriousness of the offence or the combination of offences and where the offence is of a violent or sexual nature, as is in the opinion of the court is necessary to protect the public from serious harm from the offender. Section 1102 of the Criminal Code legislates General Judicial Guidelines that provide inter alia that the rehabilitation of the offender is one of the aims of sentencing and that the gravity of a punishment must be commensurate with the gravity of the offence;

[31]I am also guided by the principles of sentencing accepted by our court in Desmond Baptiste v The Queen Crim App No. of 2003. These are retribution, deterrence, prevention and rehabilitation. Those principles are to be applied to the facts of every case to see which of them has the greatest importance in the case.

[32]Rape is a morally and physically reprehensible crime in any society, it is an assault on the body, mind and privacy of the victim. It defiles the soul of a female and offends her esteem and her dignity for which there should be no tolerance in a civilized society. It continues nevertheless as a prevalent crime in our society. The Parliament of Saint Lucia by the imposition of the severe penalty of life, has registered the society‟s intolerance of perpetrators who abuse women in this primitive, abhorrent way. The lasting impact of this offence on the Virtual Complainants is palpable. They are struggling to regain composure of their lives when prior to they had been confident, self-assured young ladies on an academic path to success. The Court in imposing a sentence must be mindful of the impact on the victims and society intolerance of these offences.

[33]As regards rehabilitation, both Defendants are young men who can benefit from an intense rehabilitation program. The Defendant Jumanie Lionel has no fixed place of abode. He had been made a ward of the state from a young age and lived at the Boys Training Centre (BTC) intermittently throughout his life until age 17. He however did not do his CSEC examinations as he dropped out in form four. This Defendant can therefore benefit from rehabilitation. Kareem Francis too, can benefit from the Anger Management counselling, continuing his education, and from building his self-esteem. These were the issues caught by the Pre-sentence report that contributed to the Defendants incursion into crime.

[34]The Defendants are from different social backgrounds. Kareem Francis had the support of his mother and siblings, and though he longed for a closer relationship with his father, there was the presence of a father who exercised discipline sometimes and catered for his financial needs. The case of Jumanie Lionel on the other hand is particularly challenging. This Defendant is a product of years of neglect; by his parents and family who abdicated their legal and moral responsibility to a child and neglect by society who has failed in its implementation of adequate and appropriate safety and remedial measures, that ought to be triggered where parents fail in their responsibilities.

[35]Having assessed the circumstances of this case, it is my view that retribution, general deterrence and rehabilitation should predominate.

Starting point

[36]Our Court of Appeal in R v Winston Joseph and Others Saint Lucia Criminal Appeal Nos. 4, 8 & 7 of 2000 has issued sentencing guidelines in matters of sexual offences so that by an application of the guideline, the court can achieve a degree of consistency which commends itself as rational and just. These are appreciated as guidelines. Ultimately the sentence imposed must involve a comprehensive analysis of the peculiar facts and circumstances, the evaluation of the aggravating and mitigating factors and the pre-sentence reports.2

[37]In Winston Joseph the Court opined that: (i) for rape committed on an adult without aggravating or mitigating features a figure of 8 years should be taken as the starting point in a contested case with a minimum of 3 years on a plea of guilty. (ii) Where the rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living or by a person who abducts the victim and holds her captive the starting point should be 10 years. (iii) At the top of the scale is a Defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years to life or more may be appropriate. (iv) Where a Defendant, were he to remain at large, would represent a danger to women for an indefinite time a sentence of 20 years to life is appropriate.

[38]The circumstances of this offence warrant only a custodial sentence. This case falls squarely into sub category II identified by Winston Joseph. I therefore take as a starting point a sentence of 10 years.

[39]I have taken the following as the applicable aggravating and mitigating factors:- Aggravating factors i. The victims have suffered physically and psychologically from the sexual assault; ii. Violence was used to commit the offence, the V.C.‟s were threatened with weapons; iii. The V.C.‟s were very young. There were both 16 years old. iv. The prevalence of both the offences of Burglary and of Rape Mitigating factors i. The Defendants early guilty plea. They confessed at the outset of the investigation; ii. The Defendants sincere remorse and contrition; iii. The Defendants are first time offender and are relatively young.

[40]The Defendants early plea have spared the victims the trauma of having to relive and testify of this incident. They are first time offenders and there is nothing to suggest a predilection for this type of behaviour. I have also considered the youth of the Defendants in particular Jumanie Lionel who was 17 at the time of the incident. These are all relevant considerations, nevertheless it is inescapable the Defendants intentions at criminal behaviour on the night in question. The Defendants in their own evidence reveal that they lay in wait for the right opportunity to enter the apartment of the young females who were chosen at random. Having relieved them of the money and other possessions the Defendants chose to further humiliate them by raping them. The presentence report reveals that the Virtual Complainants suffered and continue to suffer psychological harm. Both have received counselling and continue in therapy for various psychological disorders. Both of the Virtual Complainants have stated that they have been impaired for life.

[41]It is also overwhelming the increasing frequency with which such offences traverse the court. Regard is had to the Criminal Division report for 2016 for St. Lucia, which indicates that the most frequent offences filed for the year 2016 were Robbery/theft/burglary, seconded by Sexual Offences. In fact in 2016 alone there were 46 cases of sexual offences filed in the High Court. In DPP v Jahmari Lake and Leon Jederon SKBHCR2012/0027, a case with striking similarity to this one, Thomas J acknowledging the prevalence of these types of offences opined that the protection of society must be an overriding consideration. The aggravating factors clearly outweigh the mitigating factors and this must be reflected in the sentence imposed. I have therefore discounted the starting point largely for the early guilty plea. The Defendants are each sentenced to 7 years imprisonment.

[42]For the offence of Burglary a benchmark of eight years has been fixed in St.Lucia. I have given consideration to the circumstances under which the offence was committed, including that the virtual complainants were bound and were threatened with a firearm and a knife as aggravating factors. I have considered the Defendants youth, the fact that they had no previous convictions, and their very early intimation of guilt for which they are credited with the full 1/3 discount. The Defendants are each sentenced to four years on the offence of Burglary.

Concurrent or Consecutive Sentences

[43]When sentencing an offender for more than one offence, the court must ensure that the sentence handed down is just and appropriate given the overall criminality of the offending behaviour. Generally, sentences for offences that occur at separate occasions will be served consecutively, while offences that arise out of the same transaction will typically be concurrent. In this case, although arising out of the same circumstances, each Defendant, rape two persons and each V.C. has individually suffered the impact of the rape. In R v Evans [2016] EWCA Crim 31 – JCL 80 (224) the Court of Appeal of England and Wales offered the following guidance: “there exists a general principle that consecutive terms of imprisonment should not generally be imposed in respect of offences which arise out of a single incident (see for example R v Noble [2002] EWCA Crim 1713). However, according to Lord Judge CJ in Attorney General's Reference No. 57 of 2009 [2009] EWCA Crim 2555 (at para 28), 'examples abound of occasions where consecutive sentences are justifiably imposed … This tends to occur where distinct offences are committed in circumstances where the offences, although distinct, can properly be said to increase the relevant criminality.' There is therefore some judicial support both for the judge's decision to impose consecutive sentences in this case, and the Court of Appeal's reversal of this in favour of concurrent sentences…..”

[44]In that case the appellant had committed burglary with intent to steal and used violence against the occupier of the premises who had interrupted his offence. The Court of Appeal held that these offences did not form part of the same transaction and so the sentences could rightly be ordered to run consecutively.

[45]In R V H and Others [2011] EWCA Crim 2753 LORD Judge CJ, in the dicta on R v P said this:─ “The principles are long established and well recognised. Consecutive sentences should not normally be imposed when the individual counts arise from what in reality is the same incident. Nevertheless, the fact that offences may be committed within a short, even a very short span of time of each other is not necessarily conclusive. A close examination of the facts may reveal that distinct offences occurred, each independent of the other, and each calling for distinct punishment to reflect the offender's criminality where, in a case like this, each of the two offences represented the most serious harm and high culpability”

[46]Having assessed the circumstances of this case, I am of the firm conclusion that the correct approach to these events is that the Defendants and their victim were involved in two distinct and separate incidents, albeit consecutive, with one following immediately after the other. Each V.C was the victim of two distinct sexual violations, and as such consecutive penalties are appropriate.

[47]Having considered all of the above, I order that the second count of rape in respect of each Defendant be served partially cumulatively, such that the first four years of the second count is to run concurrently and the remaining three years is to be served consecutively.

[48]The sentence in relation to the offence of burglary is to be served concurrently. As such the Defendants are sentenced to a total of ten years with hard labour. They are to be credited with time spent on remand.

[49]The Defendants are also sentenced as follows: (i) Both Defendants are to be enrolled in the education programme at the Bordelais Correctional Facility. (ii) The Defendants are to be enrolled in any character building programs at the Facility that includes counselling and/or therapy sessions. (iii) The Defendants are both to attend drug and alcohol rehabilitation. (iv) The Defendants are to attend anger management rehabilitation offered at the Facility.

V. Georgis Taylor-Alexander

High Court Judge (Ag.)

BY THE COURT

REGISTRAR

SAINT LUCIA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. SLUCRD2015/1860, 1899, 1900, 1989, 1990, 1991 BETWEEN: THE QUEEN Complainant -v-

[1]Taylor –Alexander J (Ag): : The Defendants were each indicted, on two counts of Rape and one count of Burglary occurring on the 2 nd of November 2015. At the Sufficiency Hearing the Defendants indicated their intention to plead guilty to the offences and they were placed on the early guilty plea scheme.

[2]The Virtual Complainants (whom I shall refer to as V.C 1 and V.C 2) were both 16 year old students attending a tertiary level learning institution in Saint Lucia. The two females both hailed from the south of the island and their parents relocated them to the north of the island, to an apartment, to make their attendance at the institution more accessible. On the night of the 2 nd of November 2015, the Virtual Complainants were in their apartment when the Defendants came through their front door which had been left slightly ajar. The Defendants obscured their appearances by tying tee shirts around their faces. They brandished a gun and a knife. The gun was immediately pointed at the face of V.C1 and she was asked not to make a sound. Both V.C 1 and V.C 2 were tied up and placed in a sitting position on the floor. Their apartment was searched for money and valuables. At a point, they were untied and V.C 1 was placed to sit on the bed in the bedroom, V.C 2 was led into the bathroom to look for valuables. What ensued were the morally and physically reprehensible acts commonly associated with cases of rape. The Defendants each took turns in sexually assaulting one and then the other of the Virtual Complainants in various positions and locations in the apartment. One of the Virtual Complainants was a virgin and was visibly bleeding after the assault. After the assaults they were again tied up and they were gagged. V.C1 was covered with a blanket to cover her naked body. The Defendants threatened to kill the Virtual Complainants if they spoke of the incident, thereafter the Defendants fled.

[3]These facts were accepted by the Defendants. Plea in Mitigation of Jumanie Lionel

[1]The Defendants formally entered pleas of guilty to the indictments on the 12 th of December 2016. The Defendants are now to be sentenced. The Facts Supporting the Indictment/s

[4]Jumanie Lionel was unrepresented. He asked the court to be merciful in the sentence it imposed on him and asked the Court to consider the very hard childhood he has endured. He stated that for as long as he could remember he has been without parental guidance and had to fend for himself from as early as age 8. He states that he had to steal to clothe himself, steal to feed himself and to survive. He stated that what he did to V.C 1 and V.C 2 brings tears to his eyes and shame to his heart. Day after day he prays to god for forgiveness. He acknowledged that he has caused irreversible pain. He begs for prayers including from the Virtual Complainants to help him absolve himself from the hideous sin of this crime. Plea in Mitigation of Kareem Francis

[5]Kareem Francis is now 23 years old and was 22 at the time of the commission of the offences. Counsel Mr Al Elliot who appeared for this Defendant stated that although this Defendant’s contrition was not expressed outright in his statement under caution, he is clearly remorseful as he admitted his guilt from his arrest, in a very detailed statement, given under caution, to the investigating police. He has therefore saved judicial time, has obviated the need for trial and has spared the Virtual Complainants the indignity of reliving the events at trial. Mr. Elliot drew the court’s attention to this Defendant’s statement that he had set out to commit robbery and not to commit rape and in fact, during the event, when he noticed that the other Defendant was locked away in the bathroom violating V.C 2, he had exclaimed that he “did not believe that is what he was doing there”. The Defendant stated that he cannot explain what overcame him and caused him to commit this heinous violation of another human being. In a statement he wrote to the court and to the Virtual Complainants, pleaded for leniency and forgiveness on his and Jumanie’s behalf. He took responsibility being the older of the two Defendants, for what he characterised as inhumane, unjust and horrible offences. He blamed his excessive consumption of marijuana and alcohol before the event. He acknowledged that he brought shame on his family and his community. He expressed deep sorrow for hurting the Virtual Complainants and their families. He stated that he is not proud of his actions and assured the court that there will never be a recurrence, of that behaviour on his part.

[6]Mr. Al Elliot urged the court to be forgiving in the sentencing of this Defendant for the following reasons:─ (i) He has no previous convictions; (ii) He is deeply remorseful; (iii) He is of previous good character; (iv) He had been gainfully employed immediately prior to the incident; (v) He had succumb to the peer pressure of the other Defendant who was clearly the leader. The Pre-Sentence Reports

[7]Pre-Sentence Reports are intended to inform and assist the sentencing process. It provides the court with relevant information about the background, personal circumstances and attitude of a convicted person towards the offence, his character, physical and mental condition. I have relied on the reports to advise me on the suitability of sentence and rehabilitation measures, I may wish to apply to the sentence. Jumanie Lionel

[8]Ms Alina Auguste helpfully prepared the pre-sentence report in respect of Jumanie Lionel This is what her enquiry revealed. The Defendant is a first time offender. He is 17 years old and is categorised as a “troubled young man”. He was born of a single teen mother and an alcoholic father. The Defendant has lived largely in an unstable home environment. He is the third child of both parents. He moved frequently during his childhood and early teen years to live with different family members but spent the longest period of time with his paternal grandmother in the community of Babonneau. Before this, he lived briefly with his parents but due to their conflictive relationship and lack of finance, he was sent to live with his paternal grandmother from the age of two (2). The Defendant reported that he was frustrated with his living situation and would quarrel with his grandmother and older relatives. The situation escalated and his relatives asked him to leave the house. He went through a period of homelessness, sleeping for short periods of time, at the houses of different persons and also became a ward of the Boys Training Centre. He expressed feelings of rejection stating that he has never been cared for.

[9]In an interview with a Counsellor at the Boys Training Centre, it was confirmed that this Defendant had a history of issues that included homelessness and having to sleep on the streets and beach areas. The Counsellor stated that this situation made the Defendant vulnerable to being sexually and emotionally abused from an early age and indicated that during the period at the Boys Training Centre he struggled with the issue of pornography and would sometimes leave the dorm room at nights in search of pornographic material.

[10]In an interview with the Defendant’s mother, Leah Lionel, she indicated that she never had a relationship with the Defendant’s father and at the time of her pregnancy was involved in a relationship with another man in the community. Ms Lionel stated that the Defendant was a product of her only sexual encounter with the Defendant’s father with whom she had a very conflictive relationship. She stated that she was unable to financially care and provide for the Defendant because she had him in her mid-teen years and did not have family support. The Defendant lived with her for one (1) month in his early teens, but ran away after stealing money from her. She stated that she has not seen her son in a long time and is unable to do so because she has a one month old baby and is unable to visit him due to financial hardship. She is saddened that her son’s life has evolved in such a negative manner. She stated that she grew up being a victim of sexual abuse, was also homeless at some point in her life and did not want the Defendant to have a similar experience. She indicated that because of her personal circumstances, she is unable to assist the Defendant with housing at all.

[11]The Defendant’s father, stated that he struggles with the use of alcohol but is willing to assist his son in any possible manner, although he states that he does not have the resources to care for him. Mr. John stated that his son lived with him on some occasions but it did not work out as the Defendant would not cooperate with any form of household rules. Other sentiments from family members are that the Defendant can be defiant, steals frequently, would listen attentively when he was cautioned about his behaviour and would agree to change, but would not follow through with his actions. Members of the community did not perceive the Defendant as a threat to them, but as a young person in need of serious intervention and attention.

[12]The Defendant himself told the probation officer that he does not have a close relationship with his mother or his father, whom he said have not visited him during his period on remand. The Defendant shared a close relationship with a mentor, Ms. Theresa Alexander who had been to visit him at the facility. This was confirmed by Ms. Alexander who stated that she was a mentor to the Defendant but was horrified when she learnt of his actions. She described him as a smart and pleasant young man who is detached emotionally.

[13]The Defendant does not have a fixed place of abode and has nowhere to go after he leaves the Bordelais Correctional Facility. He stated that despite staying with several relatives, he always felt like a burden to them. He stated that he often roamed the streets of the city and would sleep at friends‟ homes. The Defendant confirmed that he smokes marijuana regularly and started smoking tobacco from age 6 years. The Defendant dropped out of Secondary school in the Fourth Form. He expresses a desire to continue his education.

[14]In her risk assessment, the probation officer’s conclusion was that there were a number of risk factors present that explained the Defendant’s social behaviour. These are; a chaotic childhood; sexual abuse; unemployment; use of cannabis; dropping out of school; and association with unsavoury characters. Kareem Francis

[16]This Defendant resided with his maternal grandmother between the ages of two (2) and sixteen (16) years, but his mother communicated with him and/or visited him daily. His mother described her son as a well-behaved son who enjoys listening to music, surfing the internet and playing computer games. She said that over a five-year period, in his late teenage years he socialised with questionable characters and she believed that as a result of her constant prodding, he began to change. She described the Defendant as kind, loving and helpful. She noted that he is especially helpful at home, as he performs household chores without being asked. His mother stated that she was surprised by the Defendant’s actions in this case, given that she raised the Defendant to know the difference between right and wrong. She especially taught him to respect women. She expressed disappointment in the Defendant, given her personal life experiences and struggles, which she had disclosed to him. The Defendant shares a very good relationship with his mother and siblings. He spends his spare time at home watching television and playing music.

[15]The probation report in relation to this Defendant was helpfully prepared by Ms. Khafka Alexander. This Defendant is the first of his mother’s three sons. His mother Ms Ava Francis informed that the Defendant was born out of the then casual relationship between her and the Defendant’s father. Ms. Francis said that the Defendant’s father assisted with his financial needs, but offered no emotional support.

[17]The Defendant feels that he had a „rough‟ childhood at school as he was disrespected and called derogatory names because he had a cleft palate. He explained that his father financially supported him but not emotionally. His father is a Police Officer, and when he began socializing with bad company, his father cautioned him, but he did not take heed and their relationship became strained. He said when he eventually stopped socializing with the bad influences, the relationship with his father improved somewhat, but it is currently far from where he desires it to be. The Defendant craves a better relationship with his father, but believes that the effort is lacking on both their parts. His father did not make himself available for interview with the Probation Officer.

[18]Investigations in the community reveal that the Defendant is not known to be a trouble maker. Enquiries made by the Probation officer also revealed that, he assists an elderly lady with her household chores from time to time which include, accompanying her to the doctor and preparing meals for her. Family, friends and relatives were surprised and disappointed with the Defendant in this matter. They explained that he is a quiet and soft-spoken individual who often displays tremendous helpfulness. Another individual informed that he often fixes electronic gadgets, while most persons added that he spends most of his time indoors. By his own admission, the Defendant admitted to having anger management issues. He admitted that he has been advised by relatives and neighbours alike that he needs to address his anger issues. He expressed a desire to receive anger management counselling.

[19]The Defendant attended the St. Aloysius R. C. Boys‟ Primary School where he was an avid Calypsonian who won at least one competition. He then attended the Castries Comprehensive Secondary School. He was suspended often, and although he recalled writing some CXC examinations, he could not recall the number of subjects he passed. His mother indicated that he was often suspended for being the „class-clown‟ and for his negative responses when provoked by other students. The Defendant is literate, and desires to further his studies in electrical installation.

[20]The Defendant worked at a clothing store on weekends and during the summer school vacation while he attended the Castries Comprehensive Secondary School. He worked as a Labourer in the Construction Industry, as well as an assistant to a mechanic. He was last employed as a Chef at Brooklyn Pizza. The Manager of the establishment, confirmed that the Defendant worked at Brooklyn Pizza in the capacity of a Chef from September 2015, until the time of his arrest. He is described as hard-working, reliable and a very helpful worker who often went beyond the call of duty to accomplish tasks.

[21]This Defendant’s mother expressed deep anger at Jumanie Lionel, the other Defendant; for she believed that he influenced her son into committing the crime. She stated that she had attempted to do a good thing for Jumanie Lionel by inviting him to live at her home with her boys just one week prior to the event. He had been on the street with nowhere to live and she had offered him a home. In the short period that he lived with them he influenced her son who had never been in trouble with the law before to commit this heinous crime. The Victim Impact Statements

[24]The OCD manifests by her having to check every single window in her house before she sleeps, otherwise she remains up all night. Slight noises heard outside make her paranoid. She went back to school two weeks after the incident, and faced a lot of unsettling reactions from students at school; those who blamed her for it happening; and those who were unsure how to act around her.

[22]Both of the Virtual Complainants submitted statements to the probation services. The following summarises their statements:─ ( V.C 1)

[23]She stated that the effect of the sexual assault on her, had short term and continues to have long term impact. It was a total upheaval of her life as she knew it. She has been regularly seeing a clinical psychologist and has been diagnosed with various issues arising from the event including: Anxiety, Post-Traumatic Stress Disorder (PTSD), Obsessive Compulsive Disorder (OCD), and Insomnia. She is on prescribed medication to help with the insomnia. She was diagnosed with PTSD, as she has constant flashbacks and panic attacks which trigger emotional breakdowns. It also fostered a fear of going out at night, especially to the north of the island where the incident took place. She induces sleep often, with sleeping pills, in an effort to control her thoughts and flashbacks.

[25]Her motivation for school fluctuates. She is not always keen to socialize with students, based on how she feels emotionally and mentally. She has significant issues trusting any person of the opposite sex after the incident. She does not always feel like being around members of her family or members of the wider community. She gets angry at persons who show her pity. She started self-harming, although she admits that she no longer does it, because it disappointed her family. She continues to have thoughts of wanting to die. She stated that it is emotionally draining to pretend that everything is fine when she is in places, such as school, but she does it, as she does not want to be questioned by other students.

[26]She stated that she has made new friends who she assumes don’t know what had happened to her but who make jokes relating to sexual assault, which is unsettling. (V.C 2)

[27]V.C 2 stated that being raped was the worst thing that had ever happened to her. The Defendants‟ she says, were strangers, they were unpleasant and they were unforgettable. She said she was violated in the comfort of her own home, and she was made me feel helpless, useless and disgusting. She said she was not only robbed of her personal belongings but of her dignity. For weeks after the incident she felt uncomfortable in crowds, especially amongst males. Standing in line at a crowded supermarket became unbearable for her. She was not able to run errands for her mother, without feeling like everybody knew how she had been violated.

[28]Psychologically her life has changed forever. Her emotions are no longer intact. She is triggered by the tiniest things that make her burst into tears. She has had to resort to counselling to help her cope with her erratic emotions. She suffers with anxiety attacks and has fears of walking outside alone, the fear of black males walking in groups terrifies her. She is trying to move on and to live her life but there are times when certain smells and words trigger her, and her mind goes right back to the night that changed her life forever. Her heart continues to be filled with hurt and hatred. The Law and Principles on Sentencing

[29]The offences of Rape and Burglary are governed under sections 123 and 207 respectively of the Criminal Code, Cap 3.01 of the Revised Laws of Saint Lucia. The Code prescribes a maximum penalty of life imprisonment for a person convicted of Rape and 20 years for a person convicted of Burglary.

[30]Judicial discretion is preserved under Section 1097 of the Criminal Code which acknowledges the ability of the court to sentence an offender to a term not exceeding the statutory maximum provided that the sentence is commensurate with the seriousness of the offence or the combination of offences and where the offence is of a violent or sexual nature, as is in the opinion of the court is necessary to protect the public from serious harm from the offender. Section 1102 of the Criminal Code legislates General Judicial Guidelines that provide inter alia that the rehabilitation of the offender is one of the aims of sentencing and that the gravity of a punishment must be commensurate with the gravity of the offence;

[31]I am also guided by the principles of sentencing accepted by our court in Desmond Baptiste v The Queen Crim App No. 8 of 2003. These are retribution, deterrence, prevention and rehabilitation. Those principles are to be applied to the facts of every case to see which of them has the greatest importance in the case.

[32]Rape is a morally and physically reprehensible crime in any society, it is an assault on the body, mind and privacy of the victim. It defiles the soul of a female and offends her esteem and her dignity for which there should be no tolerance in a civilized society. It continues nevertheless as a prevalent crime in our society. The Parliament of Saint Lucia by the imposition of the severe penalty of life, has registered the society’s intolerance of perpetrators who abuse women in this primitive, abhorrent way. The lasting impact of this offence on the Virtual Complainants is palpable. They are struggling to regain composure of their lives when prior to they had been confident, self-assured young ladies on an academic path to success. The Court in imposing a sentence must be mindful of the impact on the victims and society intolerance of these offences.

[33]As regards rehabilitation, both Defendants are young men who can benefit from an intense rehabilitation program. The Defendant Jumanie Lionel has no fixed place of abode. He had been made a ward of the state from a young age and lived at the Boys Training Centre (BTC) intermittently throughout his life until age 17. He however did not do his CSEC examinations as he dropped out in form four. This Defendant can therefore benefit from rehabilitation. Kareem Francis too, can benefit from the Anger Management counselling, continuing his education, and from building his self-esteem. These were the issues caught by the Pre-sentence report that contributed to the Defendants incursion into crime.

[34]The Defendants are from different social backgrounds. Kareem Francis had the support of his mother and siblings, and though he longed for a closer relationship with his father, there was the presence of a father who exercised discipline sometimes and catered for his financial needs. The case of Jumanie Lionel on the other hand is particularly challenging. This Defendant is a product of years of neglect; by his parents and family who abdicated their legal and moral responsibility to a child and neglect by society who has failed in its implementation of adequate and appropriate safety and remedial measures, that ought to be triggered where parents fail in their responsibilities.

[35]Having assessed the circumstances of this case, it is my view that retribution, general deterrence and rehabilitation should predominate. Starting point

[39]I have taken the following as the applicable aggravating and mitigating factors:- Aggravating factors i. The victims have suffered physically and psychologically from the sexual assault; ii. Violence was used to commit the offence, the V.C.’s were threatened with weapons; iii. The V.C.’s were very young. There were both 16 years old. iv. The prevalence of both the offences of Burglary and of Rape Mitigating factors i. The Defendants early guilty plea. They confessed at the outset of the investigation; ii. The Defendants sincere remorse and contrition; iii. The Defendants are first time offender and are relatively young.

[36]Our Court of Appeal in R v Winston Joseph and Others Saint Lucia Criminal Appeal Nos. 4, 8 & 7 of 2000 has issued sentencing guidelines in matters of sexual offences so that by an application of the guideline, the court can achieve a degree of consistency which commends itself as rational and just. These are appreciated as guidelines. Ultimately the sentence imposed must involve a comprehensive analysis of the peculiar facts and circumstances, the evaluation of the aggravating and mitigating factors and the pre-sentence reports.

[41]It is also overwhelming the increasing frequency with which such offences traverse the Court Regard is had to the Criminal Division report for 2016 for St. Lucia, which indicates that: the most frequent offences filed for the year 2016 were Robbery/theft/burglary, seconded by Sexual Offences. In fact in 2016 alone there were 46 cases of sexual offences filed in the High Court. in DPP v Jahmari Lake and Leon Jederon SKBHCR2012/0027, a case with striking similarity to this one, Thomas J acknowledging the prevalence of these types of offences opined that the protection of society must be an overriding consideration. the aggravating factors clearly outweigh the mitigating factors and this must be reflected in the sentence imposed. I have therefore discounted the starting point largely for the early guilty plea. the Defendants are each sentenced to 7 years imprisonment.

[38]The circumstances of this offence warrant only a custodial sentence. This case falls squarely into sub category II identified by Winston Joseph. I therefore take as a starting point a sentence of 10 years.

[40]The Defendants early plea have spared the victims the trauma of having to relive and testify of this incident. They are first time offenders and there is nothing to suggest a predilection for this type of behaviour. I have also considered the youth of the Defendants in particular Jumanie Lionel who was 17 at the time of the incident. These are all relevant considerations, nevertheless it is inescapable the Defendants intentions at criminal behaviour on the night in question. The Defendants in their own evidence reveal that they lay in wait for the right opportunity to enter the apartment of the young females who were chosen at random. Having relieved them of the money and other possessions the Defendants chose to further humiliate them by raping them. The presentence report reveals that the Virtual Complainants suffered and continue to suffer psychological harm. Both have received counselling and continue in therapy for various psychological disorders. Both of the Virtual Complainants have stated that they have been impaired for life.

[42]For the offence of Burglary a benchmark of eight years has been fixed in St.Lucia. I have given consideration to the circumstances under which the offence was committed, including that the virtual complainants were bound and were threatened with a firearm and a knife as aggravating factors. I have considered the Defendants youth, the fact that they had no previous convictions, and their very early intimation of guilt for which they are credited with the full 1/3 discount. The Defendants are each sentenced to four years on the offence of Burglary. Concurrent or Consecutive Sentences

[47]Having considered all of the above, I order that the second count of rape in respect of each Defendant be served partially cumulatively, such that the first four years of the second count is to run concurrently and the remaining three years is to be served consecutively.

[43]When sentencing an offender for more than one offence, the court must ensure that the sentence handed down is just and appropriate given the overall criminality of the offending behaviour. Generally, sentences for offences that occur at separate occasions will be served consecutively, while offences that arise out of the same transaction will typically be concurrent. In this case, although arising out of the same circumstances, each Defendant, rape two persons and each V.C. has individually suffered the impact of the rape. In R v Evans [2016] EWCA Crim 31 – JCL 80 (224) the Court of Appeal of England and Wales offered the following guidance: “ “there exists a general principle that consecutive terms of imprisonment should not generally be imposed in respect of offences which arise out of a single incident (see for example R v Noble [2002] EWCA Crim 1713). However, according to Lord Judge CJ in Attorney General’s Reference No. 57 of 2009 [2009] EWCA Crim 2555 (at para 28), 'examples abound of occasions where consecutive sentences are justifiably imposed … This tends to occur where distinct offences are committed in circumstances where the offences, although distinct, can properly be said to increase the relevant criminality.' There is therefore some judicial support both for the judge’s decision to impose consecutive sentences in this case, and the Court of Appeal’s reversal of this in favour of concurrent sentences…..”

[44]In that case the appellant had committed burglary with intent to steal and used violence against the occupier of the premises who had interrupted his offence. The Court of Appeal held that these offences did not form part of the same transaction and so the sentences could rightly be ordered to run consecutively.

[45]In R V H and Others [2011] EWCA Crim 2753 LORD Judge CJ, in the dicta on R v P said this:─ “The principles are long established and well recognised. Consecutive sentences should not normally be imposed when the individual counts arise from what in reality is the same incident. Nevertheless, the fact that offences may be committed within a short, even a very short span of time of each other is not necessarily conclusive. A close examination of the facts may reveal that distinct offences occurred, each independent of the other, and each calling for distinct punishment to reflect the offender’s criminality where, in a case like this, each of the two offences represented the most serious harm and high culpability”

[46]Having assessed the circumstances of this case, I am of the firm conclusion that the correct approach to these events is that the Defendants and their victim were involved in two distinct and separate incidents, albeit consecutive, with one following immediately after the other. Each V.C was the victim of two distinct sexual violations, and as such consecutive penalties are appropriate.

[48]The sentence in relation to the offence of burglary is to be served concurrently. As such the Defendants are sentenced to a total of ten years with hard labour. They are to be credited with time spent on remand.

[49]The Defendants are also sentenced as follows: (i) Both Defendants are to be enrolled in the education programme at the Bordelais Correctional Facility. (ii) The Defendants are to be enrolled in any character building programs at the Facility that includes counselling and/or therapy sessions. (iii) The Defendants are both to attend drug and alcohol rehabilitation. (iv) The Defendants are to attend anger management rehabilitation offered at the Facility. V. Georgis Taylor-Alexander High Court Judge (Ag.) BY THE COURT REGISTRAR

1.JUMANIE LIONEL

2.KAREEM FRANCIS Defendants Appearances: Ms. Isa Cyril for the Crown Mr. Al Elliot for the Second Defendant Kareem Francis The First Defendant Jumanie Lionel in person. ____________________ 2017: April 24. ____________________ DECISION ON SENTENCING Sentence- Double Rape committed in course of Burglary – Sentencing Guidelines -Aggravating and Mitigating Factors. Appropriate starting point in cases of rape committed in course of burglary. – Charges arising out of single episode – whether sentences should be concurrent sentences or consecutive sentences

[2][37] In Winston Joseph the Court opined that: (i) for rape committed on an adult without aggravating or mitigating features a figure of 8 years should be taken as the starting point in a contested case with a minimum of 3 years on a plea of guilty. (ii) Where the rape is committed by two or more men acting together, or by a man who has broken into or otherwise gained access to a place where the victim is living or by a person who abducts the victim and holds her captive the starting point should be 10 years. (iii) At the top of the scale is a Defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represents a more than ordinary danger and a sentence of 15 years to life or more may be appropriate. (iv) Where a Defendant, were he to remain at large, would represent a danger to women for an indefinite time a sentence of 20 years to life is appropriate.

[1]See ECSC Practice Direction No. 1 of 2005.

[2]See also the dicta of Davidson Baptiste JA in Roger Naitram v Regina 2006/005,006,008 who cautioned against a mechanist approach that can result in sentences that are unjust.