Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0029/2012 THE QUEEN V BRYAN CASHAN POWELL Appearances: Mrs. Tanya Lobban-Jackson for the Crown Mr. John Furniss for the Defendant Before: The Hon. Mr. Justice Charles Quin Sentencing Submissions Heard: 22nd August 2012 SENTENCE RULING
On the 6th July 2012 the Defendant pleaded guilty to Defilement contrary to s.134(1)(b) of the Penal Code Law (2010 Revision).
The particulars of the offence are that, on a date between the 1st and the 31st March 2010, at North Side, Grand Cayman the Defendant had unlawful carnal knowledge of Aaliyah Johnson, a girl under the age of sixteen years.
At the time of the offence the victim was 14 years of age and the Defendant was 18 years of age.
On Tuesday the 13th July 2010 mother of the victim, who is the Complainant, reported that she received information that her 14 year old daughter, Aaliyah Johnson, was seen exiting the Defendant’s vehicle. Coupled with this, the Complainant reported that over the two weeks prior to the 13th July 2010, she had observed her daughter vomiting and she was of the opinion that her daughter could be pregnant. THE FACTS
On the 15th July 2010 the victim told the police that she first met the Defendant when she started attending George Hicks High School, in “Year 8”. She stated that, at the time, the Defendant was attending John Gray High School, however, because they had to take the same school bus, they would see each other and say hello.
The victim said that it was not until November 2008, some four months after they first met, that the Defendant first asked her to go out with him and she agreed. The victim stated that in November 2008 she was 13 years old and, from that time on, she communicated with the Defendant via phone, text, and email.
The victim told the police that sometime in March 2010 she received a text message from the Defendant in which he asked if he could see her, and her response to him was yes. The victim said the Defendant asked her what she wanted to do and she said she told the Defendant she wanted to “talk.” The victim stated that the Defendant then asked her if she wanted to have sex and she said that her response to the Defendant was that she was not too sure about having sex.
The victim said that around noon on that day the Defendant came to North Side to see her, but he parked at a location some distance from her home, and she had to ride her bicycle to where he was parked.
The victim said the Defendant was in a vehicle which was brown in colour, and she went to the driver’s door of the vehicle and she asked the Defendant if he wanted to have sex and he said: “Yes.” The victim stated that she then rode her bicycle a little further to a secluded location into the Hut Road, and the Defendant drove beside her and then parked his vehicle. The victim stated that she then got off her bicycle and sat in the Defendant’s vehicle.
The victim said that when she sat in the vehicle the Defendant asked her if she was ready and she told him, “Yes.”
The victim stated that the Defendant next took off his pants and his boxers. The victim said that was when she asked the Defendant if they were “Going to do it protected,” and the victim said the Defendant’s reply was “No.”
The victim said she then took off her pants and her underwear and asked the Defendant, “What will happen if I get pregnant?” to which the Defendant replied, “Nothing, I will be there.”
The victim said she then climbed over to the Defendant, in the driver’s seat, and she inserted his penis into her vagina.
Sometime in July the victim was found to be pregnant and, it was as a result of this discovery that the victim’s mother, the Complainant, reported the matter to the police.
On the 27th July 2010 the police received information from the Complainant that she was at the George Town Hospital with her daughter, the victim. The police attended the hospital and they were told that the victim had had a miscarriage. ANALYSIS
The Court has been greatly assisted by a Social Inquiry Report (SIR) prepared by Probation Officer, Tricia Smith, on the 16th August 2012, together with an Assessment Report from the Department of Counselling Services dated the 7th August 2012.
The SIR reveals that the Defendant’s early childhood years were spent in a single-parent family with his mother – as his father did not honour his paternal obligations.
The Defendant was exposed to love, support and socially acceptable behaviour in his early childhood years by his mother. 18. When the Defendant was five years old the Defendant’s mother met and established a relationship with another man, whom she later married.
The Defendant’s stepfather made it clear that he did not want the Defendant in their home and the Defendant was never accepted as part of the family from that time on.
The SIR reveals that the Defendant has suffered from feelings of neglect and abandonment for most of his life. The Defendant has consistently felt that he was abandoned by his mother, who had to choose between her new husband and him and chose her new husband. In addition, the Defendant carries with him the understanding that he was totally rejected by both his paternal father as well as his stepfather. 19. The SIR reveals that the Defendant has demonstrated clear tendencies towards socially unacceptable behaviour throughout his teenage years which the SIR reveals have been the result of parental neglect. In addition, the SIR reveals that the Defendant has not been successful academically. 20. Fortunately, the Defendant’s maternal grandmother, Mrs. Dawn Powell, endeavoured to give the Defendant love and support during his teenage years.
In relation to the offence of Defilement, there is evidence to support the Defendant’s contention that he did not realise that the victim was 14 years of age. However, it is fair to say that both the victim and the Defendant were involved in, what has been described as, a friendly, virtuous relationship. The sexual intercourse was consensual in nature and it is clear from the evidence put before the Court that the Defendant was fond of the Complainant.
The Court has been impressed by what is clearly a long period of care and support the Defendant has received from his maternal grandmother.
The Court is dismayed and disappointed by the fact that the Department of Community Rehabilitation’s efforts to contact the Defendant’s mother proved futile, and she made no effort to support the Defendant, especially during this period when he is facing a criminal charge. This is yet another example of a child being left to fend for himself for all his formative years.
Consequently, it is not surprising that, as the SIR reveals, the young Defendant fell in with an older crowd and started to drink alcohol and smoke ganja at an early age.
Over the last three years, the Defendant has been clearly struggling with serious issues such as, the abuse of ganja and alcohol; an out of control temper and “mood swings when he drinks”, based on information from his grandmother; his Attention Deficit Disorder, which was discovered in his childhood and which has impeded his academic progress; his consistent association with a group with whom he drinks, who, the Probation officer suggests, might not be having a positive influence on his life; and, his suspension from High School due to his involvement with the law.
It is therefore clear to the Court that, if it had not been for the love, support and guidance of his maternal grandmother, Mrs. Dawn Powell, the Defendant could be facing even worse problems today. The Law
This Court is guided by the English Court of Appeal decision in R v. Taylor [1977] 1 W.L.R. at page 612 and Lawton LJ’s dicta: “Nowadays, most judges would take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentences of a punitive nature.”
The Court has been impressed by the reports from the Department of Rehabilitation which reveal that the Defendant is making a serious attempt to “cease the [ganja] habit as he has found it to be quite costly” and that the Defendant has agreed with his counselor to enroll in the Relapse Prevention Group offered by The Counselling Centre as part of his treatment programme.
In addition, the Court is impressed by the Defendant’s determination to seek employment. The Defendant is now employed in the construction industry and does metal roofing.
The Defendant’s grandmother, who was present for these mitigation proceedings on the 22nd August 2012 told the Court that, from a weekly wage of CI$450.00 from his temporary job, the Defendant gives her CI$200.00 weekly towards household expenses. The Court is impressed by the fact that the Defendant is returning his grandmother’s love and support in contributing to her household expenses. CONCLUSION
We have before the Court a young man who, at 18 years of age, had a friendship with a girl who was under 16 years of age. I am satisfied that this act was committed by young people, similar in age, and was consensual. The facts of this case are very similar to the case of R v. Woods 2008 CILR Note 13 in which the English Court of Appeal dicta in R v. Taylor was applied: “There are well established guidelines in cases of this nature. The offence covered a wide spectrum of guilt, and there was a difference between cases in which two young people of similar age engaged in a relationship which resulted in their having sexual intercourse and those in which older men in supervisory positions set out deliberately to seduce young girls in their care.”
The Court takes into account that the Defendant has pleaded guilty and has no previous convictions.
The challenges this young Defendant now faces to correct the serious problems in his life are many and, in relation to this offence – only one of these problems he faces – this Court deems that community rehabilitation will be able to make a significant and positive impact in the days and years ahead for this Defendant.
Accordingly, as in R v. Woods, this Court imposes a sentence of a probation order, pursuant to the Alternative Sentencing Law, for a period of two (2) years. Furthermore the Court imposes the conditions recommended by the Probation Officer, that is the Defendant is: a) To attend and actively participate in the Anger Management Group at the Department of Community Rehabilitation; b) To continue with the Relapse Prevention Programme offered by the Counselling Centre; c) To submit random drug testing; d) Not to enter any liquor licenced premises; e) To enrol in school or make clear efforts to secure permanent employment within three months. f) To attend any other group/programme deemed necessary by the Probation Officer/Counsellor. Dated this the 4th day of September 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court