Linton Pompey v The Director of Public Prosecutions
| Jurisdiction | Caribbean States |
| Judge | Mr Justice Saunders, PCCJ,MME Justice Rajnauth-Lee, JCCJ,Mr Justice Jamadar, JCCJ,Wit,Anderson, JCCJ |
| Judgment Date | 14 May 2020 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. GYCR2019/001 |
| Date | 14 May 2020 |
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
CCJ Appeal No. GYCR2019/001
GY Criminal Appeal No. 29 of 2015
Sexual Offences Act 2010 — rape of a child under sixteen years — sexual assault of a child under sixteen years — consecutive and concurrent sentences — totality principle — sentencing guidelines
Linton Pompey was convicted of three sexual offences perpetrated against a child. He appealed to the CCJ against the sentences imposed on him. The trial judge had ordered him to serve prison sentences of 5, 15 and 17 years respectively and that the sentences should run consecutively. All seven judges of the CCJ unanimously agreed that the cumulative 37-year sentence given to Pompey was excessive. The CCJ judges were divided, however, on how far to reduce the time Pompey should actually serve. While two judges would have reduced Pompey's overall sentence to 9 years, the other members of the Bench agreed not to interfere with the trial judge's imposition of 17 years for his second rape of the girl and to have the other two sentences run concurrently with the 17 year sentence.
On May 29, 2013, Pompey was charged under the provisions of the Sexual Offences Act. The child was 14 years old at the time of each offence. She is the niece of Pompey's common law spouse. The first offence was for fondling her breasts. The other two offences were for rape. The offences occurred over a course of approximately eight months. Each incident occurred at the home of the child's grandmother where she had gone to play with her cousin. On the occasion of the second rape, Pompey was spotted in the act by a family member.
The judge sentenced Pompey immediately after the verdicts of the jury came in. By way of mitigation, his counsel indicated that he was 50 years old, a father of 12 children and that he had never come to the attention of the police prior to these incidents.
The Trial Judge passed sentences of 5 years for the breast fondling charge, and 15 years and 17 years respectively for the first and second rape charges. Pompey appealed to the Court of Appeal both his conviction and the severity of his sentences. His counsel complained that no reasons were given for the imposition of consecutive sentences.
The Court of Appeal dismissed the appeal, against both the conviction and the sentences. That court justified the judge's decision to have the sentences run consecutively on the basis that there were three separate incidents. The court noted that sexual offences, and particularly rape of child family members, were prevalent in Guyana. It was important, the court warned, to send a strong message that such offences would not be tolerated. Further, Pompey's conduct, it was said, amounted to on-going sexual interference with a child in relation to whom he was in a position of trust.
The CCJ gave Pompey permission to appeal only his claim that the sentences were excessive. Four separate Opinions were handed down by the CCJ's judges. The majority Opinion was delivered by the President of the Court, writing on behalf of himself and Justices Rajnauth-Lee, Barrow, Burgess and Jamadar. Justice Rajnauth-Lee and Justice Jamadar issued separate concurring Opinions. Justices Wit and Anderson delivered a joint dissenting Opinion.
In his Opinion, the President of the Court considered first the issue of concurrent and consecutive sentences in the context of the totality principle. That principle, it was said, may be thought of in much the same fashion as the principle of proportionality. A sentence must be proportionate. The totality principle required that when a judge sentences an offender for more than a single offence, the judge must give a sentence that reflects all the offending behaviour that is before the court. But this is subject to the notion that, ultimately, the total or overall sentence must be neither too harsh nor too lenient.
Ordinarily, it would have been open to the trial judge to order Pompey's sentences to be served consecutively because consecutive sentences are normally appropriate where offences arise out of unrelated facts or incidents, or when offences are of the same or similar kind and are committed against the same person at different dates. But if the judge chose to give consecutive sentences, care needed to be taken to ensure that due regard was paid to the totality principle. The Court accepted that there was no such regard paid in this case.
Two broad approaches were legitimately open to the trial judge. Under the first approach, the judge could have moderated the individual sentences (so as to avoid breaching the totality principle) and then have the moderated sentences run consecutively. Alternatively, the judge could have imposed a sentence for the second rape, the most serious offence, that fairly reflected the offender's overall criminality, and have him serve that sentence concurrently with the sentences given for the other two offences.
The majority conceded that 17 years for the second rape was a stiff sentence, but they noted that this sentence fell well within the range courts in the common law Caribbean will impose for like offences. The young survivor was repeatedly raped on premises and in an environment where she should have expected to be safest from sexual predators. The rapist was, in effect, her uncle, a middle-aged man more than three times her age. But for the fact that, on the third occasion, someone else saw him, the molestation of the child may have continued indefinitely because the child was too afraid and ashamed to say anything after each of the incidents. Finally, the Court considered the stark sociological realities. Sexual offences against minors are a tremendous cause for concern, regrettably not only in Guyana. But the position in Guyana is grim as was borne out by some shocking statistics that were presented to the Court by the Director of Public Prosecutions.
Although some judges might have given a different sentence if they had initially sentenced Pompey for the second rape, the majority did not consider that a sentence of 17 years imprisonment for that offence was either so lenient or so harsh that it warranted being set aside by an appellate court. The Court found, however, that Pompey's sentences for the other two offences should be served concurrently with the sentence imposed for his second rape of the child.
The CCJ president concluded by suggesting that the practice of passing sentence immediately after a verdict comes in should generally be eschewed, especially in cases where there is a likelihood that a lengthy prison term may be imposed. In such cases, the judge should hold a separate sentencing hearing at which mitigating and aggravating factors, including mental health or psychological assessments, can better be advanced and considered. Where it became necessary to sentence someone for multiple serious offences, before pronouncing sentence, the judge should ensure that the sentence is structured in a manner that yields a result that is consistent with the totality principle and the public must be given the reasons for the sentence imposed. The Court also expressed the view that Guyana's trial judges would be better served if they followed appropriate guidelines that suggest various sentencing ranges for the most prevalent crimes.
In a brief concurring Opinion, Justice Rajnauth-Lee drew attention to the alarming prevalence of sexual crimes in Guyana and the spike in reported cases of domestic violence experienced worldwide, not only at the present time, but over several years. Justice Rajnauth-Lee noted that, in a direct response, some governments throughout the Caribbean have taken on board the need to address this worrying trend. This has taken the form of specialized police Units comprised of officers trained in the investigation of sexual offences particularly against children. International organizations have also been at the forefront of addressing gender-based violence and child sexual abuse and in 2015, the Judicial Reform and Institutional Strengthening Project (“JURIST”), developed model guidelines for managing sexual offence cases. The Model Guidelines adopt a rights-based approach and explore best, good and promising practices for improving investigatory processes, ensuring adequate safeguards for the protection and care of complainants and vulnerable witnesses, while securing at all times a fair hearing for defendants in sexual offence cases. Justice Rajnauth-Lee noted that Guyana's Sexual Offences Act 1 established a National Task Force for the Prevention of Sexual Violence and gave the statutory duty to develop
and implement a national plan for the prevention of sexual violence. The judge endorsed the recommendation that the trial judges of Guyana would benefit greatly from sentencing guidelines crafted, agreed upon and published by the Judiciary of GuyanaJustice Jamadar introduced his concurring Opinion by emphasising how vulnerable and precious children are. He stated that sexual offences against children, of which rape may be one of the most vicious, is anathema to the fabric of society.
As to sentencing generally, Justice Jamadar' view was that an appellate courts will not substitute its own opinions as to what constitutes appropriate and fit sentences unless there are either errors in principle that have a significant impact on the sentences, or the sentences are in and of themselves manifestly excessive or otherwise demonstrably unfit. 2 Due deference must therefore be paid to trial judges in the execution of their sentencing powers. The judge's opinion was that sentencing is quintessentially contextual, geographic, cultural, empirical, and pragmatic. Caribbean courts should therefore be wary about importing sentencing...
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