The Queen v T.S.

CourtEastern Caribbean Supreme Court
Docket NumberCRIMINAL CASE No. BVIHCR 2020/0033
JudgeFloyd J
Judgment Date24 Feb 2021
JurisdictionCaribbean States
Neutral Citation[2021] ECSC J0224-1
[2021] ECSC J0224-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

CRIMINAL CASE No. BVIHCR 2020/0033

Between:
The Queen
and
T.S.
Appearances:

Mr. Kristian R.G. Johnson, Crown Counsel, Counsel for the Crown

Ms. Carmilita Jamieson, Counsel for the Defendant

Floyd J
1

The Defendant T.S. was indicted on 21 st September 2020, charged with Procuring Poison or a Noxious Thing to be Used with Intent to Procure a Miscarriage, contrary to s. 140 of the Criminal Code of the Virgin Islands. On 3 rd February 2021, the Defendant entered a guilty plea to the charge. Prior to plea, a Goodyear Indication based upon an agreed statement of facts was sought by the parties and was provided by this court on 29 th January, 2021. This judgment reflects that indication and these are the reasons therefore.

2

At the time of plea, this court made an order directing that any information that could identify the complainant should not be published in any document or broadcast or transmitted in any way in respect of these proceedings. That order was made because the complainant was a young person under the age of 18 years at the time of the offence, combined with the facts of the case and the underlying sexual nature of those facts. Given that the relationship between the Defendant and the complainant was one of mother and daughter, the order was extended to include the name of the Defendant, since to identify her, would lead to the identification of the complainant. The circumstances of the case were found to be sufficiently compelling to warrant such an order.

THE FACTS
3

The complainant was born on 3 rd May, 2003 and is the daughter of the Defendant. They resided together, along with other family members. The complainant became involved in an intimate relationship with an older male which resulted in her becoming pregnant in January, 2018. On 19 th February, 2018, the complainant and her male partner attended a medical clinic in order to confirm the pregnancy. However, because of her age, she was refused treatment without a parent being present. She therefore contacted her mother and informed her. This was the first notice the Defendant had of her daughter's pregnancy.

4

The Defendant and her daughter reattended at the medical centre and the pregnancy was confirmed. The complainant was age 14 at the time. The father of the unborn child was age 18. Following discussions with the medical staff, a decision was made by the Defendant and her daughter to terminate the pregnancy. Instructions were therefore provided to them to attend a medical facility in the United States Virgin Islands (USVI), as the procedure could not be performed in this Territory.

5

On 20 th February 2018, the Defendant and her daughter travelled to St. Thomas, USVI, with the intention of terminating the pregnancy. Unfortunately, they were unable to find the correct medical clinic. They did, however, attend at a pharmacy where, after the Defendant consulted with the pharmacist, they obtained a number of pills in order to follow through with the pregnancy termination. The Defendant purchased the pills and upon their return home, she supplied them to her daughter. The complainant consumed all of the pills provided. She became ill. For the next several weeks, the complainant experienced intermittent bleeding, pain and nausea. On 24 th April 2018, the complainant experienced an extreme episode that led to her transportation to hospital. She was medically assessed as having had an incomplete miscarriage and underwent surgery. Following her recovery and discharge, she was referred to outpatient care and the Department of Social Services. Eventually, the police were notified in May, 2018.

6

The Defendant provided an inculpatory statement to police under caution, admitting to her role in these events, including the purchase and supply of the pills to the complainant. She believed her daughter was too young to become a parent. She believed the birth of a child would ruin her daughter's life and her future. She loves her daughter and wants the best for her. She recognized the serious nature of the events and accepted her role in them. She believed that her daughter did not want the baby.

7

The Defendant's daughter was also interviewed by police. She corroborated the events as described by her mother. She voluntarily participated in the plan to terminate the pregnancy and agreed to consume the pills. There was no suggestion of anyone forcing her to take part in this process. It was apparent that, fortunately, she had physically recovered from the incident.

THE LAW
8

Sentencing in criminal cases involves many considerations. In fashioning a sentence appropriate to the facts of the case and the characteristics of the offender, the court must consider the principles set out in cases such as R. v. Sargent, 60 Cr. App. R. 74, referred to with approval by our appellate court in the seminal case of Desmond Baptiste v. The Queen, Saint Vincent and the Grenadines Criminal Appeal No.8 of 2003. In the words of Lawton L.J. in the case of R. v. Sargent, the court endeavours to answer the question, “What ought the proper penalty to be?” Sentencing seeks to promote respect for the law and an orderly society. The sanctions imposed by a sentencing court when fashioning the proper penalty are based upon the classic principles of sentencing. In R. v. Sargent, those principles include:

  • (a) Retribution, the court must reflect society's abhorrence of particular types of crime through punishment of such unlawful conduct.

  • (b) Deterrence, specific to the offender and generally to likely offenders or persons who may be minded to commit similar offences.

  • (c) Prevention, to protect the public from offenders who persist in committing crimes by separating them from society.

  • (d) Rehabilitation, to engage offenders in activities designed to assist them in their reintegration into society.

9

The court in the Desmond Baptiste case confirmed at paragraph 20 that “perhaps the most difficult and controversial area for the sentencer is fitting the punishment to the crime committed.” That is indeed the situation in this case. The court went on to state that the age of the offender and the presence or lack of any criminal record were factors to consider.

10

Sentencing considerations go further. Although denunciation may be required, there is also a need to promote a sense of responsibility in the offender and to acknowledge the harm done. But how best is that done? To answer that, one must return to a weighing of characteristics of the offender with the facts surrounding the offence. The sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender. Has, for example, a guilty plea been entered? All of these considerations play a role in determining a fit sentence.

11

The offence of supplying or procuring any noxious substance intended to be used to procure a miscarriage carries a maximum penalty of imprisonment for a term not exceeding five (5) years.

12

Although this offence is not one enumerated in the Compendium of Sentencing Guidelines for the Eastern Caribbean Supreme Court, assistance is provided therein for crafting sentences generally.

THE POSITION OF THE PARTIES
13

Learned Counsel for the Crown provided helpful submissions on the general sentencing powers of the court, the aims of sentencing and listed what he thought to be several aggravating and mitigating factors in this case. He pointed out the serious nature of the event, exposing the complainant to injury both physical and mental. He pointed to the position of trust the Defendant held with the complainant and argued the actions of the Defendant were not in the complainant's best interest. The latter contention raises the classic debate, both legally and ethically, surrounding teen pregnancy and what is best for the woman. Crown Counsel went on to refer to the young age of the complainant and the planning that was involved in the transaction. Clearly, the Defendant intended her actions and planned them out.

14

Crown Counsel referred the court to the case of Kandy James v. The Queen, BVIHCRAP 2011/0008 where the accused was sentenced to three (3) years for the offence of procurement. However, that case can be distinguished from the case at bar. The Kandy James case included a second conviction for assault and more importantly, as Crown Counsel pointed out, involved the substance being administered to the complainant against her will. That is significantly different to this case.

15

Learned Counsel for the Defendant described the Defendant as a hard-working single mother with four children that she supported and cared for very much, including the complainant. The family has maintained a positive and close-knit relationship. Several supportive letters from family members, former colleagues and friends, attesting to the good character of the Defendant, were provided. A letter from the Defendant apologizing for her actions and the harm caused was also submitted. The court notes the reference to counseling being sought for both the Defendant and the complainant as they move forward with their lives. No doubt that is a positive and helpful path to take. The court also takes note of the fact that the complainant is described as having completed high school and gone on to College. A notable achievement.

16

Defence Counsel referred the court to the provisions of ss. 3 and 4 of the Criminal Justice (Alternative Sentencing) Act, as amended, where discharge provisions and general sentencing principles are referenced. Indeed, factors relevant to sentencing considerations are set out therein and reflect generally held sentencing concepts including:

  • • The circumstances of the offence

  • • Other offences if any

  • • Any course of conduct

  • • Personal circumstances of the victim

  • ...

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