From the Courts
June 10, 2022
HIV positive man apologizes after raping 9-year-old girl

AN HIV POSITIVE man who had sexual intercourse with, and twice indecently assaulted a nine year old girl will be incarcerated for 23 years.

Cassel Lavia, now 46 years old said on Friday, June 3, “I’m so sorry about it, and giving an apology to everything.”

According to the facts as related by Justice Brian Cottle at the High Court, the acts for which the former landscaper and gardener is seeking to apologize took place across a two day period.

On March 7, 2018, Lavia was charged with the responsibility of taking care of the nine year old child and a younger sister. The child’s mother was at the hospital seeking medical attention.

On the date in question, the nine-year-old was on her way to use the bathroom when Lavia approached her from behind dressed only in his underwear. He grabbed her, placed himself against her and began gyrating. This continued until there was a knock at the door.

“The following day he went further,” the judge stated.

Lavia entered the bedroom while the young girl was taking off her primary school uniform.

The child was made to lie down, her underwear removed and she was then raped.

This time the then 42-year-old was stopped in his behaviour due to an interruption by the girl’s younger sister.

However, that night when she was asleep the child once again became a target. Lavia kissed her on the lips and sucked her breasts. Pretending to be sleeping, the girl turned away from her violator but could still feel something rigid behind her.

In the morning, Lavia told her not to tell anyone of his behaviour or this would cause trouble.

However, the child did not listen to him and reported it to the first adult she saw, who then made sure that her mother knew.

Further, the nine-year-old reported it to her teacher and school principal.

The police were called and they arrested Lavia.

There was an interview with the investigators and, “in that interview the prisoner said that he did not penetrate the virtual complainant, he merely rubbed his penis on the upper thighs near her vagina. He explained that he knew that he was unwell and he did not wish to infect the child with his illness,” the judge related.

However, Cottle said that the child was medically examined and the doctor recorded evidence “of the internal trauma of the vagina.”

The hymen was absent and this was attributed to a poking or prodding at the vaginal orifice.

There was a full trial on the matter at the High Court in April of this year, during which the prosecution was represented by crown counsel, Allana Cumberbatch.The jury unanimously convicted Lavia on all counts.

In sentencing the prisoner, the judge indicated that he must have in mind the aims of criminal punishment. These are retribution, deterrence, prevention and rehabilitation.

Cottle used sentencing guidelines of the Eastern

Caribbean Supreme Court (ECSC) that have been fashioned for judges to use in arriving at a sentence for various offence types.

A starting point was determined by first looking at the consequences.

As the victim was under 10 years the Judge indicated that he is directed by the guidelines to place it in the exceptional category.

“I must now consider the seriousness of the offence by reference to the culpability of the offender,” Cottle explained.

He placed the offence at level A or the highest, considering the breach of trust, the significant age disparity and the steps taken to prevent the child from reporting the crime.

Applying his findings to a grid, the judge found that he should adopt a starting range of between 50 and 80% of the maximum.

For the offence of sexual intercourse with a girl under 13 years, it has been accepted that the maximum, which is imprisonment for life, is 30 years.

Cottle chose to begin at 66% of 30 years.

The next step is to determine the aggravating and mitigating factors of the offence and the offender.

Some of the strong aggravating factors are that another younger child was present, and that the prisoner was confirmed by someone close him as being a carrier of HIV(human immunodeficiency virus) (which can lead to death).

On the other hand, Lavia was not known to have previous convictions and the offender did not inflict any gratuitous violence on the child.

On the scales, the aggravating factors outweighed the mitigating, carrying the sentence upwards to 23 years.

There was no discount for a guilty plea therefore the only subtraction made was the two months that Lavia had already spent behind bars.

Therefore, from that day, Lavia had 22 years and 10 months remaining to spend for the rape he committed.

On the counts of indecent assault, the court arrived at sentences of two years and six months each, to run concurrently to the sentence for rape.The maximum penalty for indecent assault of a minor under 15 is five years imprisonment.