Recent sexual assault case may have justified a departure from sentencing guidelines – PM

The recent case involving a man who sexually abused a four-year-old child by having her perform certain sexual acts on him could have been the type of case that justified departure from the sentencing guidelines of the Eastern Caribbean Supreme Court (ECSC).

Speaking on the WE FM radio station on Sunday January 23, Prime Minister, Dr Ralph Gonsalves said that persons are quite right to be “appalled” that the perpetrator was incarcerated for only four years.

Gonsalves quoted the preamble of the Guidelines, which states “in sentencing for these offences the Chief Justice has issued guidelines and the court must apply the relevant guidelines and sentence accordingly unless to do so would not be in the interest of justice.”

Gonsalves, himself an experienced lawyer explained, “In other words a magistrate or a judge can say ‘Listen to me I’m not going to apply these guidelines because this offence which is before me is so out of the norm, is so abhorrent that the interest of justice would not be served to apply the guidelines.’”

“Then the document goes on to say – and this is what is issued to the courts – ‘It is only permissible to depart from the Guidelines in exceptional circumstances where such departure can be justified’,” he read.

“Well now surely a departure could have been justified in that case,” the Prime Minister concluded.

He also noted that it says a sentencing judge/magistrate must give clear reasons for this departure.

“…The guidelines are not written in stone, if you see what I mean. They’re what they are, guidelines,” he pointed out.

Nevertheless, the Prime Minister clarified that he wasn’t criticising the magistrate as he was not there and does not know all the facts.

However, he also questioned why no charges were laid under the Cybercrime Act, “Because I’ve been advised that this crime was on social media.”

Section 14 of the Cybercrime Act focuses on child pornography. It outlines that anyone who intentionally produces, offers or makes available, distributes or transmits, procures or obtains for himself or others child pornography through a computer system; possesses it on a computer data storage medium or obtains access to child pornography through information and communication technologies, commits an offence.

Upon committing the offence they are liable to – on summary conviction – a fine of up to $300,000 or to imprisonment for seven years or both.

On conviction on indictment, to a fine of $750,000 or to imprisonment for 20 years or both.

The Prime Minister also mentioned that, as it relates to legislative reforms for sexual offences, the Attorney General, Jaundy
for sexual offences, the Attorney General, Jaundy Martin gave a report in Cabinet last week as to the status of the reform, “because we have a process which has been going on and the legal draftsperson which has been dealing with this.”

“I didn’t say anything at the time because not everything when persons are commenting that I need to speak. I speak when I consider the time appropriate,” Gonsalves said.

On January 3, the Family Court handed down sentences of two years incarceration on each of two counts of indecent assault of a minor under the age of 15 years on the offender, and since then many Vincentians have been enraged. The maximum penalty for the crime is five years imprisonment. However, the man pleaded guilty at the earliest opportunity and it is mandated that in such an instant, the accused will receive a discount of one third on their sentence. Additionally, mitigating factors such as a clean criminal record prior to appearing before the court, have to be taken into consideration.

While the public does not usually become aware of cases before the Family Court, the predator in this matter appears to have filmed the act while on a video phone call with another adult. This video appeared to have been shared widely on social media and many persons seemed to have either viewed it, or heard of it.