The Queen v Andre Penn
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 31 March 2011 |
| Date | 31 March 2011 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHCR2009/0031 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CRIMINAL)
BVIHCR2009/0031
Mrs. Elizabeth Hinds Director of Public Prosecutions and Ms. Jude Hanley, Crown Counsel for the Crown
Mr. Dane Hamilton QC and Mr. Herbert McKenzie for the Defendant
(Criminal Law — Sentencing — Offences against the Person — Sexual Offences — Unlawful sexual intercourse with a girl under thirteen — Indecent Assault — Buggery — Sentence — Matters to be considered)
On 2 March 2011, the defendant, Andre Penn was found guilty by a unanimous jury of the following offences:
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(i) 7 counts of Indecent Assault committed between 2006 and 2008 on a girl under 13 years of age;
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(ii) 2 counts of unlawful sexual intercourse committed in 2007 and 2008 respectively with a girl of or under 13 years of age; and
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(iii) 3 counts of buggery committed in 2008 on a girl of or under 13 years of age.
Mr. Penn is now before the court for sentencing on these 12 counts.
The salient facts of the case as presented by the Learned Director of Public Prosecutions, Mrs. Hinds are as follows: Mr. Penn is married to one of the Virtual Complainant's (the ‘VC’) aunts. The VC was born in December 1996 in St. Vincent & the Grenadines. She came to the British Virgin Islands (‘the BVI’) in 2005. From about March 2006, the VC began living with Mr. Penn and her aunt. Prior to that, she was raised by various members of her father's family. She has never lived with both of her parents.
While living with the Penns, the VC and Mr. Penn had a very good relationship. He assisted his wife in taking care of the VC. He transported her to school. He kept her at his office after school until his wife was ready to go home. He would leave with the VC to collect his wife and they would all go home to Josiah's Bay together. He assisted the VC with her school work. He along with his wife visited her school to speak with her teachers. All in all, they were interested in the welfare of the VC.
Before September 2008, the VC took the bus from school. She would be at her aunt, Mrs. Frett's business premises or with her grandmother or at Mr. Penn's office from between 3:30 p.m. to after 6 pm. From September 2008, the VC took extra lessons. The arrangement was that her father would collect her after lessons ended and he would take her to Mr. Penn's office. She would arrive there shortly after 5:00 p.m. On Fridays, her school would close early and she would use the bus to either go to Mrs. Frett's store or to Mr. Penn's office.
The VC occupied the second bedroom in Mr. Penn's home. It was the bedroom in which Mr. Penn kept his clothing even before the VC had moved in. He continued keeping his clothes in her room.
On 11 February 2009, the VC was ill at school. She unwillingly spoke to her teachers. As a result, the school called in the Social Development Officers and the Police. The VC was taken to Peebles Hospital where she was medically examined. Her hymen was missing.She identified Mr. Penn as the person who had sexual intercourse with her. She was also found to be suffering from a yeast infection. That very day, she was removed from Mr. Penn's home and taken to reside with Mrs. Frett and her family. As a result of what the VC told the police, charges were instituted against Mr. Penn.
No specific dates were given so the charges were framed between 1 January and 31 December in the relevant year. Additionally, the levels of seriousness varied from count to count.
The VC's evidence was to the effect that Mr. Penn began the assaults on her from 2006. It began by him entering her room to hang up his pants and while doing so, he kissed her on her lips and kept moving. Again, in 2006, he entered the VC's room. He kissed her longer on her lips and touched her vagina through her clothing. [First Count—Indecent Assault]
In 2007, an incident occurred at Mr. Penn's Office at Main Street, Road Town. It was a school day. Mr. Penn collected the VC from her aunt's store to do some work at his office. While at his office, he checked to ensure that no one was in the offices below his. He returned and locked his office door and told the VC to close the windows. He called the VC to sit on his lap and he touched her vagina. She took off her panty because he was pulling her pubic hair and it was hurting her. The touching lasted until her aunt called to be picked up. They left. [Second Count—Indecent Assault]
In 2007, there was an incident at Mr. Penn's office. It was a week end. Mr. Penn told his wife that the VC was going to help him do some filing. At the office, the VC turned on the computer upstairs. Mr. Penn went downstairs and turned on another computer. He returned upstairs and began to touch the VC's breasts saying that they will get bigger soon. After, the VC took off her clothes and went downstairs in the conference room and Mr. Penn entered and touched her vagina. [Third Count—Indecent Assault]
In 2007, at home in the VC's bedroom at Josiah's Bay, an incident occurred. It was in the night. Mr. Penn touched the VC's vagina and showed her how to suck his penis and she sucked it. [Fourth Count—Indecent Assault]
In 2007, at Mr. Penn's office at Main Street, Road Town. It was a week day and the VC was in his office. At 5:00 pm, Mr. Penn went downstairs and returned upstairs. He said to the VC that Ms. Peters was there but she was no problem. He touched the VC's vagina and kissed her. He warned her not to tell anyone because he could get in serious trouble. He told her he was placing his finger in her vagina and preparing her for the real thing. He had his finger in her vagina until her aunt called. [Fifth Count—Indecent Assault].
In 2008, at home at Josiah's Bay, another incident occurred. It was in the night. Her aunt was in the bathroom. Mr. Penn sucked the VC's vagina and she sucked his penis. He ‘cum’ [ejaculated] in her mouth. [Eight Count—Indecent Assault].
In 2008, at home at Josiah's Bay, yet another incident took place. It was a week end. The VC's aunt had gone to a funeral. Mr. Penn told the VC that he had something to show her. He later brought a yellow bag out of his vehicle. In the bag were sex tapes which he allowed her to watch. She got bored. When she was combing her hair, Mr. Penn touched her breast and sucked her vagina. He suggested a bath together which they took. While bathing, she heard her aunt's car. She hurriedly put on her clothing and went to open the door. [Eleventh Count—Indecent Assault]
In 2007, at Mr. Penn's office at Main Street, Road Town, something else happened. It was a weekend. Mr. Penn told his wife that the VC was going to help him to do paper work. At the office, he touched the VC's vagina and put his finger into her vagina. He asked the VC if she wanted the real thing and she answered in the affirmative. Mr. Penn left and went for condoms. He placed his finger in her vagina. He said it was to get her vagina wider to put the thing inside. Mr. Penn asked the VC to help him put on the condom because his hand sweats a lot and the condom would slip. The VC was on her back with her knees to her shoulder in his big chair. He took his time and put his penis into her vagina. He pushed inand out until he “cum’. When he was finished, he poured water into the condom. When the VC asked why, he told her it was to ensure it was not burst. He had wiped her with a tissue and she saw a little blood on it. [Sixth Count—Unlawful Sexual Intercourse with a girl of or under the age of 13]
Another incident occurred at Mr. Penn's office at Main Street, Road Town. It was a weekday. While the VC was in his office, Mr. Penn told her that he had something to show her. When it was about 5:00 p.m., he went downstairs to ensure that no one was there. He returned. After the windows and door were closed, he pulled upbackpage.com on the computer and visited other websites. He allowed the VC to view the porn site until she was wet. He then asked her if she wanted to have sex and she answered in the affirmative. She helped him to put on the condom. He fingered her vagina until it got wider. He told her why he was fingering her. He pushed in his penis and had sexual intercourse with her until he “cum”. [Seventh Count—Unlawful Sexual Intercourse with a girl of or under the age of 13]
In 2008, another incident occurred in Mr. Penn's office at Main Street, Road Town. It was a week day. The VC's father took her to Mr. Penn's office at about 5:00 to 5:15 p.m. Mr. Penn asked the VC if she wanted sex in her anus and she said ‘yes’. She knelt down in his chair. He began to push his penis into her anus but it would not go in so he spat on her anus and in his hand. He rubbed the saliva onto his penis, put his penis in her anus and began to push it in and out. She felt weird. When Mr. Penn “cum”, he put it on her back, went to the kitchen for a napkin and cleaned it off her. [Ninth Count—Buggery on a girl under the age of 13 years]
In 2008, something occurred in the night at their home at Josiah's Bay. Mr. Penn entered the VC's bedroom to hang up his pants. He kissed her. He then went to his bedroom and turned on the light in his room. He returned to the VC's room. She was on her knees on the bed. Mr. Penn used ‘spit’ to lubricate and he placed his penis in her anus. When he “cum”, he placed it on her back and used a napkin to wipe it off. [Tenth Count—Buggery on a girl under the age of 13 years.]
Another incident occurred in 2008 at Mr. Penn's office at Main Street, Road Town. It was a weekday. The VC's father took her to Mr. Penn's office. Mr. Penn checked on the persons downstairs. He returned and said Ms. Peters was there but she was no problem. He began to kiss the VC and asked her if she wanted sex in the anus. She...
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