The Queen v Andre Penn
| Jurisdiction | British Virgin Islands |
| Judge | Ramdhani J. |
| Judgment Date | 15 June 2015 |
| Neutral Citation | VG 2015 HC 9,[2015] ECSC J0615-3 |
| Docket Number | BVIHCR 2009/0031 |
| Court | High Court (British Virgin Islands) |
| Date | 15 June 2015 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
BVIHCR 2009/0031
Mr. Wayne Rajbhansie, The Director of Public Prosecutions, Mr. Valmont Graham, Senior Crown Counsel, Ms. Faulkner, Senior Crown Counsel for the Crown
Mr. Jerome Lynch Q.C. for Mr. Andre Penn
Criminal Law — Sentencing — Sexual Offences — Unlawful Sexual Intercourse with a Girl Under 13 — Buggery — Indecent Assault — Ranges of Sentence — Aggravating and Mitigating Features — Serious Breach of Trust — Offences Committed Frequently — Vulnerable Victim — Grooming — Significant Difference in Age Between Offender and Victim — First Offender — Positive Good Character — Whether a Mitigating Feature if Minor Victim Willing Participant — Whether a Not Guilty Plea Relevant to Determination of the Starting Point Sentence — Benchmark Sentence of 8 years for Unlawful Sexual Intercourse — Benchmark Sentence of 4 years for Buggery — Benchmark Sentences of 20 months and 3 years for Indecent Assaults.
Criminal Law — Sentencing — Retrial — Original Jurisdiction being Exercised on Sentencing — To be Based on Relevant Principle — Whether Sentencing Court to have Regard to Sentence at First Trial — Whether Sentencing Court may Impose Sentence of Greater Severity.
Criminal Law — Sentencing — Consecutive and Concurrent Sentence — Totality Principle — Overall Sentence to be Fair, Just and Proportionate Reflecting Criminality as a Whole — Three Categories of Offences — Whether Global Sentence may be Constructed by Combining Concurrent and Consecutive Sentences.
Criminal Law — Sentencing — Delay in Proceedings — Time Lost on Successful Appeal of First Conviction — Defendant's Responsibility for Delay — Defendant Utilizing Available Legal Means to Quash Indictment — No Ruling that Applications Frivolous or Vexatious — Some Applications Meritorious — Delay also Attributable to Significant Constitutional Point Raised on Fair Trial Provisions — Whether Reduction in Sentence to Mark Delay Appropriate.
Ramdhani J. (Ag.) On the 13 th December 2014, Andre Penn, the 'defendant' was convicted of eleven counts charged on a twelve-counts indictment relating to various acts of indecent assault, unlawful sexual intercourse with a girl under the age of 13 years, and buggery, all committed against a minor between years 2006 and 2009.
This has been the second trial of the charges on this indictment. On the first trial, the defendant was convicted of all twelve counts. On this occasion, the jury returned a verdict of not guilty of the 12 th count on the indictment. On his convictions on the eleven counts, the court ordered that a social inquiry report be prepared and that a victim impact statement be presented to the court at the sentencing hearing that took place on the 16 th February 2015.
The Learned Director has presented to this court a very useful bundle by way of sentencing guidelines in which he has captured to relevant facts that must have led to the verdicts of guilty in this case.
The offences were committed over the years 2006 to 2008 and committed against a young girl, SG, the biological niece of the defendant's wife who had been placed in their care. He and his wife became, during the relevant period, the primary caregivers of this child who was born in St Vincent to a mother who had never cared for this child. The child came to the BVI at the age of 8 years. Prior to that she had been living with her paternal grandmother from the time she was just months old. Here in the BVI, she spent a few months with her father and then was moved to another aunt, and finally in that very year she was placed in the care of the defendant and his wife to live with them in their two-bedroom house in Josiah's Bay. The defendant had a son from another union who visited and spent a spent an occasional few days once in a while. Effectively however, it was the defendant, his wife and the complainant who lived alone in the Josiah's Bay home during the relevant years.
As between he and his wife, it was defendant who spent more time with the complainant assisting her with her homework. He had been a past teacher, and it was undisputed that he acted generally as her mentor. On afternoons from school, she would arrive at his office, either coming there on her own or being dropped off by her own biological father. The office, occupying office space on two levels with a conference room on the lower level, was located in a building on Main Street, Road Town. There at his office, she would wait until he would leave for the day, picking up his wife at her workplace before going home.
Early in 2009, whilst in school one day, she fell ill. Her insistence that no one call her aunt or the defendant, and her general manner caused the teachers to become very concerned and they began to question her. She eventually disclosed that the defendant had been molesting her. She was taken to the hospital and it was discovered that she had a yeast infection, and in the doctor's opinion, she had been sexually active. That very day the authorities stepped in and she was removed from the home of the defendant.
The complainant was unable to recall the exact date each offence occurred but remembered the particular years and the order in which each one occurred. The counts were all crafted accordingly.
Count One – Indecent Assault – The incident grounding this charge occurred in 2006. The evidence in the case showed that the defendant kept his clothes in the complainant's bedroom and on one occasion when he came in to hang up his pants, he kissed the complainant and her lips and 'kept moving' along, leaving the room. On another occasion, shortly after this incident, he again came into the room. This time he kissed her longer on her lips and now touched her vagina through her clothing.
Count Two – Indecent Assault — The incident grounding this count occurred in 2007 at his office in Main Street in Road Town. 'It was a school day. The defendant had collected the complainant 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 the door and told the complainant to close the windows. He told the complainant to sit on his lap and he touched her vagina. This touching lasted until her aunt called to be picked up. They then left the office.'
Count Three — Indecent Assault — The third incident grounding this particular charge also occurred in 2007. This one too, took place in the defendant's office, but this time it was a on a weekend. The defendant told his wife that he would take the complainant to his office to assist him in some filing. At the office he touched her breast telling her that they would get bigger soon. He also touched her vagina in the conference room.
Count Four – Indecent Assault — The fourth incident, the subject of this charge, also occurred in 2007. This time it was in the complainant bedroom at the home in Josiah's Bay. It was in the night. The defendant touched the complainant's vagina and showed her how to suck his penis and she sucked it.
Count Five – Indecent Assault — This was another incident in 2007, this time occurring at the office of the defendant. After she had arrived at his office, at about 5.00 p.m. he checked downstairs to so if anyone was there and then told her that a 'Mrs. Peters' was there but that 'she was no problem'. He inserted his finger in the complainant's vagina and kissed her. He asked him why he was inserting his finger and he told her that he was preparing her for the 'real thing'. He was doing this for a while until her aunt called to be picked up. He told her not to tell anyone anything because he could get into serious trouble.
Count Six – Unlawful Sexual Intercourse with a Girl under the Age of 13 years – the defendant's sexual molestation escalated after the events grounding count five. One weekend in 2007, he told his wife that he would take the complainant to his office so that she could assist him with some filing. At his office, he touched and put his finger in her vagina and asked her if she wanted the 'real thing'. She told him 'yes'. He had a condom and asked her to help him put it on his penis as his hand was sweaty. She said that she was on her back with her knees up on his office chair. He put his penis in her vagina. He 'pushed in and out until he cum'. When he was finished he went into the office kitchen. She followed him and saw him putting water in the condom. She asked him about this and he said he was doing this to ensure that it had not burst. When they left, he threw the condom away.
Count Seven — Unlawful Sexual Intercourse with a Girl under the Age of 13 years – The incident grounding this charge also occurred in 2007. It was at his office in Road Town. It was a school day. He told her that he had something to show her. He made sure that no one was in the office downstairs and then after closing the door and windows, he accessed a website on his computer with the webpage address of 'backpage.com'. He used this to access a number of other websites and found those containing pornographic material. He and she watched the porn together. He asked her is she wanted to have sex and she told him 'yes'. She helped him put on the condom. He fingered her vagina. He told her he was fingering her to make her vagina wider. He pushed his penis in her vagina and had sexual intercourse with her until he ejaculated.
Count Eight – Indecent Assault – The next time the defendant sexually molested the complainant was again in 2008. This time he indecently assaulted her. It was at the home in Josiah's Bay. It was in the night and the defendant's wife was in the shower. The complainant said...
To continue reading
Request your trial