The Queen v Franklyn Huggins

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 13 July 2010
• Judgment citation (vLex): [2010] ECSC J0713-1
• Court: High Court (British Virgin Islands)
• Docket Number: BVIHCR 2009/001
• Date: 13 July 2010

[2010] ECSC J0713-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

BVIHCR 2009/001

Between:

The Queen

and

Franklyn Huggins

Appearances:

Ms. Tiffany Scatliffe, Senior Crown Counsel and Mr. Valston Graham, Crown Counsel for the Crown

Mrs. Mary-Lou Creque and Mr. Walter Kirton for the defendant

(Criminal Law -Evidence and Procedure -Offences against the Person -Sexual Offences -Rape -Sentence -Matters to be considered)

JUDGMENT ON SENTENCING

Introduction

HARIPRASHAD-CHARLES J

1 On 21 June 2010, the defendant, Franklyn Huggins was convicted by a unanimous jury of raping his 15 year old step-daughter. He is now before the court for sentencing.

The facts:

2 The facts which the jury must have accepted can be summarized as follows: Mr. Huggins and the mother of the virtual complainant ("VC") were involved in a common law relationship since the mid-nineties. They have been living together at Soldier's Hill, Tortola, British Virgin Islands. The VC also resided with them. The VC was about 4 years old when her own biological father died of a heart attack. She was about 8 years old when Mr. Huggins came into her mother's life.

3 On Sunday, 21 January 2007, the VC's mother left the home to work at Belmont Estate. She left Mr. Huggins and the VC home alone. The VC and Mr. Huggins did not share a good relationship. She did not trust him because he previously had made sexual advances towards her. The VC had complained to her mother in the past but her mother did not believe her since Mr. Huggins would deny the allegations.

4 The VC got up about 11:00 a.m. Realizing that she was at home alone with Mr. Huggins, she became very uncomfortable. As a result, she decided to go outside to play with her dog. Thereafter, Mr. Huggins called the VC into the house and told her "to come watch a movie with him" in the room that the VC's mother and Mr. Huggins shared. Out of respect, she proceeded inside and took on his suggestion of watching the movie with him. However, upon entering the room she noticed that the DVD was a "blue" movie or a "porn" movie. She saw a man and a woman engaging in sexual acts. Mr. Huggins then told her that he can do such sexual acts to her. The VC became terrified so she exited the room and proceeded to her bedroom.

5 Shortly thereafter, the VC decided to take a shower. She removed her pants and underwear and wrapped herself in a towel. She was still wearing her bra and a sweatshirt-like top. She went into the kitchen to get an orange juice and returned to her bedroom. She sat on the bed trying to fix a broken hanger. Thereafter, Mr. Huggins came to her bedroom door wearing only a blue Hanes brief. He then told the VC that he wanted to take a shower with her. She told him to get out of her room. He refused to do so. Instead, he came on the VC's bed and forced her legs open with his hands. He then put his penis in her vagina for about 20 -30 seconds. Afterwards, he told the VC that he was going to buy condoms to use on her, that she must leave her door open for him and not to tell her mother. The VC told him that she will tell her mother. She then ran to the bathroom and locked herself inside. Mr. Huggins proceeded to the bathroom and began banging on the door, telling the VC that she must not tell her mother because she [her mother] is hypertensive and that would hurt her feelings.

6 The VC felt dirty and took a bath. Eventually, she came out of the bathroom and locked herself in her bedroom. She got dressed and contemplated climbing out the window to tell the neighbours what occurred. Shortly afterwards, the VC's eldest sister, S arrived to replace an ink cartridge in the VC's printer. S then asked Mr. Huggins for the VC. He responded quite normal that the VC was in her room. S then proceeded to the VC's bedroom door. She knocked but did not hear any response. She then went to the family room and asked Mr. Huggins to assist her in opening the ink cartridge. Thereupon, S went to the VC's door and knocked a second time; this time S heard a voice that said "open." S went in and saw that the VC was crying. S asked the VC if she was upset with her. The VC nodded "no." S then asked whether the VC was upset with their mother. Again, the VC nodded negatively. S said to her sister that you are scaring me and asked whether the VC was upset with Mr. Huggins. The VC cried some more and wrote a note stating "Marlon raped me don't tell anyone." S immediately went and confronted Mr. Huggins. He said that he was sorry and tried to give an explanation. S did not give him a chance as she began to use profane language. She went straight to the telephone in the kitchen to call the police. Mr. Huggins prevented her by pulling the cord of the phone from the wall. She then went and got the cordless phone in her mother's room and called the police.

7 The police came. Mr. Huggins was taken to Road Town Police Station. He was subsequently arrested and charged with the offence of rape.

Plea in mitigation

8 Learned Counsel, Mrs. Creque implored the court to temper justice with mercy on Mr. Huggins. She submitted that Mr. Huggins is a man of good character since he has no previous convictions. To substantiate this, Counsel called two character witnesses, namely Mr. Henley and Mr. Vanterpool to testify to Mr. Huggins' good character. The latter knew Mr, Huggins strictly from a business point of view. The former, is a good friend of Mr. Huggins and knows him socially.

9 Mrs. Creque submitted that the fact that Mr. Huggins has shown pornographic films to the VC should not be regarded as an aggravating factor. She also stated that Mr. Huggins is a diabetic but provided no medical evidence to that effect. All in all, she pleaded that the court should exercise leniency in the sentence that it will impose. Learned Counsel was extremely candid to the court in not even attempting to seek a non-custodial sentence for such a grave offence. I commend her for that.

Victim Assessment Report

10 The VC was examined by Dr. Simmonds on 24 January and 31 January 2007 respectively. No recent assessment was submitted to the court. The Crown however alluded that the VC had received follow-up counseling.

11 In her assessment, Dr. Simmonds stated that the VC blamed herself for the assault. She cannot come to terms with why Mr. Huggins would sexually assault her when she was like a daughter to him. She felt even more victimized when she was raped by Mr. Huggins. The VC was also traumatized by her mother's reaction and her mother blaming her for Mr. Huggins' arrest.

12 Dr. Simmons recommended that the VC undergoes further counseling. The Crown alleged that the VC did undergo some counseling but they have not provided the court with a recent assessment report.

Submissions by the Crown

13 Learned Crown Counsel, Mr. Graham provided a miscellany of judicial authorities on sentencing. These included several authorities from the British Virgin Islands, the OECS and England. The local authorities relied upon are R. v. Derek Cort, 1R. v. Ricky Callwood2, R. v. Tiffern Henley3, R. v. Robert Thomas4, R. v. Claudius Frett5, R. v. Winston Harrigan6 and

R. v. Malcolm Spencer. 7 The regional cases referred to are the consolidated cases of Winston Joseph v. R., Benedict Charles v. R., and Glenroy Sean Victor v. R., 8Dwight Dookie v. R. 9 and Gregory Burton v. R. 10 Finally, the English cases cited are R. v. Billan et al11, R. v. Christopher Millberry et al12 and R. v. Puru. 13

14 In Winston Joseph v. R. et al [supra], the Court of Appeal laid down the guidelines for sentencing in sexual offences. At page 9 of the judgment, Sir Dennis Byron CJ identified the aggravating as well as the mitigating factors that the Court must consider when imposing the appropriate sentence. The aggravating factors were identified as;

• i. If the girl has suffered physically or psychologically from the sexual assault.

• ii. If it has been accompanied by abhorrent perversions e.g. buggery or fellatio.

• iii. Violence is used over and above the force necessary to commit the offence.

• iv. The offence has been frequently repeated.

• v. The defendant has previous convictions for serious offences of a violent or sexual kind.

• vi. The victim has become pregnant as a result of the crime.

• vii. The victim is either very young or very old.

15 The mitigating factors are identified as follows:

• i. A plea of guilty should be met by an appropriate discount, depending on the usual considerations, that is to say how promptly he confessed and the degree of contrition and other relevant factors.

• ii. Where incest was consensual, in the case of a girl at least 16 years of age if it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for sexual inclinations.

• iii. Where the girl of at least 16 years of age made deliberate attempts at seduction.

• iv. Where the defendant is a first offender and/or a youth.

16 In the instant case, Mr. Graham submitted that the only mitigating factor is Mr. Huggins has no previous convictions. He identified five aggravating factors namely;

• i. At the date of the commission of the offence, the VC was very young: 15 years of age.

• ii. There is a considerable age gap between the VC and Mr. Huggins; he being 34 years older than the VC.

• iii. The VC has suffered physically and psychologically from the sexual assault: see the Victim Impact Assessment Report.

• iv. There was a breach of trust as Mr. Huggins was having an intimate relationship with the mother of the VC for many years and he assumed the position of step-father.

• v. Mr. Huggins showed pornographic movies to the VC.

Court's considerations

17 Short of homicide, it [rape] is the 'ultimate violation of self 14. It is a violent crime because it normally involves force, or the threat of force or intimidation to...