The Queen v Raymond Harrison [ECSC]

• Jurisdiction: British Virgin Islands
• Judge: Ellis J
• Judgment Date: 11 July 2014
• Neutral Citation: VG 2014 HC 15,[2014] ECSC J0711-2
• Date: 11 July 2014
• Court: High Court (British Virgin Islands)
• Docket Number: CRIMINAL CASE NO. 2 OF 2013

[2014] ECSC J0711-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CRIMINAL)

CRIMINAL CASE NO. 2 OF 2013

Between:

The Queen

and

Raymond Harrison

Appearances:

Mr. Valston Graham, Senior Crown Counsel for the Crown

Mr. Patrick Thompson for the Defendant

Ellis J

1 Raymond Harrison, "the Defendant" was arraigned on an indictment which charged him with three offences. On count 1, Unlawful Sexual Intercourse with a girl over the age of 13 but under the age of 16 years contrary to section 119 of the Criminal Code 1997. On count 2, Rape contrary to section 117 of the Criminal Code 1997 and on count 3, he was charged for Possession of Child Pornography contrary to section 284A (2) (c) of the Criminal Code 1997, as amended. On arraignment, he pleaded not guilty to all three (3) counts on the indictment. A trial commenced and on 11th July 2014, he was convicted on all three counts by a unanimous jury. A sentencing hearing was subsequently conducted and the Defendant is now before the Court for sentencing.

Facts of the case

2 The Defendant is a Jamaican national. Following an introduction by his wife, he became a close family friend of Mrs. Alecia Smith, the mother of the Virtual Complainant, Shanice Rose "the Complainant". As a close family friend, he was allowed to supervise and correct Mrs. Smith's children including the Complainant. In addition, both families participated in social gatherings at each other's home. The relationship between the families was a close one with the Defendant assuming a father-like role to the Complainant.

3 The facts which gives rise to counts 1 & 2 on the indictment occurred at Cow Wreck Bay Beach and Loblolly Bay Beach on the Island of Anegada.

Count 1 — Cow Wreck Bay Beach

4 On a date unknown between June 30 ^th 2010 and September 1 ^st 2010, the

Complainant was on her way from steel band practice when the Defendant who was driving a rental car offered her a ride. The Defendant drove to Cow Wreck Bay Beach, told the Complainant to get out of the vehicle and asked to have sexual intercourse with her. The Complainant agreed subject to the Defendant taking her home before 5:00 p.m. The Complainant removed her pants and underwear, the Defendant removed his pants and boxers and they engaged in sexual intercourse. The Complainant also stated that at some point, the Defendant started to put his penis in her mouth. Thereafter, the Defendant drove the Complainant home before 5:00 pm.

Count 2 — Loblolly Bay Beach

5 On a date unknown between June 30 ^th 2010 and September 1 ^st 2010, the

Complainant, her siblings and her cousins were on the beach at Loblolly Bay swimming. The Defendant was at the beach in the presence of Sylon Forbes and other friends. The Complainant went to use an open bathroom to rinse off. As she was coming from the bathroom, the Defendant approached her. He was carrying a knife and ordered her back to the bathroom. She backed up to the bathroom and the Defendant told her he was going to have sexual intercourse with her.

6 The Defendant threatened to use the knife on her if she screamed. The Defendant then had sexual intercourse with her without her consent. In the process, the Complainant sustained a cut on her hand from the Defendant's knife. After the Defendant left, the Complainant observed that she was bleeding. She used a paper towel to prevent the blood from spreading and returned to the water. She soon observed blood in the water. When her cousin inquired about the bleeding, the Complainant denied knowing the source of the bleeding and left the water.

Count 3 – Child Pornography

7 Sometime during the night of 22 ^nd March 2013, the Complainant's mother Mrs.

Alecia Smith received information which resulted in her visiting and confronting the Defendant at his home. The Defendant admitted that he had received some naked photographs of the Complainant, but did not disclose to her the source. Following the confrontation, Mrs. Smith visited the Anegada Police Station where she made a report.

8 Constable Williams received the report and carried out the initial investigations. He visited the home of the Defendant, where he was met in company of one Sylon Forbes. Constable Williams informed the Defendant of the report made by Alecia Smith. On being informed of the report, The Defendant admitted to the Police that he received some naked photographs from Sylon Forbes and that they included naked photographs of the Complainant. He told the Police that one of the photographs showed the Complainant's body with her vagina, breast and face exposed against an open background. The Defendant stated that he received the photographs on his Nokia cellular phone and had possession of the photographs for a period of about one week after which he deleted the photographs.

9 The Defendant repeated his oral admissions of possession of the photographs in a caution statement to Constable Williams and in an audio/visual interview conducted by Detective Sergeant Bobb. He was formally arrested and charged by the Police. The disputed issue for the jury in respect to count 3 was whether the Defendant kept the photographs for an unreasonable time before deleting them. By their verdict, they concluded that the Defendant having received the photographs did not delete them within a reasonable time.

Expert Evidence

10 The Crown called Mrs. Brenda Fahie who was deemed an expert in School Psychology. At the request of the Complainant's mother, Mrs. Fahie carried out an evaluation of the Complainant. She gave evidence as to the mental development and cognitive functioning of the Virtual Complainant. According to Mrs. Fahie, the Complainant has an IQ level of 57 and suffers from mild retardation. At the age of sixteen years, the Virtual Complainant was also diagnosed as having a cognitive functioning of a six or seven year old.

The Offences – Legislated Penalties

Unlawful Sexual Intercourse with a Girl under 16 years

11 Section 119 of the Criminal Code of the British Virgin Islands 1997 provides that any man who has sexual intercourse with a girl, over the age of 13 years and under the age of 16 years commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.

Rape

12 Section 117 (1) of the Criminal Code 1997, as amended by the Laws of the Virgin Islands stipulates that any person who commits rape is liable to imprisonment for life.

Possession of child pornography contrary to Section 284A (2) (c) of the Criminal Code of the British Virgin Islands 1997 as amended

13 Section 284A (2) (c) of the Criminal Code 1997, as amended by the Laws of the Virgin Islands stipulates that any person who is convicted of child pornography is liable to imprisonment for a term not exceeding fourteen (14) years.

14 At page 9 – 10 of the Wolfenden Committee on Homosexual Offences and Prostitution (1957) expressed the function of the criminal law in the field of sexual offences in the following way.

"…to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence."

15 This is not a duty which should be shirked in any way and it must in the Court's view, translate into a prescription of appropriate penalties.

Defendant's Personal Circumstances and Plea in Mitigation

16 Counsel for the Defendant advised the Court that the Defendant is a Jamaican National who has resided in this Territory for the past 14 years. He is employed as chef. He is married and together with his wife he resides at Anegada with his 2 young children. He also has two other children who reside in Jamaica. All of his children are of school age and are dependent on him for support.

17 On administering the allocutus, the Defendant elected to say nothing prior to sentencing. His Counsel indicated that an apology or any show of remorse would be wholly inconsistent with the defence. However, Counsel advised the Court that the Defendant has no previous convictions and that he has been in custody since 27 ^th March 2013.

Aggravating and Mitigating Factors

18 A sentencer must take into account both the crime and the criminal. In so doing, the sentencer should take into consideration and be guided by the aggravating and mitigating factors, in so far as they exist.

19 In Winston Joseph v The Queen1, Byron CJ stated at paragraph 17 that the actual sentence imposed will depend upon the existence and evaluation of aggravating and mitigating factors. The sentencer must not only identify the presence of aggravating and mitigating factors, but must embark upon an evaluative process. The aggravating and mitigating factors must be weighed. If the aggravating factors are outweighed by the mitigating factors, the tendency must be towards a lower sentence. Where the mitigating factors are outweighed by the aggravating factors, the sentence must tend to go higher.

20 Counsel for the Prosecution identified the following aggravating factors are applicable in relation to Counts 1 and 2 2:

• i. Deliberate targeting of a vulnerable victim;

• ii. Prevalence of sexual offences;

• iii. The use of threats, or force;

• iv. The disparity in ages between the defendant and the victim;

• v. Breach of trust;

• vi. Repeat offending;

• vii. Sexual intercourse accompanied by acts abhorrent to the victim: i.e. fellatio

21 Save for the prevalence of sexual offences, Counsel for Defendant concurred with aggravating factors listed. He referred the Court to an excerpt of the UK Sentencing Guidelines which deals with the criteria of " Seriousness" and in particular how the issue of prevalence is addressed.

1.38 The seriousness of an individual case...