CCJ reduces jail sentence of convicted rapist

The Caribbean Court of Justice (CCJ) has reduced from 23 years to 12 years the jail sentence imposed on a man convicted of rape, on finding that the initial sentence was manifestly excessive.
Following a trial before Justice Jo-Ann Barlow and a jury in 2015, Calvin Ramcharran, 30, was found guilty of two offences; namely: rape, and assault causing actual bodily harm, committed on a 20-year-old woman in June 2012.
Justice Barlow had sentenced Ramcharran to 23 years on the rape charge, and three years on the assault charge, and has ordered that the sentences be served concurrently.
Ramcharran’s three-year sentence for assault causing actual bodily harm has, however, been affirmed by the CCJ in its majority ruling, rendered on Friday. In the end, the regional court has ordered that the 12-year sentence and the three-year sentence be served concurrently.
The rape convict, through his lawyer Nigel Hughes, had appealed his convictions and sentences at the Guyana Court of Appeal (CoA), but those sentences were affirmed in January 2021. The CoA had only granted Ramcharran leave to appeal his sentences at the CCJ.

Precedent not followed
The CCJ has said that the sentence imposed by the lower court for rape, and upheld by the Court of Appeal, was not only manifestly excessive, but that the Court of Appeal had failed to follow the comprehensive guidelines for trial judges in relation to rape cases.
The apex court noted that the procedure is found in its earlier decision in the case of Linton Pompey vs the Director of Public Prosecutions (DPP) of Guyana.
On September 21, 2015, Pompey was convicted on two counts of rape and one count of sexual activity with a child under the age of 16. He was respectively sentenced to 15 and 17 years in prison on the first and second counts of rape, and to five years in prison on the sexual activity charge.
Trial Judge Barlow had ordered that the sentences were to be served consecutively — bringing the convict’s total sentence to 37 years’ imprisonment. The sentences were later affirmed by the Guyana Court of Appeal.
But in a majority ruling in May 2020, the CCJ found that the 37-year sentence was manifestly excessive. While the CCJ affirmed the sentences imposed by the Appeal Court, it ordered that they be served concurrently, reducing Pompey’s sentence to 17 years.
Moreover, in deliberating on Ramcharran’s case, the failings of the trial court highlighted by the CCJ were as follows: that the trial judge failed to give reasons for, and indicate, the process used to arrive at the sentence; failed to hold a separate sentencing hearing to take a victim impact statement; failed to obtain mental health/psychological assessments; and failed to obtain a social/probation report.
While the trial judge did hear a plea in mitigation, and did not impose the maximum sentence for rape, which is life in prison, because she gave no reasons to indicate how she arrived at the 23-year jail term, the CCJ noted, it could only “infer” what the trial judge considered in arriving at the sentence imposed.
Moreover, the CCJ found that the Court of Appeal, in reviewing the trial judge’s sentence, erred in failing to follow the precedent in Linton Pompey vs the DPP.
Because the Court of Appeal failed to be guided by this precedent, “which it was bound to do”, the CCJ said, it failed to apply the proper sentencing principles and objectives to the determination of the issue raised by the appeal; that is, whether the sentences were manifestly excessive or wrong in principle.
As a result of this, the final court of resort held that the Court of Appeal failed to consider if a different sentence should have been imposed.
Noting that it has jurisdiction under the CCJ Act to review the sentences, the CCJ, in considering the starting sentence for rape, as well as the aggravating and mitigating factors, reduced the 23-year jail sentence to 12 years.
In respect to the three-year sentence for assault causing actual bodily harm, this was affirmed by the CCJ, which ordered that it be served concurrently with the rape sentence.
“Because the sentence for three years is to be served concurrently, there is no double punishment for this offence, and it will be left to stand for its demonstrative and deterrent effect”, the CCJ said.
The majority judgement was delivered by CCJ Judges Denys Barrow, Winston Anderson and Andrew Burgess.

Disagreed
Meanwhile, in a separate judgement, CCJ Judges Maureen Rajnauth-Lee and Peter Jamadar agreed that the sentence imposed for rape was excessive, and needed to be reviewed. The two judges held that the sentence was “suspect” because, although rational or evidence-based approach was taken, the Court of Appeal did not follow the methodology recommended in the majority judgement in the Pompey case.
These judges have said that the trial court’s failure to adhere to these guidelines has rendered the sentence “presumptively excessive and disproportionate”. The judges reasoned that the evidential deficit and procedural shortcomings, taken together with the failure to follow the sentencing approach explained in Pompey, resulted in a sentencing hearing that was flawed, and one that did not meet the threshold standard to constitute a fair hearing that could produce a fit, proportionate and just sentence.
Justices Jamadar and Rajnauth-Lee, however, disagreed with the 12-year sentence imposed by the majority of the court. Providing reasons, they noted they both would have imposed a sentence of 16 years’ imprisonment for the offence of rape.

Arguments
Ramcharran had argued before the CCJ that, when compared to precedents set by the very CCJ, the Court of Appeal did not adhere to established sentencing guidelines. In advocating his case, the convict had relied heavily on the Pompey case.
While he acknowledged the serious nature of sexual offences, Hughes had said that given the directives outlined in the Pompey case, in which the complainant was a child, in Ramcharran’s case, where the complainant was an adult, he thought the Court of Appeal would have lowered his client’s sentence.
On behalf of the State, Assistant Director of Public Prosecutions, Diana Kaulesar-O’Brien, had told the CCJ that when considering the majority of comparable cases in Guyana, the sentences imposed on Ramcharran did not fall outside of the ranges in those cases.
As it relates to whether a sentence starting-point or range in relation to an adult victim of a sexual offence should be necessarily lower, Kaulesar-O’Brien had reasoned that this would depend primarily on the circumstances of the particular case.
Relying on case law authorities, the prosecutor had submitted that the Court of Appeal was right in not interfering with the sentences, since it did not find them to be wrong in principle, nor did it consider them to be manifestly excessive or unjust.

Factual background
In Ramcharran’s case, the evidence disclosed that, on the night in question – July 23, 2012 – the woman had gone to a party at Soesdyke, East Bank Demerara (EBD) with some friends, and was making her way to the washroom when Ramcharran followed her and asked her if she was “doing business.”
When she replied, “No”, he grabbed her hands. A fight ensued between them, during which Ramcharran hit her several times with a bottle to her head, and then dragged her to the back of the building. While there, he choked and punched the woman, after which he had sex with her against her will.
After committing the heinous act, he offered the woman $65,000 and instructed her to meet him at a car on the road. However, the victim, whom the convict had stripped of her clothes, alerted her friends, who immediately carried her to the hospital.
The matter was reported, and Ramcharran was arrested and prosecuted. (G1)