Finding there was no serious miscarriage of justice when a Guyanese man was sentenced to two terms of life imprisonment for engaging in sexual activity with an eight-year-old girl, the Caribbean Court of Justice (CCJ) has dismissed the man’s application for special leave to appeal.In that application, the convict, who is in his late 30s, had asked the regional court to review a decision of the Court of Appeal of Guyana, which had, in December 2022, affirmed the imposition of two concurrent life sentences on him for two counts of sexual activity with a child.
He was convicted by a jury in 2018, and was immediately sentenced by Justice Jo-Ann Barlow, who ordered that he must serve 20 years before he is eligible for parole.
The CCJ is holding its second itinerant sitting in Guyana
He then appealed his conviction and sentence to the Court of Appeal in 2018. Subsequently, the Court of Appeal delivered a unanimous judgment, dismissing his appeal and affirming his conviction and sentence.
Dissatisfied with that decision, the man applied for special leave to appeal to the CCJ, contending mainly that his sentence was manifestly excessive, and that the sentencing process of Justice Barlow was flawed.
He also contended that the Court of Appeal’s failure to review and correct these errors amounted to a serious miscarriage of justice, which justified the granting of special leave by the CCJ.
Requirements of special leave
In a judgment delivered at its itinerant sitting in Guyana, on Wednesday at the Arthur Chung Conference Centre (ACCC), the CCJ held that the principal question for determination was whether the sex offender had satisfied the requirements of special leave.
In order to be granted special leave, the apex court noted, the man was required to show there was a realistic possibility that a serious miscarriage of justice may have occurred. According to the CCJ, to satisfy this test, he was required to make an arguable case that the sentence imposed was manifestly excessive, and that the judicial sentencing process did not sufficiently meet acceptable fair hearing standards to avoid any serious miscarriage of justice.
Examining the sentencing process, the CCJ noted that in its judgment in Pompey v The Director of Public Prosecutions, a sexual offences case from Guyana, guidance was provided to trial Judges on the best practices to be followed in cases involving sexual violence on minors.
In another judgment, Ramcharran v The Director of Public Prosecutions, another sexual offence case from Guyana, the CCJ noted further that it affirmed these best practices with an expectation that they would be applied as and when appropriate.
Ideally, while this guidance ought to be followed to ensure that constitutional standards for a fair hearing are satisfied, the Court found that failure to do so in the extant case was not fatal. The CCJ noted that these cases were not yet decided when Justice Barlow had sentenced the man.
The CCJ pointed out that, in this case, Justice Barlow did not receive a victim impact statement, had sentenced the man immediately after the verdict was given, and did not consider a social services report. However, the CCJ was of the view that it is evident the trial Judge had considered the aggravating factors placed before her, including the young age of the complainant, the lack of a guilty plea, the convict’s attempt to shift blame, his repeated course of conduct, and the consequential emotional damage to the complainant.
No leniency
Based on these factors, and after having heard and considered the convict’s plea in mitigation, the CCJ said Justice Barlow had determined that, in the exercise of her discretion, she could not be lenient. Her approach demonstrated an intention to consider and balance relevant sentencing factors, though not necessarily as fully as advised in Pompey and Ramcharran, the CCJ said.
According to the apex court, the trial Judge’s sentencing remarks also showed that the offender’s rehabilitation and reintegration into society were taken into account.
With respect to his sentence, the CCJ said, life imprisonment was the maximum penalty under the relevant section of Guyana’s Sexual Offences Act, and was within the range of punishment options available to Justice Barlow.
Additionally, the CCJ found that the circumstances of the crime were well placed before Justice Barlow, who had found no mitigating circumstances.
Importantly, the CCJ observed that what made this case distinct in its severity was the special relationship of trust between the complainant and offender, and the young age of the former.
There were several precedents where those convicted of the crime of sexual activity and who were adults in positions of trust like the convict in this case, were given life imprisonment sentences. So, in his case, the CCJ found, the life sentence was neither extraordinary nor manifestly excessive.
In conclusion, the CCJ held that while the sentencing approaches and recommendations made in Pompey and Ramcharran were not precisely followed, it did not necessarily mean that Justice Barlow, in the exercise of her sentencing discretion, and the Court of Appeal in its review of the process, had erred in law and in fact so as to create any serious manifest injustice or miscarriage of justice.
Consequently, the CCJ dismissed the application for special leave, and ordered that each party should bear its own costs.
The matter was determined by Justices Maureen Rajnauth-Lee, Denys Barrow and Peter Jamadar. Attorneys Nigel Hughes, Ronald Daniels, Savannah Barnwell, Kiswana Jefford and Shawn Shewram represented the convict. Attorneys Teshana Lake and Diana O’Brien represented the Office of the Director of Public Prosecutions.
According to information disclosed at the Court of Appeal hearing, the man had first engaged in sexual penetration with the minor between January 1 and December 31, 2016, and then again on January 6, 2017 at a location in Demerara. He penetrated the child both vaginally and anally.
