Guyana needs sentencing guidelines for child sexual offences – CCJ

– as it reduces sentence for man convicted of raping 14-year-old

The Caribbean Court of Justice (CCJ) on Thursday underscored the need for sentencing guidelines to be developed and published by the Judiciary of Guyana.

This observation was made in a ruling handed down by the regional court, in which it reduced the sentence against convicted rapist Linton Pompey, who is currently serving 37 years’ imprisonment for sexually assaulting a 14-year-old relative.
The High Court had convicted Pompey in 2015 for sexual penetration of a child under the age of 16, which had occurred twice between 2012 and 2013; and he had respectively been sentenced to 15 and 17 years’ imprisonment. He was also sentenced to an additional five years for engaging in sexual activity with a minor in 2011.
The trial judge had ordered that the sentences run consecutively, making the total prison time 37 years. However, the father of 12 had subsequently appealed his conviction and sentence, but that appeal had been dismissed by the Court of Appeal, thus he had approached the CCJ – Guyana’s final appellate court.
The CCJ had given Pompey only permission to appeal his claim that his sentences were too severe.
In the CCJ decision on Thursday, it was noted that all seven judges of the CCJ had unanimously agreed that the cumulative 37-year sentence was excessive, but the judges were divided on how that time should be reduced.
The majority opinion was delivered by CCJ President Justice Adrian Saunders on his behalf and on behalf of Justices Maureen Rajnauth-Lee, Denys Barrow, Andrew Burgess and Peter Jamadar. They noted that although it was open to the trial judge to order consecutive sentences, as the offences arose from separate incidents, the trial judge did not sufficiently consider that the resulting combined sentence would be excessively high.
The CCJ judges noted that the trial judge could have imposed for the second rape, the most serious offence, a sentence that fairly reflected the offender’s overall criminality. In this way, they explained, Pompey would have served the lesser two sentences simultaneously with the sentences given for the second rape.
In applying this option, the majority held that the sentence of 17 years passed for the second rape was neither so lenient nor so harsh that it warranted being set aside by an appellate court. The majority therefore did not adjust that sentence, but ordered that the other two sentences be served at the same time with it, resulting in an overall sentence of 17 years.
In his opinion, Justice Saunders considered first the issue of concurrent and consecutive sentences in the context of the Totality Principle, which requires the judge to give a sentence that reflects all the offending behaviour that is before the court. But this is subject to the notion that the total or overall sentence must be neither too harsh nor too lenient.
It was noted that if the judge chose to give consecutive sentences, care needed to be taken to ensure that due regard was paid to the Totality Principle. The court accepted that there was no regard paid to the Totality Principle in this case.
Nevertheless, in his conclusion, the CCJ President suggested that the practice of passing sentence immediately after a verdict comes in should generally be eschewed, especially in cases where there is a likelihood that a lengthy prison term may be imposed.
In such cases, Justice Saunders opined, the judge should hold a separate sentencing hearing, at which mitigating and aggravating factors, including mental health or psychological assessments, can better be advanced and considered.
The court also expressed the view that Guyana’s trial judges would be better served if they followed appropriate guidelines that suggest various sentencing ranges for the most prevalent crimes.
Meanwhile, in separate concurring opinions, Justices Rajnauth-Lee and Jamadar focused on the alarming prevalence of sexual offences against children, and the robust approach that was required in respect of sentencing for such offences.
However, Justices Wit and Anderson, in their joint dissenting opinion, considered that appellate courts are given wide powers to review sentences. As the cumulative 37 years in prison was excessive, the sentences imposed should be replaced by sentences that were warranted in all the circumstances of the case. These two judges considered that the sentences should accordingly be replaced with nine years for the second rape, six years for the first rape, and nine months for the sexual assault conviction; and also have ordered that these sentences run concurrently.
Pompey was represented by Attorneys Nigel Hughes and Ronald Daniels, while the Director of Public Prosecutions (DPP), Shalimar Ali-Hack SC, appeared on behalf of the state, in association with Teshana Lake and Natasha Backer.