The State v A.R
| Jurisdiction | Dominica |
| Judge | Thomas W.R. Astaphan, K.C.; J |
| Judgment Date | 24 July 2023 |
| Neutral Citation | DM 2023 HC 27 |
| Docket Number | DOMHCR2022/0022 |
| Court | High Court (Dominica) |
The Honourable Thomas W.R. Astaphan, K.C., J (Ag.)
DOMHCR2022/0022
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
A.D. 2023
Ms. Sherma Dalrymple, Director of Public Prosecutions, assisted by Ms. Marie Louis Pierre-Louis, State Attorneys for The Commonwealth of Dominica
Mr. Edward Peter Alleyne, Director of the Legal Aid Clinic, for the Accused
Thomas W.R. Astaphan, K.C.; J (AG.): Given the nature of this case, the names of the parties, both adults, shall not be used so as to preserve the privacy of the Virtual Complainant.
The facts in this case are not in dispute.
In summary, they are that the Virtual Complainant G.T. (“V.C.”) was at her home on 24 th February 2020, conversing with a friend when A.R. entered her front yard.
He had a microphone in his hand and was singing loudly.
He was asked by the V.C. and her friend to desist from his loud conduct. He ignored them.
Shortly thereafter the V.C. stated that she was going to take a bath.
She entered her home and shortly after reappeared and walked past her friend and A.R. and entered her outdoor bathroom.
The bathroom is located about 7 feet to the eastern side of the front entrance of her house.
The bathroom has three sides, with the entrance being without door or curtain, thereby rendering it not private. This fact, however, does not present an invitation to anyone to exploit it, and to thereby deprive the V.C. of her expected privacy in the comfort of her home.
While the V.C. was in her shower she heard A.R.'s voice in her immediate vicinity. She looked up and saw him standing at the entrance of her bathroom looking at her and speaking.
She immediately asked told him to leave.
He did not leave.
Instead, he lunged at her and pinched the nipple of her left breast.
She angrily ordered him to leave.
He did not leave, and he again lunged at her and pinched the nipple of her left breast.
The V.C. told A.R. that she was going to make a report to the Police. He then turned away from her and left the scene.
One year and seven months later, on Tuesday 28 th September 2021, a report of the incident now only having been made, A.R. was arrested on suspicion of indecent assault.
He was charged with that offence on the next day.
On Thursday 30 th September 2021 A.R. was brought before a Magistrate and was remanded to prison where he stayed until he obtained bail on 11 th January 2022.
A.R. has no previous convictions.
A.R. was indicted on an Indictment with one Count that he indecently assaulted the V.C. by pinching the nipple of her breast contrary to section 13(1)(c) of the Sexual Offences Act Chapter 10:36 of the Laws of the Commonwealth of Dominica which reads:
“Any person who indecently assaults another is guilty of an offence and liable on conviction to imprisonment –
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(c) for five years, if committed on a person who is sixteen years of age or more.”
The V.C. is 57 years old.
The law which guides this sentencing exercise, in respect of the principles underlying the objectives of sentencing, is to be found in the celebrated case of Desmond Baptiste et. Al v R 1 out of the Eastern Caribbean Court of Appeal. The Eastern Caribbean Court Compendium Sentencing Guidelines for Sexual Offences, Re-Issue: 8 th November 2021 is the vehicle which takes us on the journey of sentencing in the context of the Baptiste objectives.
Baptiste establishes the objectives as:
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(i) Retribution – in recognition that punishment is intended to reflect society's and the legislature's abhorrence of the offence and the offender;
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(ii) (ii) Deterrence – to deter potential offenders from offending, and the offender himself from recidivism;
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(iii) (iii) Prevention – aimed at preventing the offender through incarceration from offending against the law and thus protection of society; and
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(iv) (iv) Rehabilitation – aimed at assisting the offender to reform his ways so as to become a contributing member of society.
Step 1 of the Guidelines is to establish the starting point (of the sentence) for the offence, which requires an assessment of the seriousness of the offence, and its consequences on the victim, by reference to the harm caused, considering the culpability of the offender. This is a four-stage process.
Stage 1 is to consider the consequence in relation to the harm caused by the offence and there are three categories.
Consequence Category 1 – Exceptional, which admits of extreme psychological and/or physical harm supported by evidence, extreme degradation/humiliation, use of extreme force, victim under 10 years of age, victim 65 years and over.
(i) On the deposition of the V.C. the only consequence she establishes is that she felt ashamed, she didn't “feel good”. Clearly, therefore, this is not a Category 1 case.
Consequence Category 2 – High, which admits of serious psychological and/or physical harm supported by evidence, significant degradation/humiliation, use of significant force, victim under 16 years of age, STI a consequence of the offence.
(i) Again, on the deposition of the V.C. none of these apply and therefore this is not a Category 2 case.
Consequence Category 3 – Significant, admits of when none of the factors of categories 1 or 2 are present.
(i) Axiomatically, this is the Consequence Category applicable to this offence, “ Significant”, according to the Guidelines. Both the State and the Convict agree on this categorization.
The second stage requires a consideration of the seriousness of the offence by assessing the culpability of the offender.
There are two levels of seriousness: Level A – High and Level B – Medium. None of the factors to be considered in High are present and the major factor for Medium is not present. However, like Category 3 above, Medium has a “sprat net” catch-all phrase, “Other cases where the characteristics for Level A are not present.” This therefore would be a Level B – Medium case.
Therefore, according to the Guidelines' Third Stage – the Level B Seriousness and the Category 3 Consequence establishes the Starting Point (“S.P”) of the applicable punishment as “Likely non-custodial”. Again, both the State and the Defence Counsel are in agreement on this S.P.
The next stage requires the determination of the existence of aggravating and mitigating factors of the offence. Again, both the State and Defence Counsel submit that there are no aggravating or mitigating factors of the offence. Having reviewed the depositions and the factors to be considered at this stage, I am in agreement with both Learned Counsel.
The next stage is the consideration of aggravating and mitigating factors of the offender.
The Guidelines suggest for consideration previous...
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