Appeal Court slashes taxi driver's 35-year sentence

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Appeal Court slashes taxi driver's 35-year sentence

BY ALICIA DUNKLEY
Senior staff reporter
dunkleywillisa@jamaicaobserver.com

Saturday, November 28, 2020

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The St Thomas taxi operator who was sentenced to 35 years in prison in 2017 for sexually assaulting an 11-year-old girl he was contracted to transport to school has had his sentence slashed on appeal.

Delton Smikle, following a trial before a judge and jury in the St Thomas Circuit Court, was found guilty of forcible abduction (count 1) and having sexual intercourse with a person under the age of 16 years (count 2). Consequently, he was sentenced to 15 years' imprisonment at hard labour in respect of count one and 20 years' imprisonment at hard labour for count two with the sentences to run concurrently. It was also ordered that his name be entered in the Sex Offenders' Registry.

Smikle, however, was given leave in 2019 to appeal the sentences on the basis that they were manifestly excessive. His attorneys argued that, in respect of the offence of forcible abduction, a sentence of four years' imprisonment at hard labour would be more appropriate. They further argued that Smikle should have been charged under section 20(1) of the Sexual Offences Act, which carries a lesser penalty, as against section 17, as no weapon was used in the commission of the offence. They further contended that the learned trial judge also erred when she used the maximum sentence of 15 years as the starting point to arrive at the final sentence.

In respect of the charge of sexual intercourse with a person under the age of 16 years, Smikle's lawyers contended that the judge failed to indicate how she arrived at the sentence of 20 years' imprisonment at hard labour, was not balanced in her approach to sentencing, and failed to take the appellant's good character into account.

They further took umbrage with the trial judge's approach to the issue of remorse, pointing out that she had told the convict that she saw no remorse on his part when, in fact, Smikle, in his social enquiry report, stated that he had taken responsibility for his actions and expressed concern for the people who had been hurt by his actions.

Yesterday, the Appeal Court panel, comprising Justice Hilary Phillips, Justice Paulette Williams and Justice Nicole Simmons, in handing down their decision said: “[I]n light of the lack of clarity in the learned trial judge's approach to the sentencing process, and in accordance with the established practice of the court,” they considered “the question of sentence afresh.”

They said, while by virtue of section 17 of the Sexual Offences Act, a person who is convicted of the offence of forcible abduction may be imprisoned for a maximum term of 15 years, in seeking to arrive at an appropriate starting point it must be borne in mind that the maximum penalty of 15 years' imprisonment is reserved for the worst cases.

“The facts, as outlined, do not indicate that this is such a case, although from the information in the social enquiry report the complainant has been deeply affected by this incident. According to that report, the complainant, who was head girl at her school, has, since the incident, refused to go to school and has become promiscuous,” the judges said.

They further noted that the trial judge's stance must be balanced with sections of the social enquiry report in which Smikle said he and the student became friends as he regularly transported her and her older sister to school. He said on the day in question he picked up both children, along with others, and took them all, except [the complainant] to their designated locations.

He said they decided and went to his home where they both engaged in sexual activity. Smikle stated that he accepted responsibility, and was deeply disappointed at his actions, as he should have waited until the complainant was of the age of consent before engaging in sexual activities with her.

According to him, he was very concerned of [sic] the negative psychological and emotional effect the ordeal might have had on the complainant. He added that taking into consideration the lives that were hurt by his actions he was even more regretful for not admitting guilt before now. He said it was the shame and disgrace, along with the fear of the unforeseen, that caused him to maintain his innocence over the years.

According to the Appeal Court panel, from this admission, “whilst it is unsettling that the appellant was still maintaining that the complainant agreed to go to his home to have sexual intercourse, he has expressed regret”.

“It is therefore unclear how the learned trial judge arrived at the conclusion that the appellant had not accepted responsibility for his actions and had expressed no remorse,” they said.

They further concluded that “in the circumstances, a sentence to nine years' imprisonment is appropriate” on the count of forcible abduction.

In respect of count two, which carries a maximum penalty of imprisonment for life and a statutory minimum of 15 years, the panel said the “case, though reprehensible, does not fall within that category to receive the maximum penalty”. They further said the trial judge erred in her sentencing decision, where she chose a starting point of 15 years' imprisonment, which is the usual starting point for the offence of sexual intercourse with a person under the age of 16 years, and added five years based on what was described as his lack of remorse.

Said the judges: “We have concluded that a sentence of nine years' imprisonment would have been appropriate in this case in respect of count 1 and 18 years' imprisonment in respect of count 2 (a total of 27 years, instead of 35). We agree with counsel for the appellant that the learned trial judge erred in her approach to sentencing and thereby imposed sentences that were manifestly excessive.”

The judges, however, upheld the decision by the trial judge to have Smikle recorded in the Sex Offenders' Registry.

The sentences should be seen as having commenced on September 22, 2017.


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