A teen boy who was last year sentenced to 15 years in a juvenile correctional facility for sexually assaulting an eight-year-old has had his time behind bars shaved to mere months by the Appeal Court.

The boy had appealed his punishment based on a certificate issued by the sentencing judge who was of the opinion that the prescribed penalty was “manifestly excessive and unjust”.

In two incidents which occurred between 2018 and 2019 — the first when the convicted boy was 13 and the complainant eight — she was reportedly playing a game of “taxi and passenger” with her minor cousins in an old car parked in a relative’s yard when the boy came inside the car and requested that she remove her clothes.

According to the evidence of the child, she asked why, but got no response. The 13-year-old then sent the cousin, with whom the child was playing, out of the car after which he removed her underwear and penetrated her. When she objected he withdrew only to place his sex organ in her mouth.

There was a second encounter in 2019, while the child was again at play in the old car.

In the decision handed down by the Appeal Court last week, the judges, in making it clear that “neither incident of having sexual intercourse with the complainant is directly relevant to this appeal”, ruled that the sentence of 15 years’ imprisonment for grievous sexual assault for the minor be set aside and a sentence of 17 months’ imprisonment substituted. He will become eligible for parole after serving 11 months’ imprisonment. The Appeal Court judges said the sentence is to be treated as having commenced on March 8, 2023, the date on which it was imposed.

The minor had been convicted in the Manchester Circuit Court following a trial by judge and jury between September 29 and October 11, 2022 for grievous sexual assault and two counts of having sexual intercourse with a person under 16 years.

In March 2023 the trial judge sentenced the then 17-year-old to 15 years’ imprisonment with eligibility for parole after 10 years for the offence of grievous sexual assault and concurrent terms of 11 months’ imprisonment for having sexual intercourse with a person under 16 years. It was also specified that he should serve the sentences at a juvenile correctional facility until he was 18.

However, at the same time, the sentencing judge, with respect to the sentence for grievous sexual assault, issued the certificate pursuant to section 42(K) of the Criminal Justice (Administration) (Amendment) Act, 2015 on the basis that, in her opinion, the “prescribed minimum sentence was manifestly excessive and unjust in the circumstances”.

According to the sentencing judge, she would have imposed, instead, a sentence of 17 months’ imprisonment with parole eligibility after 11 months, given the mitigating factors which, she said, far outweighed the aggravating ones.

She highlighted, as mitigating circumstances, that the appellant was a child up to the date of sentencing; may have been immature at the time the offences were committed; had a favourable community report [he was quiet, mannerly and not viewed as a threat to the community]; had lost his mother at the age of 14 years; did not have the benefit of guidance by his father; and was employed since he was 16 years old.

She also considered that the appellant’s grandmother had begged for leniency; the complainant did not wish to see the appellant go to prison; the community had asked for a non-custodial sentence; and the aftercare officer was of the view that the appellant could benefit from counselling.

She noted that the appellant requested that his conviction not be recorded, as this would negatively impact his ambition of becoming an international chef. She also observed that there was no gratuitous violence in relation to the offences, and the appellant had no history of offending.

Based on the section, “where a defendant has been tried and convicted of an offence that is punishable by a prescribed minimum penalty and the court determines that, having regard to the circumstances of the particular case, it would be manifestly excessive and unjust to sentence the defendant to the prescribed minimum penalty for which the offence is punishable, the court shall:

(a) sentence the defendant to the prescribed minimum penalty; and (b) issue to the defendant a certificate so as to allow the defendant to seek leave to appeal to a judge of the Court of Appeal against his sentence”.

It further says that where a certificate has been issued by the court under the relevant section and the judge of the Court of Appeal agrees with the decision of the court and determines that there are compelling reasons that would render it manifestly excessive and unjust to sentence the defendant to the prescribed minimum penalty, the judge of the Court of Appeal may:

(a) impose on the defendant a sentence that is below the prescribed minimum penalty; and

(b) notwithstanding the provisions of the Parole Act, specify the period, not being less than two-thirds of the sentence imposed by him, which the defendant shall serve before becoming eligible for parole.

Lawyers for the convicted boy, following his sentencing in March 2023, applied for permission to appeal and were granted leave in November 2023 to appeal his sentence for grievous sexual assault based on the section 42(K) certificate.

His sole ground of appeal was that the sentence of 15 years’ imprisonment for the offence of grievous sexual assault is manifestly excessive in all the circumstances.

The judges of the appeal, in handing down their decision on October 15, noted that had the offence been prosecuted in the parish court, the maximum penalty would have been three years’ imprisonment. Furthermore, they said, there is legislative support in this jurisdiction for treating child offenders distinctly and less severely than adults.

According to the judges, they accepted “that the appellant, being only 13 years old at the time of the offence, made it unlikely, without more, that he would have had previous convictions or a history of offending”.

“The court acknowledges the seriousness of the offence, especially in cases involving sexual offences against children. However, in this case, the offender is also young and vulnerable. Therefore, the focus of sentencing should be on the appellant’s vulnerability, and the potential negative impact that a lengthy prison sentence could have on him,” the Appeal Court judges said.

They noted that “while punishment is necessary, the primary objective should be rehabilitation with a view to preventing future offences”.

“The authorities have shown a reluctance to imprison very young offenders for extended periods, emphasising the importance of rehabilitation in such cases… these matters were not lost on the learned judge… We agree with her that the appellant’s age, along with the other mitigating factors, constitute compelling circumstances that would render the prescribed minimum penalty manifestly excessive and unjust,” the judges said further.

“As the learned judge found, the mitigating factors far outweigh the aggravating ones. In the result, and consistent with the recommendation of the learned judge, we believe that an appropriate sentence would be 17 months’ imprisonment, after giving full credit for time spent on pre-trial remand. The appellant should serve 11 months’ imprisonment before he is eligible for parole,” the court said.