The Appeals Court last Friday refused to quash the conviction of a former nightclub bouncer who was sentenced to 16 years behind bars for the grevious sexual assault and sexual touching of a 13-year-old student in 2012.

However, the court reduced his sentence by three years and three months after it found that his constitutional rights were breached by the 13 years it took to hear and settle the case.

According to the court, “the primary reasons for the delay, at all levels, originated from systemic problems within the judicial organ of the State, which must be weighed against the interests of the State”.

Noting that, “the delay in disposing of the case against the appellant is more attributable to the State than to the appellant,” the court said the delay had “caused some prejudice” to the man and as such, it was “satisfied” that he was “entitled to a remedy for the breach of the reasonable time requirement”.

The man, who was 30 years old at the time of the offence, was convicted in the St Catherine Circuit Court in November 2018, after a trial lasting several days before a judge and jury. The former bouncer was charged on an indictment containing two counts of sexual touching of a child, and two counts of grievous sexual assault.

On December 18, 2018, he was sentenced to five years’ imprisonment at hard labour for each count of sexual touching of a child and 16 years’ on each count of grievous sexual assault, with the stipulation that he serve 10 years’ imprisonment before being eligible for parole on these latter counts. The judge ordered the sentences to run concurrently.

Dissatisfied with the conviction and sentence, the man appealed, questioning, among other things, whether the sentence imposed by the judge was manifestly excessive and whether his constitutional right to a fair hearing within a reasonable time and his right to liberty were breached due to delay, and whether he was entitled to remedies if this was so.

According to the facts unveiled during the trial relating to the sexual touching charges, sometime in November 2011 the child visited her friend, who is the sister of the then bouncer, at a well-known middle-class housing development in St Catherine. She said she had just left a room where she spoke to her friend and was in the living room when the man fondled her breast and her bottom.

She said on another occasion in December that same year she was again at the house when he lifted her, placed her legs around his waist, felt, squeezed and touched her bottom and told her he liked her shape and how she looked.

In January 2012 the child again went to her friend’s house and saw the man on the lawn and asked him if her friend was inside. She said upon being told ‘yes’ she went inside only to realise no one was there. She said she was about to leave her friend’s bedroom when the man entered and locked the door. The child told police that when she asked the man why he had lied about her friend being home, he said it was because he “wanted to do something” to her at which point he placed her on a sofa and penetrated her with his finger. She said he then performed oral sex on her and told her to “keep it quiet” because he was “not yet ready to have intercourse” with her.

The child reported the incidents to her mother and stepfather in April 2012 leading to his arrest and charge.

According to the testimony of the child’s mother, it was while discussing an “unfavourable school report she had received” that her daughter told her of the alleged molestations.

She said her husband, after also speaking to the child about the school report, left and returned with the man after being told of the incidents.

According to the mother, her husband, who is the child’s stepfather, then asked her, in the man’s presence, whether he was the one who touched her to which the child replied ‘yes’. Following an investigation by the police he was pointed out during an ID parade.

During trial the man denied the acts and also said he had spoken to the child on two or so occasions, the last being about the “impropriety of her attire in a short dress she was wearing at his house”.

He maintained that the child had remained mum when he asked her, in the presence of her mother and stepfather, if he had done anything to her. He also said that after overhearing something said by the child’s mother to a neighbour one morning he went to the police station and made a report. He said he was subsequently contacted and asked to return to the station at which time he was arrested and charged.

A key issue for the defence, led by attorney Isat Buchanan, was that the child only made a complaint because of her poor performance.

According to Buchanan, there was no prompt report and the first report was made to the police some six months after the alleged incident.

The Appeal Court, in making its ruling, said “the court, having considered all the grounds of appeal, concluded that the application for leave to appeal the convictions is unmeritorious [and that] the appeal against the sentences is also without merit as the sentences imposed by the learned judge for two counts of grievous sexual assault on a minor are not manifestly excessive or unjust”.

“The complainant was attired in her school uniform at the time of the commission of the offences, which would have made her minority and vulnerability even more pronounced; and the reported impact of the offences on the complainant…furthermore, the appellant committed two separate acts of assault on the young complainant, followed by an indication of his intention to have sexual intercourse with her in the future when he told her he was not yet ready to have sexual intercourse with her. He did not say he would never have sexual intercourse with her,” the court stated.

“This, as it stands, reflects what could be viewed as sexual grooming on his part, although he was never charged with that offence. It, however, compounds the gravity of his offending. The offending did not stop at a single count of grievous sexual assault but involved two separate and distinct acts. The weight of the aggravating factors would have pushed the starting point significantly above the statutory minimum…for this reason, we find that the sentences imposed by the learned judge cannot be said to be manifestly excessive and unjust to warrant a reduction,” the judges of the appeal said.

Regarding the length of the delay in the hearing and disposal of the matter, the court however relented.

“The evidence and the record of proceedings disclose that the offences were committed in 2011 and early 2012. The appellant was arrested in April 2012 and placed before the parish court immediately after. The preliminary enquiry in the parish court commenced in October 2014 and concluded in November 2014 — a period of approximately two years and six months would have elapsed since the appellant was charged.

“After the conclusion of the preliminary enquiry, the appellant was committed to stand trial in the Saint Catherine Circuit Court on 7 January 2015. However, the trial did not commence until November 2018, following the scheduling of 14 trial dates and five mention dates beforehand. This resulted in a delay of almost four years at the trial stage, making it close to seven years after the appellant’s arrest. The delay at the pre-conviction stage is indisputably inordinate,” the Appeal Court said.

Regarding his claim concerning post-conviction delay, the court said, “there is also merit”.

“Up to the disposal of the appeal, the case would have been in our justice system for 13 years since the commission of the last set of offences and when charges were laid against the appellant. The delay is inordinate,” the court declared.

“A global examination of the facts, through the lens of the authorities, leads to the conclusion that the appellant’s constitutional reasonable time guarantee was breached beyond justification by the State,” the court said.

It, however, pointed out that “it appears there is no possibility of a monetary award for the breach of the reasonable time requirement, as the appellant has not been acquitted, because the court is satisfied that there is no basis to interfere with his convictions”.

It added: “We reject the appellant’s invitation to quash the conviction as a remedy for the breach of his constitutional rights”.

The court also said, “the delay in this case has not impacted the fairness of the trial, the safety of the convictions, or the proper conduct of the review on appeal. The entire record of evidence upon which the appellant was convicted was accessible for review and has been examined by the court, with no finding that the convictions are compromised or unsafe due to the delay.

“With all that said, we believe that the appropriate remedy is to grant a reduction in the sentence of imprisonment, considering the length and reasons for the delay, as well as the actual and presumed prejudice to the appellant caused by that delay,” the court noted.

It said the five-year sentences for the offence of sexual touching being the shortest sentences imposed by the trial judge have already been served and as such, reducing those sentences would not provide a meaningful or effective remedy for the appellant.

“The court considers that the most appropriate, effective, and just remedy is to reduce the 16-year sentence for grievous sexual assault, even though this reduces the sentence below the mandatory minimum of 15 years. The constitutional imperatives and interests of justice necessitate no lesser remedy,” the Appeal Court stated.

“As a result, through constitutional redress, the sentences imposed for grievous sexual assault are reduced below the mandatory minimum to 12 years and nine months’ imprisonment with the stipulation that he serve eight years and six months before eligibility for parole. It is for the correctional authorities to decide whether the appellant is eligible for early release following the reduction in sentence. This court, therefore, refuses to accept the submission of counsel that the appellant should be immediately released by the court,” the Appeal Court said.

It said the sentences imposed for all four offences are to run concurrently and are to be treated as having commenced on December 18, 2018, the date they were imposed.