R v J.E (CR 36/2019) [2020] SCSC 113 (14 February 2020);

Flynote: 
Headnote and Holding: 

Criminal law: Sentenicng: Two counts of sexual assault (penetration): one of K. H, an eight-year-old girl, one of A. H. a seven-year-old girl conviction on guilty plea – sentence of 15 years on first count to run concurrently with entice of 12 years on second count – compensation order.

Legislation considered: 

TWOMEY CJ

[1]            The convict was charged with two counts of sexual assault contrary to section 130 (1) as read with sections 130 (2) (d) and punishable under section 130(1) as read with section 130(4) (b) of the Penal Code.

[2]            The particulars of the offences are that, the accused on a date unknown, in the month of June 2019, at his residence in Mont Buxton Mahe, sexually assaulted his step granddaughter, namely K.H., a minor girl of 8 years old, by penetrating her body orifice, namely the vagina of the said K.H with his penis for a sexual purpose; and that while he was living at Mont Buxton, Mahe, on a date unknown in 2019, he sexually assaulted his step granddaughter namely A. H., a minor girl of seven years, by penetrating the body orifice, namely the vagina of the said A.H. with his finger for a sexual purpose. 

[3]            Having initially been charged on five counts of sexual assault and the accused having pleaded not guilty to all the charges, the charge sheet was amended subsequently to maintain the two above counts only, to which counts the accused pleaded guilty.

[4]            The facts of the offence were outlined by Counsel for the Republic and were accepted by the convict. The convict sexually assaulted the eight-year-old complainant by penetrating her vagina with his penis. The last time this happened was on 7 July 2019 when the incident was caught on camera, the video footage of which was made available to the court. On examination by Dr. Taimi Velazquez it was found that the complainant’s hymen was not intact and that the vaginal areas were irritable with streaks of blood.

[5]            The seven-year-old complainant was also examined and her hymen found not be intact. She reported that she had been sexually assaulted in her grandmother’s house by the convict where she went to watch cartoons.  The complainants were given money and sweets by the convict.

[6]            The convict was thrown out of the complainant’s grandmother’s house and went to Pointe au Sel but fled from there when the Child Protection Unit went to arrest him. He was subsequently arrested on 13 July2019 on a secondary road at Pointe au Sel.

[7]            A Probation Report was requested to assist the court in its sentencing duty and the same was provided by the Probation Office. In that report, the convict, a sixty-three-year-old, was in a relationship with the children’s grandmother. The children live nearby and would visit their grandmother every day and sometimes spend the night there. He states that he cannot recall how many times he assaulted the complainants but that his actions lay heavy on his heart. He pleads for forgiveness from the complainants and their family and has begged the court for leniency.

[8]            The victim impact report is harrowing to say the least. The children in this case are bed wetting, having nightmares and displaying post-traumatic stress symptoms. A psychologist has had to intervene. They have been bullied in school and have been the subject of negative comment on social media. The children’s mother is a single parent and has expressed her feelings of revulsion towards the convict, a man in which she had trust. She states that she is overwhelmed by what has happened to her children and is also seeking the help of a psychologist. She finds it hard to obtain employment because of the many appointments she has to attend with her children. She states that the accused has stolen her children’s innocence and has scarred them and that they will be haunted for the rest of their lives. She however expressed her gratitude for the fact that the children have been spared the trauma of a trial.

[9]            Counsel for the convict requested for a medical report in relation to the convict. The report reveals that the convict was sexually aroused during the acts with the children but that he did not report any previous or recurrent urges or behaviours with young prepubescent children and that he expressed remorse and stated that his actions were wrong. Generally, the psychiatrist found the convict to be cognitively intact and that he did not meet all the criteria of a diagnosis of paedophilia to be made. The report also states that the convict has hypertension and has urinary difficulties necessitating the insertion of a catheter. He also awaits results of a biopsy of the prostate gland.

[10]         Learned Counsel for the accused has also submitted in mitigation that the report confirms that the convict is not a paedophile and leniency ought to be exercised by the court with regard to the convict as he had admitted the offence and shown remorse. He had also spared the complainants the trauma of a court case and had also saved the court’s time.

[11]         The offences involve full penetration of the vagina and pursuant to section 130 (4) (b) and pursuant to the proviso of section 130(1) of the Penal Code carries a sentence of not less than 14 years and not more than 20 years.  

[12]         The Court notes the frequency with which such charges are being brought, perhaps an indicator of some men being socialised into being predators of young children. As this court has stated before young children are falling victim to these appalling crimes committed in their homes where they would feel the least danger under the protection of family members.

[13]         The revulsion, fear and disgust of the community in this regard cannot be underestimated. Rapists are a curse onto our society and our children need to be protected from their acts. The specific provisions of the Penal Code relating to such offences need to be applied by the courts in the way it was intended. 

[14]         In Rene v R SCCA 37 (14 December 2018) a sentence of 12 years for a similar offence on a fifteen-year-old was upheld. In G. K v R Criminal Appeal [2017] SCCA 3 (21 April 2017) Domah JA stated:

“We wish to make the following comment though. The irreparable harm done to vulnerable children and persons by paedophiles is today well documented. Public sensitization on the matter is well spread. Yet with three cases having come to the Court of Appeal in course of this session, we wonder whether the campaign against such reprehensible and degenerate behaviour should be more robust. The legislature has provided for a sentence of 20 years in cases of sexual assault. We may not stay insensitive to the call of the day in this area of criminal law.  Accused persons convicted of such offences shall not expect leniency from the Court of Appeal or any other Court for that matter.

 

[15]         As I stated in R v D.S. (CR 50/2018) [2019] SCSC 55 (04 January 2019), there are trends of 7 or 8 years sentences for such offences (see for example R v Crispin CR 58/2008, EC v R ([2016] SCSC 788 (29 September 2016), R v D.R .(CR50/2014) [2018] SCSC 185 (22 February 2018), Eddie Servina v Rep, CR App 3/17). Such sentences are simply not strict sentences to reflect the gravity of such offences and the specific indicative sentences of the Penal Code. In my view such light sentences do nothing more than to accentuate such degenerate behaviour, perpetuate the suffering of victims and perniciously normalise such deviant behaviour in an already very dysfunctional society.  

[16]         In FM v R (Criminal Appeal SCA 29/2018) [2019] SCCA 28 (23 August 2019), the Appellant was related through marriage to the victim, and often came to the family home. The Court held that a factor which it should take into account was the position of trust held by the offender (Simon v R [1980] SCAR 557) and that the protection of vulnerable members of society and the welfare of children are factors which must guide the court in sentencing sexual offenders (R v Albert SSC 30/1999, 17 November 1999). Similarly, in this case the convict was the step grandfather of the children, a man they called Tonton, and in whom they had complete trust. I watched the video footage submitted and it left little to the imagination. I was sickened by what I saw. The children’s mother is right -  the convict has stolen their childhood and scarred them for life.

[17]         Given the seriousness of the assaults on the two young child, I feel a severe sentence ought to be imposed. Had this trial on a guilty plea been pursued and the accused found guilty this court would have considered the imposition of a twenty-year sentence. The Seychelles courts want a very strong message to go out - we are horrified, disgusted and outraged by sex offences especially those perpetuated on our country’s young children. The only real mitigating factor in this case is the convict’s guilty plea which I take into account.

[18]         I therefore sentence the convict to twelve years’ imprisonment on the first count and ten years on the second count. The sentences are to run concurrently. The time spent on remand shall form part of this sentence.

 

[19]         The convict is entitled to remission and has the right of appeal against both conviction and sentence within thirty working days of this order.

 

Signed, dated and delivered at Ile du Port on 14 February 2020.

 

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Twomey CJ