The Queen Claimant v Johnny Anthony AKA "Sammy" for (1) Unnatural Carnal Knowledge (2) IndecencyDefendant Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Edwards J |
| Judgment Date | 07 July 2004 |
| Judgment citation (vLex) | [2004] ECSC J0707-2 |
| Court | High Court (Saint Vincent) |
| Docket Number | CASE NO. 11/2004 |
| Date | 07 July 2004 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Criminal)
CASE NO. 11/2004
The accused Johnny Anthony was 18 years old on the 12th February 2004.
On the 8th June 2004, he pleaded guilty to the 2 Counts on the Indictment, charging him with Unnatural Carnal Knowledge and Indecency.
I heard the facts and Mitigation submissions from his Counsel Mr. Stephen on the 30th June 2004.
I also have before me the Social Inquiry Report for the accused and a Psychiatric Report from Dr. S. Srikumarun who also testified on the accused's behalf.
On Thursday 20th November 2003 after 3:00 p.m., 9 years old Roneal Popo accompanied the accused who is his cousin to the garden at Plateau Babonneau to untie goats and place them in cages.
In the course of accomplishing their mission, the accused lured Roneal inside a shed, pulled down his pants, inserted his penis into Roneal's anus, and buggered him.
After completing this act, the accused told Roneal not to tell anyone about what had just happened.
Upon returning home, Roneal later had difficulty easing his bowels. He told his mother and sister what accused had done to him.
Roneal's parents promptly made a report to the Police and took Roneal to the Victoria Hospital.
Dr. Cherida Seymour examined Roneal's body and particularly his anus at about 10:57 p.m. that night. She found no abrasions or lacerations on his body. She found that the surrounding tissue of his perianal region was mildly excoriated and erythematic. She found no visible discharge, tears or lacerations. The area was not tender to palpation.
The doctor's impression according to the allegations was that there was physical assault with evidence of sexual manipulation.
Roneal received medication and was sent home.
On the 22nd November 2003, Roneal was treated at the Hospital, for complaints of vomiting, insomnia and anorexia for 2 days. Dr. Gilford diagnosed Roneal to be suffering from post traumatic alleged assault symptoms. Roneal received further treatment and was discharged. The doctor advised Roneal's father to ensure a follow-up with a Social Worker.
Article 242 of the Criminal Code provides an indeterminate sentence of life imprisonment for Buggery.
Article 112A states that a conviction on indictment for indecency with a child under 14 years old attracts a penalty of imprisonment for 2 years.
Article 1284 states that "Unless otherwise expressly provided, a Court may sentence any offender to any less punishment …than that prescribed".
Our Court of Appeal established guidelines for Sentencing in Rape and Unlawful Carnal Knowledge Cases in its decisions inWinston Joseph -vs-The Queen Criminal Appeal No. 4 of 2000 and Benedict Charles -vs-The Queen, Criminal Appeal No. 7 of 2000 delivered 31st October 2001.
No decision from our jurisdiction, or from our Court of Appeal, establishing guidelines on Sentencing in Buggery Cases were brought to my attention.
I shall therefore have to consider the extent to which I can apply the guidelines established in theWinston Joseph and Benedict Charles cases to the present case.
I will also consider the decided English Cases relating to Sentencing in Buggery Cases and the guidelines established by them. I must however, bear in mind the legal and social context within which some of the pronouncements in these cases have been made, having regard to the differences between our law and the English Law. The English Law permits homosexual acts between consenting males in some circumstances. The Law of St. Lucia criminalizes all of such conduct.
In Winston Joseph and Benedict Charles cases the Court of Appeal pronounced the following guide lines to establish uniformity in the principles which a Judge should apply in determining what sentence to impose in Unlawful Carnal Knowledge Cases.
The severity of the punishment depends on the age of the Virtual Complaint and the aggravating and Mitigating factors present.
The aggravating factors may include the violence used, apart from any force used to commit the offence, the age of the virtual complainant, whether pregnancy has resulted from the crime, any perverted acts of anal or oral sex used by the accused, whether the offence has caused physical or psychological injury to the Virtual Complainant, whether the offence was frequently repeated, and any previous convictions for similar offences.
Other aggravating features may be the fact that the accused was an authority figure in authority over the Virtual Complainant i.e. step father family friend, relative or teacher. The age of the accused where he is 28 years and upward and any abuse of trust are also aggravating features.
The mitigating factors may include the accused's guilty plea evidencing contrition, the age of the accused where he is under 22 years and is a first offender, any evidence that the Virtual Complainant was a willing participant and or seduced the accused.
The fact that buggery is an unnatural offence may be in itself revulsive given the norms of our society. This was recognized by Lawton L.J. inR -vs-Willis [1974] 60 Cr App. R. 146.
Lawton L.J acknowledged that "one of the difficulties which Judges have in sentencing offenders of this type is their own reactions of revulsion to what the accused has been proved to have done. Right—thinking members of the public have the same reactions and expect the Judges in their sentences to reflect public abhorrence of homosexual acts".
Lawton L. J. also recognized that "there is a widely held opinion that homosexual offences involving boys lead to the corruption of the boys and cause them severe emotional damage".
The Social Inquiry Report and the submissions of Counsel Mr. Stephen reveal that the accused was exposed to homosexual acts from he was 7 years old for several years by his uncle who buggered him, and who is now living in Barbados. He did not inform his parents or any other family member about what his uncle was doing to him because the uncle told him not to. Mr. Stephen submitted that the accused consequently grew up, believing that such behaviour was normal.
Reflecting on similar cases of homosexual abuse, and the homosexual experiences of the accused at a young age, Lawton J. acknowledged that experienced Judges also hold the view that a boy's exposure to homosexual abuse may pre-dispose him to homosexuality, "because when considering homosexual offences…[they] are frequently told in pleas of mitigation that the accused was made a homosexual as a result of being involved when a boy in homosexual acts by a man".
InR -vs-Willis (supra) a 24 years old man committed buggery with an 8 years old boy. At his trial he pleaded guilty and admitted 7 other similar offences for indecent assault on boys of a similar age. He had 2 previous convictions for indecent assault on girls aged about 10 years. He was sentenced to 5 years imprisonment for buggery and 3 years for indecent assault with sentences to run concurrently:( [1975] l A L L E.R. 620).
On appeal it was held that:
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(i) Buggery committed with boys under the age of 16 years was a serious offence and the younger the boy the more serious the offence.
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(ii) In the absence of very strong mitigating factors the proper sentence was one which would result in immediate loss of liberty.
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(iii) The aggravating factors to be taken into account include:-
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a) Physical injury to the Virtual Complainant or use of violence in order to get the Virtual Complainant to submit to the accused's driving force of lust.
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b) Any likely emotional and psychological damage and the possibility, depending on the make up and tender age of the Virtual Complainant that the act of the accused may predispose him towards homosexuality.
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c) Moral corruption by way of enticements, in the form of money, gifts and other material comforts.
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d) Abuse of authority and trust. Accused persons in authority over boys should get severe sentences for abusing their positions in order to gratify their deviant sexual urges. This aggravating factor should attract a sentence aimed at deterring all other persons in such authority, letting them know that such abuses of trust will not be tolerated by the Courts and the society.
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e) For accused persons suffering from a mental illness, the offence of buggery should result in immediate custody.
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(iv) The Mitigating Features include:
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a) Personality disorders varying from mental immaturity in an adult to the effeminate and flaunting exhibitionist, and resentful anti social types.
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(i) The mentally immature adult who is in the transitional stage of psycho-sexual development can be helped by a sentence designed to help him grow up mentally.
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(ii) However for the effeminate, exhibitionist and antisocial types, sentences may focus on management rather than treatment. Where...
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