CRIMINAL CASE NO. 105 OF 2011
Those pleas are acceptable to the prosecution and to this court as a result of which Count 1 has been marked not to be proceeded with without the leave of this court or the Court of Appeal.
There is a history to this matter which I should briefly refer to. The allegations arose out of an incident which took place more than three years ago, on 5 August 2008.
At his first trial, on 16 June 2009, the defendant was found guilty of rape and theft and sentenced to 6 years’ imprisonment in respect of the rape count and 6 months consecutive to that sentence for the theft count, making 6½ years’ imprisonment in total.
On 11 April 2011 the defendant appealed against his convictions before the Court of Appeal who allowed his appeal and ordered a retrial.
The principal ground of that appeal on which the appeal was allowed was that an alternative verdict of indecent assault, which was plainly on the evidence a verdict which would have been open to the jury, was not left to them by the learned deputy judge at the first trial.
The retrial ordered by the Court of Appeal has now come before me with the addition on the amended indictment, as I have explained, of a further count of indecent assault, namely, Count 3. It is to that count, in conjunction with the original theft count that the defendant has pleaded guilty.
This was a serious indecent assault, compounded by an unpleasant sting in the tail when the defendant stole the victim’s wallet and relieved her of $600.
It was serious because the complainant had made it clear from the outset where she and the defendant both stood since they were no longer boyfriend and girlfriend. However, the defendant persisted in fondling the complainant’s body and breasts and removing her upper garment and brassier without her consent. She also protested when he removed her trousers and underpants and touched her private parts.
Her lower garments, having been removed, the complainant suddenly felt a hard object inserted into her vagina which caused her great pain. Nevertheless, I will proceed on the basis that that object was not the defendant’s penis but his finger or fingers, as has been put in mitigation by Mr Loughran.
The Court of Appeal had, in fact, referred to a certain lack of specificity as to the nature of the offence in the content of the complainant’s subsequent complaints to various people; and to the evidence of the pathologist who had conceded in cross-examination at the first trial that the insertion of two or three fingers could cause a similar injury to that observed in her private parts and that he could not exclude the possibility of a knuckle causing such injury.
Mr Loughran also refers to the fact that after the complainant had asked the defendant to desist he did, in fact, stop and his assault ceased. The Court of Appeal again referred to the complainant’s evidence at the first trial which was to the effect that when she told the applicant not to do it to her, he replied, “If you don’t want it, I won’t do it.”
This offence does not involve a breach of trust, nor was the victim a young person. Accordingly, there are few sentencing guidelines for this particular type of indecent assault.
There were some injuries to the victim but these were, as Mr Loughran characterises them, minimal and it is clear from paragraph 21 of the Summary of Facts that she herself did not appreciate that she had, in fact, been injured during the assault.
In my judgment the starting point for this indecent assault, given the background and relationship between the parties as well as the nature of the assault itself, should be one of 2½ years’ imprisonment. The starting point in respect of the theft count will be 6 months’ imprisonment.
Whilst it is true that the theft offence took place on the same occasion as the indecent assault, it was a separate and distinct offence and compounded the affront to the victim in a rather nasty and sneaky way.
Besides, the defendant has a bad record for offences of theft which suggests to me that he has a particular problem with other people’s property.
I would not be prepared to make any part of the sentence on the theft count concurrent with the sentence on the indecent assault.
Accordingly after trial in respect of both of the offences to which the defendant has pleaded guilty I would have passed an overall sentence of 3 years’ imprisonment.
The question now is what discount is the defendant entitled to for his pleas before this court upon a retrial?
Mr Loughran would say that the defendant has now pleaded guilty to an offence which was not placed before the jury at his first trial. Accordingly, he lost at that trial the opportunity of being convicted of the lesser offence.
Miss Ng for the prosecution would point out that the defendant did not enter any alternative plea at his first trial and although he did not give evidence he appeared to deny that any offence had been committed. Accordingly, these are pleas, she would say, not entered at the first available opportunity.
It is a matter for me in the exercise of my discretion, weighing up the various factors, as to what the discount should be at this retrial in the circumstances that are before me.
On the one hand justice must be done to the victim; on the other, Mr Loughran has made a sound and realistic plea that given the history of this matter over the past three years, all parties, including the defendant, should be allowed to move on with their lives.
Weighing these various considerations in mind I have come to the conclusion that the appropriate discount in this case should be 25 per cent, which will reduce the overall sentence of 3 years’ imprisonment to one of 27 months.
I shall achieve that figure without recourse to half months by passing a sentence of 24 months’ imprisonment on Count 3 and 3 months’ consecutive on Count 2, making 27 months in all.