A girl of 12 is still a child, even if she is apparently eager for sexual experience, Mr. Justice Dale Sanderson stated in a defilement case last week.
Carnal knowledge of a girl under 16 is a criminal offence. The girl’s consent is not a defence.
In the case of John Gordon Ebanks, both the Prosecution and Defence agreed that the girl initiated contact.
Ebanks pleaded guilty to two counts of defilement and was sentenced to six years imprisonment. He was 36 at the time of the offences.
Background to the charges was detailed by Crown Counsel Scott Wilson. Defence Attorney John Furniss spoke on behalf of Ebanks.
It seemed that Ebanks and the girl first met at an outdoor activity. She told another person that she liked Ebanks and that person told him.
Ebanks then approached the girl and she asked him for his cell phone number. She phoned him that night.
They talked for about an hour and she disclosed her age as 12. Ebanks was shocked and said she must be joking. She invited him to come and see her and specified a place. He drove there and they met in the parking lot.
The meeting was witnessed by someone who advised the girl’s parents. The RCIP Family Support Unit was also informed.
A police officer subsequently spoke to Ebanks, confirmed the girl’s age and warned him not to have further contact with her.
The girl’s mother also had conversations with Ebanks and asked him not to see the girl.
Despite the warnings, further contact did take place, although the girl initiated it on each occasion. When the offences came to light, the girl accepted that no coercion was used.
Ebanks was arrested immediately. Asked if there had been sexual intercourse, he initially said no. He told officers he had been counselling the girl. Later he admitted that they would ‘kiss up and touch up’ but that was all.
In court, he initially pleaded not guilty to six counts, but changed his pleas on two counts the week before trial was scheduled.
Mr. Furniss asked for credit for the plea, since it spared the girl from having to give evidence in court.
The attorney said Ebanks was genuinely sorry. Initially he did try to dissuade the girl, but in the end he committed the offences.
Both the Prosecution and Defence agreed that the maximum sentence for defilement is now 12 years, but it was seven years when these offences were committed.
Mr. Justice Sanderson passed sentence on the basis that he was bound by the old tariff.
He observed that the maximum sentence is reserved for the worst offence by the worst offender.
The case before him was the worst type of offence and this was the worst type of offender, he declared.
All Ebanks had to do was say no and report the girl’s behaviour to her parents, the judge pointed out.
The most aggravating feature in the case was the difference in ages.
The second most aggravating feature was Ebanks’ record of previous convictions, most related to drugs or dishonesty. When a defendant comes before the court with 57 prior convictions, the court is generally not inclined to give a 58th chance, the judge observed. ‘The good will of the court is eaten up.’
The guilty pleas in the circumstances of this case did not attract the same sentence reduction as they would have if offered when Ebanks was first arraigned, the judge continued.
However, he did accept that the defendant was remorseful and did spare the girl the embarrassment of having to come to court.
Asked if he had anything to say, Ebanks told the court that most of his previous offences were during a period when he was involved with drugs. Since then, he had been working and trying to educate himself.
Mr. Justice Sanderson said he appreciated Ebanks’ efforts, but his own duty was to protect the public and try to deter others from committing this type of offence.
The other sentencing criterion is rehabilitation of the offender. The judge hoped Ebanks was not beyond rehabilitation.
He also noted that, if he is incorrect in his view, the Court of Appeal could correct him.
Cayman’s Penal Code, in force since 1975, has been amended 18 times.
The section dealing with defilement was most recently amended by Law 16 of 2001, enacted in July 2001. This amendment increased the sentence from seven years to 12 for defilement of a girl between the ages of 12 and 16. For offences involving girls under 12, the maximum was increased to 20 years.
Both counsellors in this case expressed the opinion that the sentence had been increased by Law 16 of 2004. But that amendment deals with common law offences.
The Penal Code (2005 Revision) lists the dates of amending legislation, but does not indicate the topics amended.
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