Five years imprisonment was not an excessive sentence in the case of defilement before judges of the Court of Appeal this week.
Dwight ‘Keith’ Plummer had his appeal against conviction dismissed and his sentence affirmed after arguments on Tuesday.
Plummer, 30, received the five-year term in August after a jury found him guilty on two charges of defilement and two charges of taking a girl under 16 from lawful care (Caymanian Compass x July). The charges arose from incidents in early 2005.
The judges heard submissions from Defence Attorney Menelik Miller and they invited Crown Counsel Gail Johnson to comment only on sentencing.
Mr. Miller and Ms Johnson agreed that the maximum sentence for defilement of a girl under 16 used to be seven years.
The Legislative Assembly changed the maximum in 2001: when the girl concerned is under 12, the maximum is 20 years; when the girl is between 12 and 16, the maximum is 12 years.
In 2002, Chief Justice Anthony Smellie announced guidelines that set a tariff of five years when there are no circumstances that aggravate or mitigate the offence.
Court of Appeal President Mr. Justice Edward Zacca said the sentencing judge in Plummer’s case had considered all possible factors, including the defendant’s previous good character and the impact of a conviction on his career, family and status on the island.
‘We cannot say that the judge has wrongly exercised his discretion in arriving at five years,’ he said.
Mr. Justice Martin Taylor and Mr. Justice Ian Forte heard the appeal with the president.
One ground of appeal against conviction was what Mr. Miller called intervention by the trial judge that amounted to the judge getting involved as an advocate for the prosecution, to the prejudice of the defendant.
He read from a transcript of the trial to give examples of questions the judge asked of witnesses, including the defendant. The appeal judges responded by also referring to the transcript and context of the various questions.
Mr. Justice Forte said judges have a duty to understand the case before them, so it is necessary that they ask questions to make things clear in their own mind.
Mr. Justice Taylor pointed out that questions framed in the negative can be confusing, as when the complainant was asked if she was never alone with the defendant. The judge is bound to clear up the ambiguity of a yes or no answer because it is confusing, he said.
Mr. Miller submitted that when the judge repeated a question or asked questions out of sequence, he was conveying his own disbelief.
Mr. Justice Zacca said the judge in his summing up had told the jurors more than once that the facts were for them to decide.
The second ground of appeal was the amendment of the indictment at the close of the Crown’s case. The judge had allowed the date of the alleged offence to be changed, which extended the time frame during which the second offence allegedly occurred.
Mr. Justice Zacca said the indictment could be amended at any time. The question was whether it prejudiced the defendant. In this case, it did not.