The Cayman Islands Court of Appeal has set out factors to be considered when persons are sentenced for rape.
There is no such thing as an ‘ordinary’ rape, declared court president Sir John Chadwick during the session that ended earlier this month. He said there might be only an absence of aggravating factors and accepted the term ‘typical’.
Sir John, Justice Ian Forte and Justice Elliott Mottley heard from attorneys seeking to appeal sentences for rape on behalf of Craig Damian Dilbert, who received 15 years, and Christopher Omar Samuels, 12 years. Neither sentence was reduced.
The judges said the appeals raised a common question of some importance – what effect, if any, should English guidelines have on Cayman tariffs?
They issued a combined judgment and elaborated on aggravating factors that affect sentences for rape.
In 2002, the judges noted, the Grand Court announced: ‘For rape, which has become alarmingly prevalent, an offender can expect a tariff of between 10 and 12 years imprisonment.’
That was a modest increase of the 10 years announced in 1998 and ‘may be seen as a response to the view that, between 1998 and 2002, rape had become increasingly (and alarmingly) prevalent in the Cayman Islands,’ the judges said.
Attorneys Lee Freeman and Nicholas Dixey mentioned sentencing guidelines from the UK. But the Court of Appeal said the UK starting points of five and eight years have no direct application here. Those responsible for Cayman sentencing tariffs ‘may be taken to have had proper regard for what circumstances local to these islands required.’
A tariff means a sentence to be applied in a typical case, the court agreed. A tariff of between 10 and 12 years recognises that ‘typical’ cases will differ even when there are no special features.
Mitigating factors may reduce a sentence below the relevant starting point. The most significant mitigating factor in a rape case is an early guilty plea because it avoids the need for the victim to give evidence in open court.
The Cayman court quoted a UK judgment: The first reason why courts adopt this approach is because it is well known that victims of rape can find it an extremely distressing experience to give evidence in open court about what has happened to them, even where their identity is protected.
‘Having to give evidence and especially being cross-examined can make a victim relive the offence. We have seen many victim impact statements that make this clear. Obviously the distress which is avoided is greater the earlier the victim is informed, so the discount should be reduced if there is not an early plea.
‘There is also the fact that the plea demonstrates that the offender appreciates how wrong his conduct was and regrets it.’
The court added that saving the time and expense of a trial was less important than those two factors. The defendant’s previous good character does not justify a substantial reduction in sentence.
The Cayman court accepted two lists of aggravating factors from UK sources, but said these references were not exclusive.
One aggravating factor the judges emphasised was the breaking into or otherwise gaining access to the place where the victim is living.
‘It is a feature which is alarmingly prevalent in rape cases in these Islands. It is particularly serious in a case where the offender has broken into the victim’s dwelling at night. It should be treated, in these islands, as an aggravating factor warranting a sentence which is substantially in excess of the 10-to-12-year tariff.’
Other aggravating factors are: the use of violence over and above the force necessary to commit the rape; use of a weapon; the rape is repeated; the victim is subjected to further sexual indignities or perversions; the victim is either very young or very old; an especially serious physical or mental effect on the victim.
Aggravating factors also include: the careful planning of the rape; covert use of a drug to overcome resistance or obliterate memory; the presence of children when the rape is committed; previous convictions for offences of a violent or sexual kind; a history of sexual assaults or violence by the offender against the victim.
Craig Dilbert was convicted after trial by jury (Caymanian Compass, 24 January 2008). He did not pursue an appeal against his conviction, but his attorney argued that the judge used too high a starting point in imposing sentence.
The appeal judges listed all the aggravating features, including excessive violence, degradation and mental anguish.
They emphasised: ‘We consider that the fact that Dilbert broke into the complainant’s house at night to be a significant aggravating factor which in itself warrants a substantial increase in sentence over that recommended in the 2002 Statement.’
They added, ‘Women in the Cayman Islands must be protected from such vicious assaults at night in their homes. They are entitled to go to sleep knowing they are safe in their homes.’
Christopher Samuels pleaded guilty in 2009 to a rape that occurred in 2002 when he followed a tourist into a women’s restroom on the property of a West Bay Road hotel (Compass, 2 July 2009).
The court cited the sentencing judge’s reasons for imposing 12 years. He had noted that Samuels faced a relatively strong case since his DNA matched samples taken from the victim. The discount for a guilty plea would therefore not be as large as it might be in other situations.
The judge also considered the use of a knife and threats to kill. The Court of Appeal noted other factors, including the degradation of the victim and the serious physical and mental effect on the victim.
For both Dilbert and Samuels, the court could not say the sentence was manifestly excessive.
The maximum penalty for rape is life imprisonment.