Judge says 10 years appropriate
A man who denied sexually assaulting his stepdaughter was found guilty after trial by judge alone.
Justice Carol Beswick said she considered the appropriate sentence to be 10 years, but took into account the time he had been in custody. She then imposed a term of nine years for attempted rape and five years for indecent assault to run concurrently.
No details are being reported that would lead to identification of the girl and Justice Beswick agreed to Crown Counsel Alister Cumming’s request for publication on this basis.
The Legal Department has previously indicated its stance: the public should know that reports of assaults on children are treated seriously and pursued by both police and Crown Counsel.
In this case, the man had known the girl since her pre-school years. The incident complained of occurred when she was not yet a teenager.
Both the girl and her mother gave evidence, explaining that the incident took place after the mother left for work.
The judge emphasised that the girl’s complaint was not evidence of what occurred.
The girl said she was asleep in her own bed when she awoke with the man on top of her. She said he used his finger and tongue to touch her private parts.
Her evidence was that he then pushed his penis ‘a little bit’ into her. On cross-examination by Defence Attorney Ben Tonner, she said he ‘tried’ to put it in.
The girl was examined by a doctor about four hours after the incident. The doctor’s evidence was that the girl’s hymen was not intact; the most common cause of this is sexual intercourse. Further internal examination was not possible because of soreness and tenderness, which the doctor attributed to recent trauma.
Reviewing other evidence, the judge noted that no male DNA was detected on a vaginal swab from the girl. A penile swab from the man matched his DNA and the girl could not be excluded from the DNA profile
During his trial the man not only denied the charges against him but also gave evidence that the girl had come into his bed and sat on top of him while he was asleep. He said she was not wearing any clothes and any intimate contact as he pushed her off was accidental.
He also told the court the girl said she had been with other men and knew what to do. He alleged that the charges against him were a concoction by his wife and her daughter.
Justice Beswick found that the man was not speaking the truth about the incident, but reminded herself that he did not need to prove anything.
The judge said she did not believe the girl and her mother had concocted any story. The girl’s evidence had not been shaken. The mother had appeared truthful and anxious: ‘I do not allow her distress and emotion to influence my decision.’
In returning a verdict of guilty with regard to indecent assault, the judge said she was satisfied the man did intentionally touch the girl without her consent in a way that caused her to apprehend immediate violence and in a way capable of being considered by right-minded persons as being indecent.
She then considered the charge of rape, which is unlawful sexual intercourse. Based on the evidence of the girl and the doctor, she said she could not be sure that penetration had taken place.
However, she was sure that the man’s actions were more than mere preparation for rape. She was satisfied so that she was sure that he had attempted rape.
‘In determining what sentence is appropriate I consider whether there are aggravating features,’ Justice Beswick said.
Advised of a recent ruling by the Court of Appeal (Caymanian Compass, 31 December) the judge listed aspects of the offences in this case.
The victim was of tender age; as a stepdaughter she should have expected to be nurtured by him and would have trusted him; living with him, she would have expected to be protected from harm; the offences occurred within the sanctity of her home; the attempted rape was accompanied by other acts of indecency.
Some aggravating features were not present: no weapon was used; the incident was of relatively short duration; there were no obvious residual physical injuries.
The maximum sentence for attempted rape is 14 years; the maximum for indecent assault is 10 years.