Magistrate considers basis of plea, victim impact statement
After pleading guilty to indecent assault, Fernando Sellapperumage Indikaa was sentenced last week to 14 days imprisonment, suspended for one year, and ordered to pay $1,130 compensation to the victim.
Magistrate Kirsty-Ann Gunn said the indecent act itself – unwanted kissing of the face, neck and upper chest – would warrant a community-based sentence. But the use of force, which caused bruising to the young woman and the tearing of her clothes, made the offence punishable by custody.
Defence attorney Paul Murphy had cited his client’s previous good character and early plea as reasons for the sentence to be a fine.
The defendant, who was referred to as Mr. Fernando throughout his court appearances, was charged as the result of an incident that occurred on 4 January this year. His attorney submitted his account of what had happened and the Crown accepted it. On that basis of plea, he formally pleaded guilty.
Sentencing took some time because the court required someone who spoke the language of Sri Lanka to serve as an interpreter.
The magistrate summed up that basis of plea and then went on to consider a victim impact statement.
She said the victim/complainant was moving luggage from her car to her apartment at Treasure Island. Fernando approached and offered assistance. Although she was reluctant to accept, Fernando nevertheless carried up her luggage, as he did not understand her due to his limited understanding of the English language. “At this stage the defendant was acting in good faith,” the magistrate noted from the basis of plea. Once inside the apartment, he asked for and was given a glass of water. It was after this that Fernando kissed the young woman to the left and right cheek, “as this was customary in his home country of Sri Lanka.”
According to his basis of plea, the woman misunderstood his intentions and pushed him away. He in turn pushed her back in a spontaneous reaction. There was some pushing and shoving between the parties, during which her clothing was damaged and she received what the defence referred to as minor bruising to her upper right arm. During the struggle, Fernando kissed her face, neck and upper chest.
The magistrate referred to a social inquiry report in which Fernando said that when the woman pushed him away it took him by surprise and as he was trying to get his balance he could have grabbed her. He ran because he was frightened by her screams.
Mr. Murphy said he did not place any reliance on such discrepancies, given the translation difficulties the court had seen. He urged the court to accept Fernando’s expressions of remorse and willingness to pay compensation.
He told the court that Fernando and his wife had worked in Cayman as graphic designers and sent money home to support their families. He described his client as church-going, talented, a loving husband and committed employee.
He said the assault occurred in the context of Fernando learning that he and his wife had been made redundant. He was walking through Treasure Island intending to have a drink at the bar. That also was out of character for him, Mr. Murphy said. It was on his way to the bar that he extended his help to the woman.
The magistrate thanked him for his submissions on sentencing, especially regarding the 2007 United Kingdom guidelines on sexual offending. The less serious illegal behaviour involved contact between parts of the offender’s body other than the genitalia with parts of the victim’s body other than the genitalia. In this category, where the victim is age 13 or over, a non-custodial sentence is appropriate for a first offender, she observed.
In this case there were significant aggravating features, the magistrate said. Fernando was a stranger to the woman and the offence occurred in her apartment, somewhere she should be able to consider a place of safety. Beyond the injury and damaged clothing, she reported she was so mortified and anxious after the incident that she did not leave the apartment for several days.
She was fearful he would come back, once she was advised he had been released on bail. She had concerns about living alone and subsequently moved from the apartment. The effect the incident had on the woman could not be considered disproportionate or unreasonable, the magistrate said.
“All persons, in particular females, deserve to live their lives free from fear or threat of sexual assault,” she declared, and the public’s condemnation of such an offence should be properly reflected in the sentence.
In his acceptance of wrong-doing, Fernando had spared the woman the added distress of having to give evidence, and he deserved credit for his cooperation. He had numerous letters of reference and his wife had remained by his side, supportive of him, the magistrate summarised.
His wife, like the court, wondered why the offence had occurred. Mr. Murphy had called it “a moment of madness” with serious repercussions. Fernando and his wife had not been working and had to live on their savings while this matter was before the court. They had about US$5,000 left and each ticket back to Sri Lanka would cost US$3,000.
The magistrate said the sentence for a first offence of this kind would be six weeks imprisonment after trial. Given Fernando’s guilty plea and cooperation, the sentence was reduced to four weeks. Further credit was given for his community work since the offence and the restrictions on his liberty while awaiting resolution of the case, so the sentence was 14 days.
However, the court had received documents showing that Fernando’s father was seriously ill back home. Given that extenuating circumstance, the magistrate suspended the sentence for one year. The compensation was ordered for damage to clothing and loss of earnings. The money was to be paid to the woman through the court office before the defendant left the Island or within one month of the sentence, whichever was sooner.
The magistrate said Fernando’s status on the Island was a matter between him and Immigration.