Court of Appeal upholds defilement sentences

Judges recommend adjusting sentencing guidelines

The Court of Appeal on Friday dismissed the appeal against sentence by two men who pleaded guilty to defilement of a girl under the age of 16.

The court affirmed the sentence of Randy Michael McLean at five years, four months. It was McLean’s second conviction for defilement and the court agreed with the sentencing judge, Justice Alexander Henderson, that this was a serious aggravating factor.

The other appellant’s sentence of four years, eight months was also upheld. It was his first conviction, but the court agreed with Justice Charles Quin’s sentencing remarks that this offense was aggravated because the defendant had held a position of trust as an assistant coach of a girls sports team.

The difference in age between each man and his victim was also an aggravating factor.

Defilement is carnal knowledge of a girl under 16. Consent is not an issue because the law protects the girl absolutely.

The appeals were argued together on Nov. 4 because they involved the same principles and Crown Counsel Laura Manson responded to both.

Sentencing guidelines

In announcing the court’s decisions, president Sir John Chadwick noted that when the Grand Court issued sentencing guidelines in 2002, the maximum sentence by law for defilement was seven years and the tariff was five years.

In 2005, the maximum was increased to 12 years, but the guideline has not been altered.

“It is, we think, appropriate to consider whether the basic tariff should be adjusted upwards” in light of the maximum sentence now in effect, Justice Chadwick said.

He pointed out that five years was a substantial portion of the seven years that could be imposed in 2002.

In the cases under appeal, attorneys argued that the sentences were manifestly harsh and excessive because the judges had raised their starting point too far above the five-year tariff. However, all parties agreed that the defendants did receive a full one-third discount for their guilty plea.

For McLean, attorney Laurence Aiolfi also argued that the girl’s age was close to 16 at the time the offense occurred, that she had been a willing participant and had told authorities she didn’t think McLean should be punished.

Ms. Manson replied that the younger the girl was, the worse the offense was, but “you don’t get points because she is older.”

She agreed with Justice Bernard Rix, who put her argument another way: “The younger age aggravates the offense, the older age doesn’t mitigate it.”

Justice Chadwick noted that age may very well play a part in any psychological harm caused.

McLean was 30 at the time of this second offense. The girl was 15 years and seven months. Justice Henderson used a starting point of eight years for sentencing.

The sports coach was 30 at the time of his offending, and the girl was 13. By court order, he and the team cannot be named because to do so could identify the girl.

Attorney Fiona Robinson did not argue against Justice Quin’s starting point of seven years, but she submitted that he did not give sufficient reduction for the many mitigating features in the case. These included numerous positive character references, the relationship of genuine affection, and the defendant’s own upbringing that had included sexual abuse between the ages of 9 and 11.

In announcing the court’s decisions on Friday, Justice Chadwick concluded that it could not be said that either Grand Court judge had erred in deciding on a starting point above the guideline of five years because of the serious aggravating factors involved. He said there was no basis on which the appeal court could regard either sentence as manifestly excessive. Justice Rix and Justice Elliott Mottley agreed.

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