A man sentenced last year to four years imprisonment for indecent assault lost his appeal against that sentence on Friday.
Attorney Richard Barton had argued that sentence was manifestly excessive, given the circumstances of the case.
Chaz Leo Kadri Powery, 30, pleaded guilty in Summary Court to two counts of indecent assault that occurred in April 2017. The assaults occurred after he offered the victim a ride as she was walking along West Bay Road. The woman did not know him, but accepted the ride. Instead of taking her home, he took her to a secluded area where the first assault occurred. The second assault took place as he was driving to another location.
Mr. Barton submitted that Magistrate Valdis Foldats had not given enough credit for mitigating factors and had given too much weight to the fact that the incident began in a tourist area.
Crown counsel Scott Wainwright replied that the location of the offending was important. If the victim had been a tourist, reports of the incident could have had a devastating effect on the industry, which is a significant part of the country’s economy, he pointed out.
In his sentencing, the magistrate had told Mr. Powery that his offending bordered on the crimes of abduction and attempted rape. With a maximum sentence of 10 years for the offense of indecent assault, the magistrate fixed six years as the appropriate sentence but then gave one-third discount for the guilty pleas.
Mr. Barton urged Grand Court Justice Marlene Carter to say that the magistrate had not given enough credit for Mr. Powery’s genuine remorse and the effect of his imprisonment on his family. He argued that the level of violence used was “not more than enough to facilitate the actions that resulted in his guilty pleas.”
The defendant had told the woman that he did not mean to force her – he just wanted sex. When she resisted his attempts at intercourse, Mr. Powery redirected his efforts to oral sex, his attorney pointed out. He noted that the offending was not sophisticated; Mr. Powery used his own car, he did not hide his identity, and he took the woman home afterward.
At the sentencing hearing in September, the Crown explained that the victim had been at a hotel bar with friends, but left alone and decided to walk home some time after midnight. She reported the assaults to police in the morning. Officers checked government cameras in the area where she said the man had offered her a ride. At a time consistent with her account, the CCTV showed a vehicle stopping and then driving off. Continuing to track that vehicle by means of cameras at different points, officers were able to identify the color and make of the vehicle and its license number, which led them to Mr. Powery several days later. He admitted picking up the woman, but initially claimed she was the sexual aggressor.
Mr. Barton asked the court to consider that the starting point for the sentence should have been four years, with an uplift of six months for the aggravating features. With one-third discount for the guilty pleas, the total sentence should have been three years, he said. He mentioned the sentence of Jemal Kahn, the chiropractor who received four years for indecently assaulting nine patients and taking photos of two others without their consent. Comparing that case with Mr. Powery’s, “It doesn’t square,” he argued.
Mr. Wainwright responded that all the points complained of had been carefully addressed by the magistrate, whose sentence reflected the prevalence of this kind of offending in this jurisdiction.
He pointed out that it was not for the appeal court to consider its own views, but to look at whether the sentence was just and fair, having regard to the seriousness of the offending.
In dismissing the appeal, Justice Carter said the magistrate had been very careful to explain his reasons for sentence and there was nothing to indicate he had not considered all aspects of the case.
There was nothing put before her to say that the sentence was manifestly excessive, she concluded.