Probation ordered in defilement case

Bryan Cashan Powell was sentenced last week to two years probation after pleading guilty to defilement of a girl under the age of 16. 

Now 20, Powell was 18 at the time of the offence and the girl was 14. The Penal Code defines defilement as unlawful and carnal knowledge of a girl under 16. It is no defence to say the girl consented. 

The girl’s mother reported the matter to police after discovering the girl was pregnant. 

Senior Crown Counsel Tanya Lobban-Jackson presented the facts of the case in August and Justice Charles Quin said he would take time to consider sentencing. 

Ms Lobban-Jackson told the court that the girl was 13 when she first met Powell and they communicated primarily by phone, text and e-mail. Four or five months later she received a text from him asking if they could meet and she said yes. 

He asked her what she wanted to do and she said she wanted to talk. He then asked her if she wanted to have sex and she said she wasn’t too sure. He subsequently drove to a location some distance from her home and she rode a bicycle to meet him. 

The girl told police that she went to the driver’s side of the car and asked Powell if he wanted to have sex and he said yes. She then rode to a more secluded area and he drove the car. When they arrived, she got into the vehicle. 

During the discussion that followed, she asked him if they were going to do it protected and he said no. The girl asked what would happen if she got pregnant. She said he replied, “Nothing, I will be there.” They then had sexual intercourse. 

A few months later, the girl’s mother received a report that the girl had been seen exiting Powell’s vehicle. The mother had also observed her daughter vomiting in the previous two weeks and she formed the opinion that the girl could be pregnant. A doctor confirmed the pregnancy. 

Powell was arrested and denied the allegations. 

Later, the girl had a miscarriage. Ms Lobban-Jackson said remnants were recovered and DNA testing was carried out. The chance that the male contributor to the “remnant” DNA could have been someone other than Powell was one in 3,610. 

He was subsequently charged with five counts of defilement and earlier this year pleaded guilty to one. His plea was acceptable to the Crown and the other charges were not proceeded with. After his plea, a social inquiry report was ordered. 

Defence attorney John Furniss said it made sad reading because of Powell’s family situation. He also quoted from the report a comment about “poorly used leisure time, of which he appears to have too much.” 

He urged the court to consider a community-based sentence, pointing out that the new Alternative Sentencing Law provides for a suspended sentence with supervision. 

Justice Quin referred to the report in greater detail before putting Powell on probation. He noted that the defendant’s natural father did not honour his paternal obligations and his stepfather did not accept him, so he felt abandoned and neglected for most of his life. 

He did have the love and support of his mother until she married the stepfather. Fortunately, Powell’s grandmother had endeavoured to give him love and support during his teenage years. 

The social inquiry report referred to tendencies toward unacceptable social behaviour and lack of academic success. If not for his grandmother Powell could have been facing even worse problems, Justice Quin commented. 

He said there was evidence to support Powell’s claim that he did not realise the girl was 14. “However, it is fair to say that the defendant and the victim were involved in what has been described as a friendly fortuitous relationship. The sexual intercourse was consensual in nature,” he pointed out, and it was clear from the evidence put before the court that Powell was fond of the girl. 

“Nowadays most judges would take the view, and rightly take the view, that where there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentences of a punitive nature,” Justice Quin said. 

There is a wide spectrum of guilt in defilement cases, he pointed out. They range from two young people of a similar age in a relationship to situations in which older men in supervisory positions set out deliberately to seduce young girls in their care. 

Powell had no previous conviction and the judge said he was impressed by the fact that the grandmother had told the court that Powell gave her $200 weekly for household expenses from his wages of $450. 

Imposing a probation order under the Alternative Sentencing Law, Justice Quin added conditions that included attendance at an anger management course, random drug testing and a ban from entering any liquor licensed premises.