Sentenced to a total of 37 years back in 2015 for raping a young girl on three occasions, Linton Pompey yesterday had his sentence reduced to 17 years after the Caribbean Court of Justice (CCJ) in a majority judgment found it to be severe.
Allowing Pompey’s appeal in part, the Trinidad-based court of last resort affirmed the sentences of five, 15 and 17 years imposed by the Guyana Court of Appeal, but ordered that they run concurrently.
The final appellate court, however, made several observations and called for judges of the local courts to conform to established guidelines and precedent aimed at arriving at a standard of consistency in sentences they impose.
In the ruling of the court, read during a virtual hearing yesterday morning by Justice Maureen Rajnauth-Lee, an admonishment was given for judges here to follow appropriate guidelines.
It had been the argument of Guyana’s Director of Public Prosecutions (DPP) Shalimar Ali-Hack, that the penalty imposed upon Pompey was especially warranted given the specific circumstances of the case.
Pompey was convicted for sexually assaulting a teenager on three separate occasions just under the span of a year—once for engaging in sexual activity with the 14-year-old and then raping her twice thereafter.
He was sentenced to five years for the offence of sexual activity, and 15 years and 17 years respectively for the first and second rape charges.
Among other factors, the DPP had been keen on pointing out that these circumstances justified the trial judge’s order that the sentences imposed upon Pompey to be served consecutively.
Pompey’s contention, however, had been that the sentences were too harsh.
His appeal to the Guyana Court of Appeal had been dismissed after that court affirmed the sentences imposed by the trial judge.
Allowing Pompey only permission to appeal the severity of his sentence, the CCJ pronounced that ordinarily it would have been open to the trial judge to order Pompey’s sentences to be served consecutively given that consecutive sentences are normally appropriate where offences arise out of unrelated facts or incidents, or when offences are of the same or similar kind and are committed against the same person at different dates.
The court, however, pointed out that where a judge chooses to give consecutive sentences, care has to be taken to ensure that due regard is paid to the totality principle.
In Pompey’s case, the court found that no such regard was paid.
Neither too harsh nor too lenient
An opinion expressed in the judgment by President of the court Justice Adrian Saunders first examined the issue of concurrent and consecutive sentences in the context of the totality principle.
He noted that this principle can be thought of in the same way as the principle of proportionality where a sentence must be proportionate.
The totality principle he noted, required that when a judge sentences an offender for more than a single offence, the judge must give a sentence that reflects all the offending behaviour that is before the court.
But this is subject to the notion that, ultimately, the total or overall sentence must be neither too harsh nor too lenient.
Against this background, the court’s ruling highlighted that two broad approaches were legitimately open to the trial judge, where in the first instance the judge could have moderated the individual sentences, so as to avoid breaching the totality principle, and then have the moderated sentences run consecutively.
Alternatively, the CCJ said that the judge could have imposed a sentence for the second rape, the most serious offence that fairly reflected the offender’s overall criminality, and have him serve that sentence concurrently with the sentences given for the other two offences.
The majority of the Bench conceded that 17 years for the second rape was a stiff sentence, but they noted that this sentence fell well within the range courts in the common law Caribbean will impose for like offences.
The ruling noted that while some judges might have given a different sentence if they had initially sentenced Pompey for the second rape, the majority did not consider that a sentence of 17 years imprisonment for that offence was either so lenient or so harsh that it warranted being set aside by an appellate court.
The Court found, however, that Pompey’s sentences for the other two offences should be served concurrently with the sentence imposed for his second rape of the child.
In the ruling, Justice Saunders called into question the practise of passing sentence immediately after a verdict comes in, as was done in Pompey’s case, which he said should generally be eschewed, especially in cases where there is a likelihood that a lengthy prison term may be imposed.
The CCJ President reasoned that in such cases, the judge should hold a separate sentencing hearing at which mitigating and aggravating factors, including mental health or psychological assessments, can better be advanced and considered.
Where it became necessary to sentence someone for multiple serious offences, before pronouncing sentence, Justice Saunders said that the judge should ensure that the sentence is structured in a manner that yields a result that is consistent with the totality principle and the public must be given the reasons for the sentence imposed.
Appropriate guidelines needed
The CCJ also expressed the view that “Guyana’s trial judges would be better served if they followed appropriate guidelines that suggest various sentencing ranges for the most prevalent crimes.”
On this point, Justice Rajnauth-Lee drew attention to the alarming prevalence of sexual crimes in Guyana and the spike in reported cases of domestic violence experienced worldwide, and referenced the Judicial Reform and Institutional Strengthening Project (“JURIST”), which developed model guidelines in 2015 for managing sexual offence cases.
The Model Guidelines adopt a rights-based approach and explore best, good and promising practices for improving investigatory processes, ensuring adequate safeguards for the protection and care of complainants and vulnerable witnesses, while securing at all times a fair hearing for defendants in sexual offence cases.
She endorsed the recommendation that the trial judges of Guyana would benefit greatly from sentencing guidelines crafted, agreed upon and published by the Judiciary of Guyana.
Concurring with this view, Justice Peter Jamadar said that as it relates to sentencing generally, an appellate court will not substitute its own opinions as to what constitutes appropriate and fit sentences unless there are either errors in principle that have a significant impact on the sentences, or the sentences are in and of themselves manifestly excessive or otherwise demonstrably unfit.
He said that due deference must therefore be paid to trial judges in the execution of their sentencing powers.
The judge’s opinion was that sentencing is quintessentially contextual, geographic, cultural, empirical, and pragmatic and that Caribbean courts should therefore be wary about importing sentencing outcomes from other jurisdictions whose socio-legal and penal systems and cultures are quite distinct and differently developed and organised from those in the Caribbean.
The court called for sentencing guidelines noting that they would go a long way towards creating some consistency in the sentencing practices of the courts.
It had been the argument of defence attorney Nigel Hughes that his client’s sentence was too severe especially given that there are cases where people are sentenced to less than that amount for offences resulting in death, citing manslaughter as an example.
Acknowledging that the offence is abhorrent, a fact which Hughes said he was in no way trying to challenge, he pointed out that comparatively, and in the absence of any particular guidelines, when looked at other offences for similar convictions, the sentences imposed upon his client was above the norm.
The appeal before the CCJ was heard by the full bench consisting Justices Rajnauth-Lee, Saunders and Jamadar along with Justices Jacob Wit, Winston Anderson, Denys Barrow and Andrew Burgess.
In 2015, Pompey, a father of 12 was convicted for the sexual penetration of a child under the age of 16 on January 10th, 2012 and between June 1st and June 30th, 2013, as well as for engaging in sexual activity with the minor between May 1st and May 31st, 2011.
