Chavon Bailey v R

• Jurisdiction: Jamaica
• Judge: Simmons, J.A.
• Judgment Date: 11 April 2025
• Neutral Citation: JM 2025 CA 27
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: NO 63/2018

Chavon Bailey

and

R

F Williams, J.A.; Simmons, J.A.; Shelley-Williams, J.A. (Ag)

Suit No.: NO 63/2018

Court of Appeal

Appearances:

Mrs Emily M Shields for the applicant

Miss Kathy-Ann Pyke for the Crown

Simmons, J.A.

1 The applicant, Mr Chavon Bailey, was charged on an indictment with two counts of grievous sexual assault and one count of rape. On 28 June 2018, the applicant pleaded guilty in the Circuit Court for the parish of Saint Mary to one count of grievous sexual assault and one count of rape. On the second count of grievous sexual assault, the prosecution offered no evidence and he was consequently discharged.

2 On 5 July 2018, he was sentenced to 18 years' imprisonment at hard labour on each count. The sentences were ordered to run consecutively, resulting in an aggregate sentence of 36 years' imprisonment. The applicant was ordered to serve a total of 20 years before being eligible for parole.

3 On 20 July 2018, the applicant filed an application in this court for permission to appeal the sentences. His application was based on the following grounds:

• (1) Unfair Trial: That based on the facts as presented the sentences are harsh and excessive and cannot be justified.

• (2) That the learned trial judge did not temper justice with mercy, as his guilty plea was not taken into consideration.

4 A single judge of this court considered the application on 30 July 2019 and refused his application. The applicant renewed his application before this court as is his right. On 7 and 8 March 2024, this court, after hearing the application reserved its decision.

BACKGROUND

5 The complainant in this matter was a six-year-old girl who is the applicant's niece. At the time of the commission of the offences she lived with her mother and her brothers at her grandmother's home (the applicant's mother).

6 Both offences were committed in 2017. However, the indictment did not particularise the dates of the offences. The first offence occurred at the complainant's grandmother's house. On that date, the complainant was asleep in her grandmother's bedroom when the applicant entered the room, picked her up, and took her to the bathroom where he inserted his fingers into her vagina. The second offence was also committed at her grandmother's house. The applicant, on that occasion, took the complainant into his bedroom and placed his penis in her vagina.

7 The complainant repeatedly complained to her mother that she was experiencing pain and itching in her vagina. When asked if anyone had troubled her, the response was “no”. On 31 January 2018, whilst the complainant and her mother were in the bathroom, the complainant showed her mother her panties that were wet and complained again of feeling pain and that there was a discharge from her vagina. On 1 February 2018, her grandmother took her to the doctor, where she was examined, and the doctor found that she had no hymen and that she was suffering from chlamydia and gonorrhoea.

8 On 5 February 2018, the applicant was brought to the Port Maria Police Station, where he was informed that a report had been made against him. When told about the offence of rape, he said “Miss, a only finger mi finger har, and a from 2016 that”. When told of the offence of grievous sexual assault, the applicant, upon being cautioned, said, “Miss, fi tell you the truth, mi have a problem with pum-pum”.

THE APPLICATION

9 On 7 March 2024, the applicant sought and was granted leave to rely on the following supplemental grounds of appeal:

“MITIGATING CIRCUMSTANCES

• 1. The learned trial judge failed to give any weight to the commendations of community members of the applicant from the social enquiry report as a mitigating factor.

CONTESTED AGGRAVATING FACT

• 2. The learned trial judge erred in law in the [sic] failing to properly consider a contested aggravating fact advanced by the Crown through the social enquiry report-that is, that the complainant contracted the sexually transmitted disease, gonorrhoea—a disease, [that] the applicant's counsel represented the applicant displayed no signs of.

• 3. The learned trial judge erred in sentencing the applicant in:

  • (a) accepting a contested aggravating fact advanced by the Crown through the social enquiry report, that is, that the complainant contracted the sexually transmitted disease, gonorrhoea; and

  • (b) using that accepted fact in a way which was extremely adverse to the applicant — when that fact was not approved by the prosecution, to the requisite standard of proof-beyond a reasonable doubt.

CONSECUTIVE SENTENCE

• 4. The learned trial judge erred in sentencing the applicant to serve consecutive sentences in circumstances where the offences, though revolting, are of a similar nature; committed over a short period of time; and against the same victim.

• 5. The sentences being consecutive violate the totality principle.

MANIFESTLY EXCESSIVE SENTENCE

• 6. The sentences imposed by the learned trial judge are manifestly excessive in that:

  • (a) The sentences are much higher than those imposed for more egregious acts of rape and grievous sexual assault;

  • (b) The learned trial judge, though within the range for offences of the type for which the applicant was convicted, started at the starting point of 25 years, contrary to sentencing guidelines and authorities of this court when there was no proper basis for doing so;

  • (c) The learned trial judge, even starting at the point she did, did not properly use the formula outlined in the CRIMINAL JUSTICE (ADMINISTRATION) (AMENDMENT) ACT, 2015 and therefore fell unto [sic] error in her calculations.” (Bold as in the original)

SUPPLEMENTARY GROUND 1 — THE LEARNED TRIAL JUDGE FAILED TO GIVE ANY WEIGHT TO THE COMMENDATIONS OF COMMUNITY MEMBERS OF THE APPLICANT FROM THE SOCIAL ENQUIRY REPORT AS A MITIGATING FACTOR

SUBMISSIONS

FOR THE APPLICANT

10 Mrs Shields, on behalf of the applicant, submitted that based on the decision of this court in R v. Evrald Dunkley (unreported) Court of Appeal, Jamaica, Resident Magistrates Criminal Appeal No 55/2001, judgment delivered on 5 July 2002, the court when sentencing the applicant was obliged to consider his character.

11 She stated that the learned judge gave no weight to the community's views, specifically that they described the applicant as a “productive citizen”. She stated that the learned judge substituted her opinions for those of the community when those views ought to have been treated as a mitigating factor. This approach, counsel submitted, was plainly wrong.

FOR THE CROWN

12 Miss Pike, on behalf of the Crown, submitted that the learned judge referred to the applicant's reputation in the community and gave him credit for that. Counsel stated that the learned judge balanced deterrence with rehabilitation because the applicant was 20 years old at the time of sentencing. She, however, stressed the importance of deterrence as the applicant committed the acts within six months of each other, and his prospects for recidivism were very high based on the circumstances of the case.

13 Counsel submitted that the learned judge gave full regard to the applicant's circumstances and the community's request for leniency. However, she quite rightly rejected that request as the community's view demonstrated a lack of appreciation of the seriousness of the offence and its impact upon the complainant. In this regard, Miss Pike referred to the portion of the transcript where the learned judge recounted the community's plea for leniency and stated that they may have “fallen prey to the cultural norm that it is okay to have sex with children”. It was on this basis that she did not accede to their request.

14 The learned judge did not reject the community's perception of the applicant as a whole but rather rejected the request for leniency. Counsel submitted that based on the cases of R v. Ball (1952) 35 Cr. App. Rep. 164 and R v. Alpha Green (1969) 11 J.L.R. 283, sentencing is a matter for the sentencing judge's discretion which is to be exercised in accordance with the relevant principles The learned judge having exercised her discretion rejected the recommendation of the community and as such did not fall into error.

DISCUSSION

15 A judge, in conducting a sentencing exercise, must have regard to any evidence raised as to the good character of the defendant. Such evidence is to be treated as a mitigating factor. This principle was explained by Harrison, J.A. in R v. Evrald Dunkley at pages 7–8:

“A further discounting of the sentence, in favour of the appellant, for his evident good character, should have been effected by the learned Resident Magistrate. Insofar as she did not state that she did so, it has to be assumed that she failed to do so and was also again in error. For that further reason, we were of the view that the sentence of 12 months was manifestly excessive.

We note that there was no antecedent of the appellant presented to the Court. The appellant was sentenced without the learned Resident Magistrate having any knowledge of his character. This is undesirable and must not be followed. He must accordingly be taken to have had no previous conviction.

Every man's good character must be of some value.”

16 Counsel directed the court to the following remarks made by the learned judge during sentencing:

“The fact that the community says that you are a good youth, I frown on that community, because clearly, the people who live in that community do not understand what has happened to that child or to that family. FOR THEM TO SAY THAT YOU SHOULD BE GIVEN LENIENCY BY THIS COURT MEANS THAT IT IS NOT A COMMUNITY THAT I SHOULD HAVE ANY REGARD FOR. They have fallen prey to the cultural norm that it is okay to have sex with children, which is too pervasive in this parish in particular and in Jamaica as a whole. So, I disregard what the community has to say entirely.” (Emphasis supplied)

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