R v Marcado Rowe

• Jurisdiction: Jamaica
• Judge: Shelly-Williams J
• Judgment Date: 01 February 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. MNCT2019CR00064

[2022] JMSC Crim 1

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CRIMINAL DIVISION

CLAIM NO. MNCT2019CR00064

Between

Regina

Prosecution

and

Marcado Rowe

Defendant

Ms Natallie Malcom Assistant Director of Prosecution and Mr. Daniel Kitson-Walters— Crown Counsel for the Director of Public Prosecution.

Mr. Charles Benbow for the Defendant.

Sexual Intercourse with a Person under Sixteen — Person In Authority

IN COURT

Shelly-Williams J

Background

1 The complainant, is a student at a high school in Manchester, whilst the defendant was a teacher at the said high school. On 27 ^th day of May 2019, the complainant went in to the defendant's office to do an assignment. Whilst in his office, the defendant kissed the complainant, pulled down her underwear, put her to lay down on his desk and had sexual intercourse with her.

2 The complainant started to cry and indicated that she was in pain. The defendant stopped having sexual intercourse with her, but then indicated to the complainant that he ‘wanted more’ the following Wednesday.

3 The complainant went home shortly afterwards and her mother noticed blood on her tunic. The complainant's mother took her to the Police Station to make a report. The complainant was taken to the doctor who noted certain injuries and swabs and samples from the complainant. The defendant was subsequently arrested and a deoxyribonucleic acid (DNA) sample was taken from him. The DNA results indicated that the defendant could not be excluded.

4 The defendant pleaded guilty on the 8 ^th day of December, 2021 for having sexual intercourse with a person under sixteen years, he being a person in authority.

The Law

Case Law

5 The case law gives some guidance as to the type of sentences that are to be imposed in these cases. McDonald – Bishop, JA in the case of Blake (Samuel) v R [2015] JMCA Crim 9, dealt with the issue of sentencing in sexual offences cases. In that case, the defendant was given a sentence of four years for having sexual intercourse with a person under the age of sixteen years. McDonald-Bishop JA stated at paragraph 32 of her judgment that:-

We believe in all the circumstances that the learned trial judge was rather lenient, bearing in mind that the maximum is life imprisonment. The applicant was not in a position of trust, properly so called, to which the minimum sentence of 15 years prescribed by the statute would apply but he was in a position of superiority given his age, stage of maturity and economic position vis-à-vis the complainant. A sentence of imprisonment of meaningful duration was, therefore, warranted.

6 In the Canadian case of R v Lee 2012 ABCA 17 (Can LII) at paragraph 141, the learned judge stated:”

A key value in a starting point is its reflection of a preliminary evaluation, for proportionality purposes, of the gravity of the offence and the degree of responsibility of the offender in a typical case.

7 In R v Rayon Mason, [2009] JMCA Crim 56/07 Panton P indicated the approach judges should adopt in these cases. The learned President stated at page 4 that:

We trust that the young men, and indeed the old men too, because the old men are doing it, will recognize that girls are to be left alone and those who interfere with them sexually can expect nothing but imprisonment. We urge the courts below not to fail to impose imprisonment in these situations. If men will not hear, then, they will feel.”

Statute

8 The accused was charged pursuant to the Sexual Offences Act. In particular, he was charged pursuant to Section 10 (4) for having sexual intercourse with a person under sixteen he being a person in authority, which states that:-

• (1) Subject to subsection (3), a person who has sexual intercourse with another person who under the age of sixteen years commits an offence.

• (4) Where the person charged with an offence under subsection (1) is an adult in authority, then, he or she is liable upon conviction in a Circuit Court to imprisonment for life or such other term as the Court considers appropriate, not being less than fifteen years, and the Court may, where the person so convicted has authority or guardianship over the child concerned, exercise its like powers as under section 7 (7).

• (5) Where a person has been sentenced pursuant to subsection (4), then, in substitution for the provisions of section 6 (1) to (4) of the Parole Act, the person's eligibility for parole shall be determined in the following manner: the Court shall specify a period of not less than ten years which that person shall serve, before becoming eligible for parole.

9 This statute dictates a mandatory minimum of fifteen years once a person is convicted for this offence. The law, however makes provision for a discount where there is a guilty plea.

10 The Criminal Justice (Administration) (Amendment) Act 2015 gives some guidance to the court as to the discount that may be awarded in the event that an accused person pleads guilty to an offence.

• 42. D – (1) Subject to the provisions of this Part, where a defendant pleads guilty to an offence with which he has been charged, the Court may, in accordance with subsection (2), reduce the sentence that it would otherwise have imposed on...