Samuel Blake v R

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA
• Judgment Date: 11 March 2015
• Neutral Citation: JM 2015 CA 30
• Docket Number: APPEAL NO 60/2014
• Court: Court of Appeal (Jamaica)
• Date: 11 March 2015

Samuel Blake

and

R

[2015] JMCA Crim 9

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

APPEAL NO 60/2014

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CRIMINAL

CRIMINAL LAW - Statutory rape - Sexual intercourse with under-aged child - Application for leave to appeal sentence and for bail pending hearing of appeal - Guilty plea - Complainant six months away from statutory age of consent - Whether sentence manifestly excessive - Issue of consent - Principles of sentencing - Application refused - Sexual Offences Act, s. 10(1)

Miss Yolanda Kiffin for the applicant

Mrs Suzette Whittingham-Maxwell for the Crown

ORAL JUDGMENT

McDonald-Bishop JA (Ag)

1 On 19 May 2014, Mr Samuel Blake, the applicant, pleaded guilty before David Fraser J, sitting in the Circuit Court for the parish of Westmoreland, to one count on an indictment that charged him with the offence of having sexual intercourse with a person under the age of 16 years contrary to section 10(1) of the Sexual Offences Act.

2 The particulars of the offence were that on a day unknown between 1 December 2012 and 31 December 2012, in the parish of Westmoreland, he had sexual intercourse with the female complainant who, at the time, was under 16 years old.

3 The facts, as briefly outlined to the learned trial judge were that the complainant was born in June 1997 and that she knew the applicant as Ben. He operated a shop in the district in which she lived. A relationship was struck up between them in or around October 2012. It became serious over time and in December 2012 the applicant had sexual intercourse with the complainant. The matter was brought to the attention of the police when the complainant was discovered to be pregnant and she alleged at the time that the applicant was the father of her child. The applicant was taken into custody by the police based on that report. He, initially, did not accept paternity but a paternity test, by DNA analysis, was done after the birth of the child which showed that he could not have been excluded as the father of the child and that there is a 99.99% chance that he is the father.

4 The applicant's response to the facts stated, as gleaned from the plea in mitigation and the social inquiry report that was before the learned trial judge was, basically, that he was lured and tempted by the complainant who would attend on him at his shop dressed in revealing clothes and making sexual advances to him. There were two areas of dispute between the version advanced by the prosecution and that advanced by the applicant. Those related to where the sexual intercourse took place and whether or not the complainant had told him she was 16 years old. The learned trial judge resolved those areas of dispute in the applicant's favour by accepting his version concerning those matters.

5 As can be seen from the facts that were outlined, the complainant would have been about six months shy of her 16 ^th birthday at the time the sexual intercourse took place. It was also revealed during the course of the sentencing hearing that the applicant was, at the time, about 51 years old.

6 After a detailed consideration of (i) the facts outlined by the prosecution; (ii) the applicant's response to those facts; (iii) a social inquiry report; (iv) an antecedent report as well as (v) a rather moving plea in mitigation by counsel appearing for the applicant at the time, the learned trial judge imposed a custodial sentence of four years imprisonment at hard labour.

The application for leave to appeal

7 The applicant, being aggrieved by that sentence, subsequently filed an application to this court for leave to appeal against his sentence and for bail pending the hearing of the appeal. The application for bail was placed for consideration before a single judge in chambers who refused the application for bail but directed that the application for leave to appeal should be heard by the court. It is, therefore, based on that direction that the application for leave to appeal has come before this court for consideration.

8 The applicant filed one ground of appeal, which stated as follows:

‘(1) The sentence of four years Imprisonment at Hard Labour imposed on the Applicant/Appellant by the Learned Sentencing Judge is manifestly excessive, given all the circumstances.’

9 Miss Kiffin, appearing on his behalf before this court, expanded tremendously on the single ground in her written submissions that she called “skeleton arguments”. We must state for the record, in commendation of learned counsel, that there is nothing skeletal about those arguments. They are, indeed, comprehensive and enlightening submissions on the law pertaining to sentencing that she has put forward, with admirable tenacity, in her effort to persuade this court that the sentence imposed on the applicant should be reduced. We will surely not do justice to her detailed submissions made before us but we have made an effort to summarize, as best as possible, the gravamen of the arguments she presented in advancing the single ground of appeal. We will attempt to highlight, at this juncture, the basic planks of those arguments under the various headings as put forward by her.

The applicant's contention

(i) The plea of guilt

10 Learned counsel contended, firstly, that the applicant had pleaded guilty at the first opportunity and so the learned trial judge was obliged to indicate as a matter of law not only that he had taken into account the fact that the applicant had pleaded guilty but also the sentence he would have imposed had the applicant gone to a trial and had been convicted. She cited two authorities from this court, Joel Deer v R [2014] JMCA Crim 33 and Basil Bruce v R [2014] JMCA Crim 10, in advancing this submission. Having relied on those authorities, counsel submitted that the learned trial judge, having not indicated a starting point, has made it difficult for this court to assess how he was influenced by the various factors that he had identified as being mitigating and aggravating factors in determining an appropriate sentence. She submitted that this omission is not cured by the learned trial judge's comments concerning the amendment to the Sexual Offences Act that provides that the maximum penalty for such offence is now life imprisonment.

(ii) The age of the complainant

11 The second plank of learned counsel's submissions was the age of the complainant. She highlighted the fact that the complainant was 15 ¹/₂ years of age at the time of the commission of the offence which shows that she would have been just months away from the age of consent. Her complaint on behalf of the applicant is that the learned trial judge ‘unwittingly neglected, in his assessment, for the purposes of sentencing, to place any degree of weight on the fact that the complainant was no more than six months younger than the statutory age of consent’.

12 In support of this argument, she relied on the case R v Muff, The Times, (1958) 481 , judgment of the UK Court of Criminal Appeal. She pointed out that that case is instructive on how the age of the complainant ought to have been treated, albeit that the girl in that case was three days from the age of 16. In that case, the court had set aside the appellant's sentence of two years imprisonment and substituted a sentence that would have allowed for his immediate release based on the age of the girl. Learned counsel maintained, in reliance on that authority, that the fact that the complainant in the instant case was no more than six months away from her 16 ^th birthday was a factor that the learned trial judge should have demonstrated that he took into account in his assessment of the mitigating factors.

(iii) The issue of “consent”

13 A related matter that Miss Kiffin also highlighted for the consideration of this court is the issue of consent. She contended that although the law states that there can be no consent by a person under the age of 16 years, the fact that the sexual intercourse was consensual was a factor that the learned trial judge did not take into account as a mitigating factor. She sought to rely on the Canadian case R v Allen 1989 Can LII 3932 (NLCA), on the basis that it provides some insight into how the issue of consent may be treated in circumstances where an accused person had pleaded guilty for a sexual offence and the tribunal is assessing the various factors with a view to imposing a sentence. In that case, the court on an appeal against sentence, considered, among other things, that the sexual act was consensual and held that consent may be a mitigating factor depending on the circumstances of the case.

(iv) Principles of sentencing

14 Miss Kiffin also referred to the principles of sentencing as enunciated by this court in several cases, particularly in Christopher Brown v R [2014] JMCA Crim 5 and Marc Wilson v R [2014] JMCA Crim 41. Her argument, in relying on those authorities, was that the tribunal in determining an...