R v ABC (Sentence)
| Jurisdiction | Bermuda |
| Judgment Date | 17 April 2023 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Criminal Jurisdiction 2022 No 1 |
[2023] Bda LR 37
Criminal Jurisdiction 2022 No 1
In The Supreme Court of Bermuda
Sexual exploitation of a young person while in a position of trust — Incest — Requirement to serve at least half of prison sentence — Consecutive sentences
The following cases were referred to in the judgment:
Brangman v R [2019] Bda LR 93
R v Martin [2023] Bda LR 34
Ms C Clarke for the Crown
Mr C Richardson for the Defendant
RULING of Subair Williams J
1. The Accused was convicted by the unanimous verdict of a jury of 12 on Monday 13 February 2023 on three counts of sexual exploitation of a young person while in a position of trust and two counts of incest.
2. His sentence hearing was held in this Court on Wednesday 5 April after which I reserved to provide this ruling.
3. There are two Complainants in this matter. They are sisters insofar as they share the same mother, a non-Bermudian national.
4. In 2007 the mother (the “Mother”) and the Accused were in an intimate relationship and lived together in a small one bedroom apartment. At that time, the elder of the two sisters (the “Sister”) was 6 or 7 years of age and was living under the care of the Mother and the Accused. A year or so later in 2008, the Mother became pregnant with the younger sister who is the biological daughter of the Accused. I shall refer to that younger sister as “the Child” because she is still a child, being 13 years of age. Otherwise, I also refer to the Child as “the Daughter”.
5. So, in 2008, while the Mother was expecting, the three of them moved into a larger two-bedroom house in Pembroke Parish. This coincided with an economic recession during which the Accused was rendered unemployed for the whole of 2008. During this period, the Accused became involved with a different woman (a Bermudian national) with whom he later married. However, in 2008 he spent most of his home-time with the Mother who worked tirelessly running a small housecleaning business during her pregnancy. She alone paid for the rent and expenses of the two-bedroom household.
6. The Accused's conviction under Count 1 of the Indictment is a charge of sexual exploitation while in a position of trust. This refers to an occasion when the Sister came out of her room one night to look for a snack to eat in the kitchen. The Mother was in the room she shared with the Accused sound asleep. At that time the Sister was only 8 or 9 years old. The Accused, who was sitting at the living room table on his computer, intercepted her as she walked past him and caused her to sit on his lap. He then pulled her underwear to the side and inserted his fingers into her vagina.
7. The conviction under Count 2, another charge of sexual exploitation while in a position of trust, also relates to the Sister. This was another occasion at night when the Accused pushed her underwear to the side and tried to insert his penis into her vagina. He was successful to the extent that the head of his penis entered her vagina. Again, this occurred while the Mother was in her room sleeping.
8. On Count 3 the Accused was convicted for the final charge of sexual exploitation which relates to the Child, the Accused's biological daughter. This occurred somewhere between 6 and 11 years after the Sister had been sexually exploited.
9. By way of background, the Child had been living overseas before she came to Bermuda to live with her father, the Accused. By this time the Accused had married the Bermudian woman with whom he was living. The Accused also had a son who was living with him and his wife between 2016 and 2021.
10. While the Child was living in that household with the Accused, his wife and her brother, she was the victim of his sexual exploits. The offensive act under Count 3 refers to the Accused causing the Child to perform oral sex on him when she was 8 or 9 years old.
11. The Accused was convicted for incest under Count 4. These sexual acts to which Count 4 relate apply to the Accused having vaginal intercourse with the Child on three separate occasions. On the first occasion he did so on his bed where he otherwise slept with his wife. On another occasion the intercourse occurred on the kitchen floor beside a trash can and on a third example, the intercourse took place on the living room couch. This all occurred before the Child had experienced her first menstrual cycle. In her evidence at trial, she said that her father instructed her not to tell anyone about this.
12. The evidence under Count 5, the other charge of incest for which the Accused was convicted, relates to two separate occasions. On one of those two occasions, the Accused drove his daughter, the Child, to an outside location on the eastern end of the island on North Shore Road. There he engaged in vaginal intercourse with her. This happened immediately after the Accused attended a Parent–Teacher's meeting at the Daughter's primary school. The other occasion of vaginal intercourse occurred on Father's Day night after the Accused threw a party at his house. At the end of that night, he instructed the Daughter to accompany him on an excursion which started with him driving one of his inebriated friends home. After that he took the Daughter to an outside park where he again engaged in vaginal intercourse with her.
13. In describing these acts of vaginal intercourse, the Child told this Court that she experienced a lot of (physical) pain. The Crown also called medical evidence, which was clearly accepted by the jury, that the Child was examined and found to have vaginal tears which were consistent with having had vaginal intercourse.
14. The Accused was acquitted on Counts 6 and 7 which were charges of buggery and unlawful anal intercourse.
15. The offence of sexual exploitation while in a position of trust carries a maximum penalty of 25 years of imprisonment pursuant to section 182B(1)(aa) of the Criminal Code. This maxima increased from 20 years to 25 years by amendments which took effect on 18 July 2006, as observed by the Court of Appeal in Pernell Brangman v R[2019] Bda LR 93.
16. The maximum sentence for the offence of incest is 25 years imprisonment under section 191 of the...
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