R v O'Brien
| Jurisdiction | Bermuda |
| Judgment Date | 03 May 2019 |
| Date | 03 May 2019 |
| Docket Number | Criminal Jurisdiction 2018 No 29 |
| Court | Supreme Court (Bermuda) |
[2019] Bda LR 33
In The Supreme Court of Bermuda
Criminal Jurisdiction 2018 No 29
Ms K Swan and Ms M Sofianos for the Plaintiff
Mr A Warner for the Defendant
The following cases were referred to in the judgment:
R v Billam [1986] 1 All ER 985
Burgess v R [1987] Bda LR 14
Simmons v R [1988] Bda LR 8
R v Bell [1989] Bda LR 29
Simmons v R [1995] Bda LR 4
R v Forbes [2016] EWCA Crim 1388
Rape committed 30 years previously — Sentencing
JUDGMENT of Greaves J
1. The defendant was unanimously convicted after a trial by a jury on 7 February 2019, on an indictment for rape, said to have been committed about 30 years ago, between the 1 September and 31 October 1988. At the time of the alleged offence, the complainant was a 15 year old Portuguese schoolgirl and the defendant was a 23 year old young man engaged to be married to the complainant's 17 or 18 year old sister.
2. At the time of the offence, the old provisions of the Criminal Code Act 1907 were still in force, hence the charge for rape. Had the offence been prosecuted at the time, the likely charge might have been carnal knowledge, for which consent would not have been an issue, since the complainant was under age 16. However, that offence became statute barred after the passage of two years from the date of the event, hence the prosecution for rape, resulting in a defence of consent or reasonable belief. The penalty for rape at the time was 20 years imprisonment.
3. Since the repeal of the old provisions, the regime for sexual offences has been changed substantially under the new provisions.
4. The defendant has changed counsel since his conviction and was subject to a lengthily investigated presentencing report. His record was in the process of preparation for his appeal and is now complete. His new counsel needed time to study the record in order to properly prepare for mitigation at his sentencing. These together with other pressing court matters contributed to the delay in his sentencing.
5. It is not disputed that the two families had been very close for several years.
6. The complainant alleged that her Portuguese family were very strict. The girls were not allowed out alone with boys, nor could boys be allowed at their home when the parents or an adult were not there. These things were known to the defendant.
7. She said that on the night of the rape, she was upstairs in the bedroom she shared with her sister who was asleep. Her parents were not at home. She heard a knock at the door and went downstairs to investigate.
8. There, at the door, as she slightly opened it, she saw the defendant. He asked for her sister and she informed him she was upstairs asleep. She said the defendant then blocked the door, preventing her closing it, held onto her, and pushed her backwards into the living room. He got on top of her and raped her. She said she was unable to scream, as the sound would not emit her mouth as if someone had put a hand in her throat and ripped out her voice. She said she felt the pain of the intercourse and must have passed out. She was a virgin.
9. After the encounter, the defendant got up and left. She saw blood on the carpet and she got a cloth from the kitchen and scrubbed it up. She then went upstairs and washed up herself and went to bed. She told no one. She was afraid and ashamed.
10. She went to school and the defendant kept trying to speak to her. He came to the gate near the school, but she ignored him and demanded he leave her alone. Sometime after, she found out through a series of events at school, she was pregnant.
11. The defendant gave her a letter at some...
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