R v Martin (Sentence)
| Jurisdiction | Bermuda |
| Judgment Date | 11 April 2023 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Criminal Jurisdiction 2021 No 25 |
[2023] Bda LR 34
Criminal Jurisdiction 2021 No 25
In The Supreme Court of Bermuda
Sexual exploitation of a young person while in a position of trust — Showing offensive material to a child
The following cases were referred to in the judgment:
Brangman v R [2019] Bda LR 93
AB v R [2017] Bda LR 60
Caines v R [2010] Bda LR 18
Reid v R [2008] Bda LR 71
R v Rogers [2015] Bda LR 50
Ms C Clarke for the Crown
Ms E Christopher for the Defendant
RULING of Subair Williams J
1. The Accused, Mr Maleke Martin, appears before the Court for sentence, having been convicted by the unanimous verdict of a jury of 12 on 9 December 2022, to two counts of sexual exploitation of a young person while in a position of trust and one count of showing the same child offensive material.
2. His sentence hearing was held in this Court on Monday 27 March after which I reserved to provide this ruling.
3. The Complainant in this matter is now a 9 year old female who was sexually exploited by the Accused when she was 6 going on 7 years of age. At that time the Accused was 23 years old. I will refer to the Complainant as “the Child”.
4. The Accused was a 19 year old when he first met the Child who at that time was all but 3 maybe 4 years old. He and the Child's mother “the Mother” formed what she, the Mother, perceived to be a close and sincere friendship, so much so that they came to cohabit at her residence. This living arrangement was also motivated by the Mother's need for support and assistance following a serious road traffic accident which left her wheel-chair bound for an extended period of time.
5. So, in August 2020, the Accused was living at the Mother's house (rent-free) with her spouse and the Child. As the Accused himself told this Court during his evidence on the stand, this cohabitation took on the form of family dinners at the table and family time in the main upper part of the house above the Accused's living quarters which was at the base of a stairwell where the laundry machines were located.
6. However, as time progressed, the Defendant started withdrawing more and more from the family unit and spending time downstairs in his own living space. At trial, when the DPP questioned Mr Martin during cross examination as to why that was, he said:
“I, myself, personally, like to be alone—so I usually go home, play play-station—don't come back outside”
7. However, despite his claim to want to be alone, the Child was sleeping in his bed with him every weekend. Mr Martin himself told this Court under oath:
“On the weekend she could stay as long as she wants- she would spend pretty much all day…If I was there- I was on YouTube on my phone watching Netflix- sometimes she would come down and play PlayStation”
8. During this entire period the Mother was vulnerable in that she was in a wheelchair and so was unable to climb down those steps to get to Mr Martin's living space. In this way, the Defendant was isolating and grooming this 6 year old Child in the lead up to the sexual acts which he later perpetrated on her.
9. Additionally, Mr Martin took advantage of opportunities to be in the Child's presence when she was naked and bathing or getting dressed. This emboldened him to show her the pornographic footage displayed on his phone. In recounting this, the Child told this Court that the Accused held the phone while she saw “boobs” a vagina and “a boy shaking his noodle”. The showing of this material was deliberate and calculative as the Child told this Court that Mr Martin instructed her not to tell anyone about this. Again, this occurred while the Defendant was alone downstairs in his living space with the Child who was unprotected by her immobile mother or any other parent or adult.
10. So, the Child slept in the Defendant's bed with him every weekend. She would sleep in nothing but her panties. This was a 6 year old girl sleeping with a 23 year old man.
11. The sexual act to which Count 1 refers is as follows: the Defendant incited the Child to touch his penis with her hands which were covered in socks. She told this Court that she did so as his “noodle” “dribbled”.
12. Not satisfied to leave it there, on that same occasion, the Accused placed his penis in the middle of the Child's vagina. This is the offence of sexual exploitation under Count 2. In trying to provide some detail, during the video recorded evidence, the Child said “he had like a hump on his back” and she was laying down on his bed as this occurred. When asked how this made her feel, the Child replied “it felt weird” and she shook her head as if to shrug away the image and memory of it.
13. The offence of sexual exploitation while in a position of trust carries a maximum penalty of twenty-five (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.
14. The maximum sentence for the offence of showing offensive material to a child is 10 years imprisonment under section 182C.
15. The Court of Appeal in AB v R[2017] Bda LR 60 … In that case the Appellant, who had no previous record, was convicted after trial by jury on two counts of sexual exploitation on his daughter of 7–8 years in age...
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