Miller v Crockwell [2012] SC (Bda) 47 (7 September 2012)
The Respondent, Crockwell, had been convicted of sexually exploiting a twelve year old girl. The maximum sentence was twenty years in prison if convicted in the Supreme Court, or five years if convicted in the Magistrates' Court. Crockwell had opted for the Magistrates' Court.
Crockwell was given a custodial sentence of fifteen months by Magistrate Khamisi Tokunbo, suspended for two years. The appeal was on the grounds that the sentence was manifestly inadequate.
Kawaley CJ said that defendants under the age of 21 are able to claim a special defence that is not available to older offenders, namely that he believed the complainant was older than 14. Obviously, if the defence succeeds then the defendant will be found not guilty. However, the existence of the defence means that the offence is not seen as such a grave one if committed by an offender under the age of 21 than if it were committed by an older offender [41]-[45].
It follows that the Magistrate was not dealing with a case where an immediate custodial sentence was essential or the usual penalty [46]. Similar sentences had been given in the past.
There were special circumstances to justify a suspended sentence, namely that the offence was of a low gravity, he was 20 years old at the time of the offence, there was a low risk of reoffending, and he had family and church support and risked losing his job. Although he had not pleaded guilty, his defence was not based on making the victim out to be a liar, thereby increasing trauma to the victim [48]-[49].
Kawaley CJ drew support from Bermuda Court of Appeal cases, such as Kirby v Durham [1989], which stated that the age of a defendant or the fact that he is a first time offender or unlikely to reoffend, might be "exceptional circumstances" which might justify a suspended sentence [50].
The Magistrate had erred in law by refusing to hear the victim impact statement [60], although he should not be overly cricitised for doing so as the Prosecution had delayed in serving it, such that it interfered with effective case management on a busy court day.
Nonetheless, the victim statement revealed what might reasonably have been expected in an incident such as this. The contents were not such to render the sentence manifestly inadequate [62]. It was not the Prosecution's submission that the failure to consider should mean that the defendant was re-sentenced. Stretching the matter out further would not be attractive for either the victim or the offender [63].
The public humiliation received by the offender will serve as a further deterrent over and above the sentence received [63].
The judge reported the victim's statement at [64] in order to inspire other victims of similar offences to come forward and to educate the offender and other perpetrators of such crimes about the impact on the victim.
Some guidelines were set out for future sentencing:
the only appropriate sentence in the Magistrates' Court for an adult offender with no previous convictions, for exploitation of a young person, is an immediate custodial sentence [87]. The starting point would be a sentence of around 18 months, which would be increased or decreased, depending on the circumstances.
The UK sentencing guidelines are persuasive on considering aggravating and mitigating factors [84].
Kawaley CJ also raised a couple of questions which might arise in the future:
Should the special defence given to defendants under the age of 21 (that they believed the child was over the age of 14) in fact only be available to defendants under the age of 18, when read in line with the Age of Majority Act 2001, which changed all reference to the age of 21 to age 18 in Acts of Parliament? [44]
Does the Constitutional requirement that the Courts be independent mean that Magistrates cannot be summarily removed from office? [73]
The Respondent, Crockwell, had been convicted of sexually exploiting a twelve year old girl. The maximum sentence was twenty years in prison if convicted in the Supreme Court, or five years if convicted in the Magistrates' Court. Crockwell had opted for the Magistrates' Court.
Crockwell was given a custodial sentence of fifteen months by Magistrate Khamisi Tokunbo, suspended for two years. The appeal was on the grounds that the sentence was manifestly inadequate.
Kawaley CJ said that defendants under the age of 21 are able to claim a special defence that is not available to older offenders, namely that he believed the complainant was older than 14. Obviously, if the defence succeeds then the defendant will be found not guilty. However, the existence of the defence means that the offence is not seen as such a grave one if committed by an offender under the age of 21 than if it were committed by an older offender [41]-[45].
It follows that the Magistrate was not dealing with a case where an immediate custodial sentence was essential or the usual penalty [46]. Similar sentences had been given in the past.
There were special circumstances to justify a suspended sentence, namely that the offence was of a low gravity, he was 20 years old at the time of the offence, there was a low risk of reoffending, and he had family and church support and risked losing his job. Although he had not pleaded guilty, his defence was not based on making the victim out to be a liar, thereby increasing trauma to the victim [48]-[49].
Kawaley CJ drew support from Bermuda Court of Appeal cases, such as Kirby v Durham [1989], which stated that the age of a defendant or the fact that he is a first time offender or unlikely to reoffend, might be "exceptional circumstances" which might justify a suspended sentence [50].
The Magistrate had erred in law by refusing to hear the victim impact statement [60], although he should not be overly cricitised for doing so as the Prosecution had delayed in serving it, such that it interfered with effective case management on a busy court day.
Nonetheless, the victim statement revealed what might reasonably have been expected in an incident such as this. The contents were not such to render the sentence manifestly inadequate [62]. It was not the Prosecution's submission that the failure to consider should mean that the defendant was re-sentenced. Stretching the matter out further would not be attractive for either the victim or the offender [63].
The public humiliation received by the offender will serve as a further deterrent over and above the sentence received [63].
The judge reported the victim's statement at [64] in order to inspire other victims of similar offences to come forward and to educate the offender and other perpetrators of such crimes about the impact on the victim.
Some guidelines were set out for future sentencing:
the only appropriate sentence in the Magistrates' Court for an adult offender with no previous convictions, for exploitation of a young person, is an immediate custodial sentence [87]. The starting point would be a sentence of around 18 months, which would be increased or decreased, depending on the circumstances.
The UK sentencing guidelines are persuasive on considering aggravating and mitigating factors [84].
Kawaley CJ also raised a couple of questions which might arise in the future:
Should the special defence given to defendants under the age of 21 (that they believed the child was over the age of 14) in fact only be available to defendants under the age of 18, when read in line with the Age of Majority Act 2001, which changed all reference to the age of 21 to age 18 in Acts of Parliament? [44]
Does the Constitutional requirement that the Courts be independent mean that Magistrates cannot be summarily removed from office? [73]
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