REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Cr. A No. 10 of 2003 DOMINIQUE LONDON Appellant v THE STATE Respondent PANEL: L. Jones, J. A. Nelson, J. A. Mendonca, J. A. APPEARANCES: Mr. R. Cameron appeared on behalf of the Appellant Mr. D. Rampersad appeared on behalf of the Respondent Delivery Date: 22nd day of July, 2004 EXTEMPORE JUDGMENT Nelson, J. A. This is an appeal against a conviction and sentence for the crime of rape. The conviction took place on the 30th January, 2003, at the San Fernando Assizes before the Honourable Mr. Justice Baird and the appellant was sentenced to 30 years hard labour. The matter came before us this morning on an application for leave to appeal, and at the hearing before us today, counsel appointed by the Legal Aid and Advisory Authority, Mr. Cameron, indicated that his client, the applicant, wished to pursue his appeal since he did not accept Mr. Cameron's advice that there were no tenable grounds of appeal upon which he could pursue this matter. The Court consulted the appellant and the appellant sought permission to consult with Mr. Cameron, who had indicated his desire to withdraw from the matter. After this consultation, counsel indicated and the appellant confirmed that he did not wish to pursue the appeal on conviction but wished to pursue the appeal on sentence. Mr. Cameron was invited to address the Court on the matter of sentence. The facts of this matter need to be rehearsed in order to see whether this is a case in which the sentence of 30 years was excessive. On Saturday, 14th March, 1998, at about 7:30 p.m., the virtual complainant was at the Claxton Bay junction awaiting a taxi to travel to visit a friend at Spring Vale. She was at that time about 15 years old and while she was waiting at the junction, she was approached by the appellant. He spoke to her for some ten minutes and indicated that he was a good friend of her father's. The virtual complainant then went and sat on a bench nearby behind her and in front of the grocery. The appellant followed her and continued to converse with her. That lasted for about fifteen to twenty minutes. The virtual complainant then went back to the side of the road to wait for a taxi in order to travel along the Southern Main Road. The appellant followed her again and asked her to run an errand for him but she refused. The appellant persisted and reminded her that he and her father were good friends, and eventually she agreed. Having agreed, she boarded a taxi with him and alighted at Bamboo Trace where the appellant lived. The appellant entered his house and returned with some money and said that he had to go to his brother's house for the rest of the money, and the virtual complainant said that she would prefer to wait at the house but was eventually persuaded to accompany the appellant to his brother's house and they proceeded down a track towards what was said to be his brother's house. On the way, the appellant grabbed the virtual complainant by her collar and said, "Tonight, I want a little sex." The virtual complainant said no and started to scream. The appellant then began to choke her and commanded her to take off her clothes, but she refused. He forced her to the ground, removed her clothing, overpowered her and had sexual intercourse with her against her will. That was an ordeal that lasted about fifteen to twenty minutes. The virtual complainant then got up and started dressing, but was ordered to lie down again and she submitted and was raped for the second time; this second ordeal lasting about forty-five minutes. The proceedings seemed to have been interrupted by the presence of a dog coming down the track, and eventually the appellant ordered the virtual complainant to get dressed and said he was going to take her home. She refused; she said she would go home by herself. He snatched her by the hand and dragged her down the track to a point where there was a cashew tree which he said was his favourite cashew tree, and that he would take his last one there. That was an indication that she was to be raped a third time. She screamed and pleaded with him and attempted to run away, but the appellant chased her, there was a struggle, he choked her again and she fell unconscious. When she regained consciousness, the appellant had mounted her and had already had sexual intercourse with her for the third time. She struggled to shake him off and he choked her again and she again slipped into unconsciousness. Upon regaining consciousness, she found herself slung over his shoulder as he attempted to take her to his house. She arrived there and was ordered to bathe and change and was kept in the house until 3:00 a.m. in the morning when she was escorted to her home. On the 16th March, 1998, a report was made to the police and eventually investigations continued. She handed over the trousers and pants she was wearing and she was submitted to a medical examination by one Dr. Sankar Moonan, who found multiple abrasions and tenderness on both sides of the neck, abrasions to the midline and lower back, a tender swollen vagina and a bloody discharge from the vagina. The Forensic Science laboratory was asked to examine a vaginal swab taken by the doctor and they reported that human spermatozoa was identified on the swab and the clothing submitted. The virtual complainant spent six days at hospital. At the trial, which we are told was a retrial after the matter had been sent back for retrial by the Court of Appeal, the appellant had two basic defences, alibi and a complete denial of the offence. He said that on the date in question, he was at his home at Bamboo Trace, Claxton Bay, where he was in company with one Gertrude, his stepfather's companion. He said that the virtual complainant came to his house on that night in search of his brother Andre, but his brother was out. She was accompanied by one Simon and they both sat on a water tank in front of the house for about forty-five minutes. He said that he cooked and ate and subsequently retired for the evening until about 4:30 a.m. when his brother came home. The following morning at about 6 o'clock he said he went to his shop -- that is on the 16th, presumably – he went to his shop and was arrested by the police, who took him to the station where he was confronted by the virtual complainant who identified him and accused him of rape, which he denied. On those facts, the appellant was convicted by a jury and the learned judge had the task of sentencing. There was a plea in mitigation in which all that could be said for the appellant was said. It was pointed out that the appellant had in fact had seven previous convictions, one of them for indecent assault, the date of conviction being 3rd December, 1991; but all the others or most of the others were for robbery with aggravation. I don't recite all of them here, but suffice it to say they all occurred between 1991 and 1996, the convictions occurred between 1991 and 1996. And, indeed, in respect of the last conviction on the 23rd December, 1996, the appellant was sentenced to 5 years but was out on bail when this offence occurred. The learned judge did take into consideration all the relevant facts. He particularly was moved by the fact that the virtual complainant was at the time a 14-year-old (I think probably she was more correctly a 15-year- old school girl); by the nature and quality of the offence and the fact that the victim was tricked. He bore in mind that the girl was unconscious at the time of the third rape and that she had been treated to the most violent conduct in terms of being choked and being subdued. So, in fact, the judge referred to what he called the "malignity of the accused" and he said that all of that precluded compassion. He was particularly disturbed by the number of rapes and the fact that the third rape took place while she was unconscious, after she pleaded for mercy. We have listened to the plea in mitigation by Mr. Cameron. He sought to rely on the fact that the prisoner had been incarcerated since his arrest on 16th March, 1998. He drew to our attention that this was the second trial, the first trial having resulted in an appeal and a retrial on the order of the Court. He pointed out that the judge at the first trial had imposed a sentence of only 14 years, although he had then been apprised of the seven convictions I have referred to. He referred to the case of Sooklal v. The State and he mentioned in that case that there were three counts of indecent assault on children of 14 and 15, and there the sentence was not quite as severe as the present sentence. In our view, the case of Sooklal is not on all fours with the present case for the simple reason that none of the very aggravating factors in this case was present. In this case, as the judge quite rightly indicated, there was violence, violence in the form of the choking of the virtual complainant; the fact that the virtual complainant struggled; that she was forced to the ground; that she was unconscious, that she was raped while she was unconscious; and even after she had recovered consciousness she was again choked and again was thrown into unconsciousness a second time. She was held against her will as a prisoner from what I would estimate would have been from about 10 o'clock to 3 o'clock in the morning. These are indeed very aggravating circumstances, particularly the fact that she was only at the time 15 years old. Further, there is the aggravating fact that all of this took place by deceiving her and obtaining her confidence by means of a trick, a trick which resulted in very dastardly violence. This is an offence which took place while the appellant was on bail. On arrest he remained in jail on this charge and his previous convictions till January 7, 2003, and on this charge alone till conviction on January 30, 2003. As Mr. Rampersad for the State pointed out, committing an offence while on bail was an extremely aggravating factor. It is a crime of violence and the appellant has had a history of violent crime. He has shown over the years no attempt to show remorse. Indeed, after the first trial, he clearly had an opportunity to save the virtual complainant the ordeal of having to give evidence in public again about this very sorry incident, but he nonetheless, up to this morning, indicated that he would refuse the advice of his attorney and fight this matter until, eventually, wiser counsel prevailed and he sought only to resist the sentence. It seems to us that given the objects of sentencing, particularly deterrence, retribution and rehabilitation, all these aims can only be properly served in this case by a substantial custodial sentence. In those circumstances, we cannot see any way in which this sentence can be reduced. All factors have been taken into account and we are particularly concerned about the refusal of the advice of Mr. Cameron, who we must commend for observing the highest traditions of the Bar. We strongly commend him for his conduct of this matter. In all the circumstances then, this appeal is dismissed. The sentence of 30 years hard labour is confirmed and affirmed and is to run from today's date. L. Jones, Justice of Appeal. Rolston F. Nelson, Justice of Appeal. Allan Mendonca, Justice of Appeal.