Court explains reason for denying appeal against rape, abduction
THE Court of Appeal has given its reasons for denying the appeal of a man who was charged and convicted for the 2011 abduction and rape at gunpoint of a woman from the waterfront in downtown Kingston.
The Appeal Court in November last year ruled that the 15 years’ imprisonment for the offence of illegal possession of firearm and the sentence of five years’ imprisonment for the offence of forcible abduction, as handed down by a Supreme Court Judge in 2013, should remain intact. However, it said it was allowing the appeal against the sentence in part and indicated that instead of 25 years’ imprisonment for the offence of rape as was then decided, the stipulation would now be that the convict, David Gray, serves 15 years before being eligible for parole. It did not provide the reasons for that ruling and promised to do so later.
According to details of the incident shared in court, in November of 2011, sometime after 6:00 pm, the complainant was sitting at the waterfront in downtown Kingston listening to music using her earphones. Whilst there she observed three men, including Gray, walking towards her. They stopped in close proximity to her and Gray engaged her in conversation telling her that she looked like the person who sent his brother to prison. He then took up her handbag which was on the wall beside her. When she attempted to pull the bag away from him he lifted his shirt and showed her a gun in his waistband.
The victim said Gray then held onto her hand and forced her to walk with him some distance away from where she had been sitting. When they stopped, one of the two men who was with Gray asked her for money. She gave it to him and he left. The complainant and Gray then sat on a wall by the waterfront for about 10 minutes. When the man who had asked for the money returned, Gray instructed the complainant to get up and they walked for about 30 minutes. When they arrived at a bushy area he ordered her to remove her clothes. When she refused to comply he removed the gun from his waist and gave it to one of the men, who were standing nearby, pulled down her sweatpants and had sexual intercourse with her without her consent.
The court was told that Gray afterwards took her phone from her bag, used it to dial his number and told her that he was going to call her. He also told her that if she went to the police he would kill her.
The matter was reported to the police approximately three days after. Later that month the victim saw Gray at a particular location and made a report to an officer who was nearby. The appellant was apprehended, arrested and charged with the offences of illegal possession of firearm, forcible abduction and rape. On November 22, 2013, after a trial before a judge alone in the High Court division of the Gun Court for the parish of Kingston, Gray was found guilty for illegal possession of firearm, forcible abduction and rape. He was sentenced to 15 years for illegal possession of firearm, five years for forcible abduction and 25 years for rape. The sentences were to run concurrently.
Last week the Appeal Court, in addressing its decision in relation to the sentence for rape, said, as argued by the attorney for Gray, the “learned trial judge, in sentencing the appellant to 25 years, failed to comply with Section 6 (2) which requires him to specify a period that the appellant should serve before parole”. It added: “The Crown, quite rightly, conceded on this point. That specification is mandatory. He therefore erred as a matter of law. Section 6 (2) of the Act also stipulates that the period before which a person convicted of the offence becomes eligible for parole should not be less than 10 years,” the panel said.
“Our final orders, therefore, are: the application for permission to appeal conviction is refused and the conviction is affirmed. The appeal against sentence is allowed in part. The sentence of 15 years’ imprisonment for the offence of illegal possession of firearm is affirmed. The sentence of five years’ imprisonment for the offence of forcible abduction is affirmed,” the ruling said.
The sentences are to run concurrently and are being treated as having started on November 22, 2013.
According to the court’s records, the trial judge in sentencing Gray in 2013 said “When I look at your criminal record I see where you were sentenced to five years’ imprisonment at hard labour for possession of firearm in December 2005 for that same time for the offence of rape. You were given a prison sentence of seven years at hard labour to run concurrently with the possession of firearm offence and by the 18th November 2011 you were at it again…i have a duty to this society. I am going to sentence you on the basis of principles now.
“Protection of the society... that’s one deterrence; I am not going to even go the route of retribution and I am not going to use the word reformation. You believe in Christianity? Wherever you go, you go and preach the word of God because you will be there for a long time. A woman has a right to say no to any man and her body should not be violated under the influence or the fear of a gun or other men. There is no freedom for anybody to go and sit down at the water park and enjoy the evening by himself/herself, not even that freedom people can enjoy anymore. I am sorry, you are going to prison for the offence of rape for 25 years and for the illegal possession of firearm for 15 years, and for abduction five years – and the sentences are to run concurrently. You didn’t learn your lesson. You had an opportunity; you went to prison for the very same offences and you are back out doing the same thing with gun. Twenty-five years in prison,” the judge told Gray then.