The Queen v David Brandt
| Jurisdiction | Montserrat |
| Judge | John J |
| Judgment Date | 19 July 2021 |
| Neutral Citation | MS 2021 HC 13 |
| Docket Number | CASE MNIHCR 2019/0008 |
| Court | High Court (Montserrat) |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE MNIHCR 2019/0008
Ms. Anesta Weekes QC with Mr. Oris Sullivan for the Crown.
Mr David Brandt the defendant in person.
John J (AG): On 30 th June 2021 following a trial before a judge and jury the defendant David Brandt an attomey-at-law was found guilty by a 7–2 majority verdict of sexual exploitation of persons under the age of 18 and perverting the course of justice. The trial lasted 5 weeks.
The indictment preferred by the Director of Public Prosecutions (DPP) on 25 th May 2021 contained eight (8) counts namely:
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i. Dealing in people under 18 for Sexual Exploitation contrary to section 141 (1)(d) of the Penal Code, Cap 4.02 (as amended by SRO 7 of 2010)
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ii. Dealing in people under 18 for Sexual Exploitation contrary to section 141(1)(a) of the Penal Code, Cap 4.02 (as amended)
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iii. Dealing in people under 18 for Sexual Exploitation contrary to section 141 (1)(a) of the Penal Code, Cap 4.02 (as amended)
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iv. Dealing in people under 18 for Sexual Exploitation contrary to section 141 (1)(d) of the Penal Code, Cap 4.02 (as amended)
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v. Dealing in people under 18 for Sexual Exploitation contrary to section 141 (1)(a) of the Penal Code, Cap 4.02 (as amended)
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vi. Dealing in people under 18 for Sexual Exploitation contrary to section 141 (1)(a) of the Penal Code, Cap 4.02 (as amended)
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vii. Dealing in people under 18 for Sexual Exploitation contrary to section 141(1)(a) of the Penal Code Cap 4.02 (as amended)
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viii. Doing an act tending and intended to pervert the course of Public Justice contrary to Common Law.
Summary of factual background
Between the period October 2010 through June 2016, the defendant engaged in sexual activities with girls under the age of 18 (13–17 years old). Such activities included oral and vaginal sex in the defendant's law office as well as requesting of them and receiving still and moving images of some of the young girls' breasts and genitalia. He also entered deals with some of the girls to bring other young girls for him to engage in sexual relations with them. The defendant paid some of the girls in cash and sometimes by western union money transfers. Between January 2018 and June 2018 the defendant, while on bail, instructed one of the victims not to speak to the police about the impending criminal trial and transferred money to her through a third party. This was a clear breach of one of the bail conditions imposed on him.
The courts have always maintained that the most difficult and controversial area for the trial judge is fitting the punishment to the crime committed. Yet, all Judges would agree that sentencing is perhaps the most difficult area of their work in the criminal courts and this difficulty is not made any easier when Judges have a wide discretion available to them. A compendium of Sentencing Guidelines of the Eastern Caribbean Supreme Court for Sexual Offences was re-issued in April 2021. It deals with a range of sexual offences but does not address sexual exploitation of persons under eighteen years of age.
The court will nevertheless follow the steps set out in the Sentencing Guideline of the Eastern Caribbean Supreme Court with each relevant step being identified to the offender before sentence is passed.
The first step will be the establishment of the starting point for the offence. In order to arrive at a starting point the seriousness of the offence and the harm to the victims by the offence are paramount. The second stage is to assess the seriousness of the offence by reference to several factors example disparity of age, abuse of position of trust, significant degree of planning including grooming or enticement. Having considered the level of seriousness the court must now find an appropriate starting point. Once the starting point has been established the court will go to the next stage which is considering aggravating and mitigating factors of the offence and adjust upwards or downwards as the case may be. The court will always give credit for any time served on remand.
With those factors uppermost in mind I now consider some general principles. In the case of Desmond Baptiste and Others v The Queen Crim. App. No. 8 of 2003. Byron CJ (as he then was) referred to the Sentencing Act in Australia which espouses comprehensive and useful goals that sentencing is supposed to fulfill. Section 5(1) of the Act sets out the only purposes for which a sentence may be imposed are:
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i. to punish the offender to an extent and in a manner which is just in all the circumstances; or
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ii. to deter the offender or other persons from committing offences of the same or a similar character; or
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iii. to establish conditions within which it is considered by the Court that rehabilitation of the offender may be facilitated; or
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iv. to manifest a denunciation by the Court of the type of conduct in which the offender is engaged; or
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v. to protect the community from the offender; or
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vi. a combination of two or more of those purposes.”
In the same case Byron CJ said at paragraph 29:
“As to the fact that the offender was committing the crime for the first time, it seems to us that the importance of this circumstance should be left to the discretion of the sentencer as a matter that is to be taken into account with all other mitigating circumstances of the offence. It must be stressed though that the more serious the offence, the less relevant will be the circumstance.”
The learned Chief Justice then referred to Turner v The Queen (1975) 61 Crim App Rep. 67 at page 91, a case of armed robbery, where Lord Lane, CJ stated;
“the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the Court is dealing with cases of this gravity. Conversely, the lack of a criminal record would be a powerful mitigating factor where the offence is of an insubstantial nature.”
A good starting point in addressing the general principles of sentencing is the dictum of Lawton L.J. in R v Sargeant 60 Crim App R 74 at 77 where he said:
“Society through the courts must show its abhorrence of particular types of crimes. They do not have to reflect public opinion but must not disregard it. The only way the courts can show this is by the sentences they pass”.
The classical principles of sentencing can be summed up in four words: retribution, deterrence, prevention and rehabilitation and it is the duty of the court upon which the responsibility lies to pass sentence to have regard to these four principles. This can only be achieved by applying the principles to the facts of the case to see which of them has greatest importance in the case in which the sentencing is being carried out.
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▪ Retribution: This is where the penalty imposed is in response to the offence and reflects society's outrage towards the offence committed.
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▪ Deterrence: (Both general and specific) With the general deterrence the penalty is imposed in order to deter other persons in the general society and to promote social order. Specific deterrence on the other hand is designed to prevent the particular offender from repeating the crime in the future.
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▪ Rehabilitation: This principle suggests that a sentence should assist in rehabilitating the offender so that he can cease to be a threat to society and in turn play a positive role in the future.
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▪ Prevention: The aim here is to protect society from those who persist in high rates of criminality. For some offenders, the sound of the shutting iron cell door may have a deterrent effect. Some, however, never learn lessons from their incarcerations and the only way of curbing their criminality is through protracted sentences whose objective is to keep them away from society. Such sentences are, however, more suitable for repeat offenders.
It is now generally accepted that a plea of guilty attracts a significant reduction in the sentence to be imposed, usually one-third of the sentence. As Byron C.J said in Desmond Baptiste v The Queen (supra) at paragraph 28:
“There are sound public policy reasons for this. The criminal justice system benefits from genuine guilty pleas. Such pleas spare the judge, the jury and witnesses the stress and rigours of a full trial. The state saves both time and money.”
Having said that the court wants to make it abundantly clear that it is the constitutional right of an accused person to plead not guilty if he so wishes and he will not be penalized further if at the end of the day the jury returns a verdict of guilty.
Matters for consideration for an appropriate sentence in this case
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i. The offences are of a serious nature. They involve sexual exploitation of young girls between the ages 13–15
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ii. Offences of this nature usually result in long term emotional and psychological harm to the victim.
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iii. The defendant at the time of the commission of these offences was already in his late 60s – 70s.
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iv. He once held one of the highest Public Offices in the island. He was the Chief Minister of Montserrat from 1997 – 2001. Additionally, he has been a practicing Attomey-at-law for a period in excess of forty years. He is also a Notary Public in Montserrat, an Office to which the recipient is appointed by the Chief Justice.
Perverting the course of justice:
By their verdict the jury accepted the evidence of the Crown's witness that the defendant used SH as the conduit to get to one of the witnesses in the case and to advise that witness not to speak to the police. He paid both SH and the witness. The defendant's actions can only have been to prevent the potential witness from testifying against him in his impending trial. It is a common law offence and there is no fixed penalty.
Mitigation Plea by the defendant
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