Thread by @jovanthony

A sex worker raped, a 'gratuitously speculative' Jamaican judge and a fact I didn't know -
judges have the power to issue a 'certificate' to support appeal of a person they felt served injustice by imposition of mandatory minimum sentence courtofappeal.gov.jm/sites/default/…

Discovered that bit of law in Sept 23 decision of Court of Appeal in case brought by Paul Haughton. In March 2017, Haughton was given mandatory minimum 15yrs for raping a sex worker. Also sentenced to 3yrs for robbery w/violence; 3yrs for unlawful wounding.

But trial judge Daye said under circumstances, mandatory minimum for rape was unjust & 7yrs would have been appropriate. He passed sentenced and issued certificate which Haughton used to appeal. CA refused permission to appeal conviction, allowed it for sentence

Trial judge described woman as "sex worker" after she told court she “solicit...[m]oney for sex”. In Jan 2013, she met Haughton at a nightclub. They negotiated $5,000 sexual service. Man paid $1,000 on spot, promised rest in taxi to transport them to house for transaction.

Terms agreed. They left in taxi. On journey, the woman kept asking for balance. 5 mins in ride, driver stopped car on instruction of Haughton. Both exited, car left. Woman followed Haughton up hill thinking they're heading to house.

Haughton became loud, roughed up woman; used stone to beat her in face; tore off her clothes; kicked her to ground; she fell on back. Haughton came over her; she begged him unsuccessfully to use condom & not to ejaculate in her. She reported matter to police. Man charged.

Asked in court y she said Haughton raped her, she said: “Because he had sex with me without my permission. If he didn’t have the money and he wanted some sex, I would have obliged.

She continued: "But the main fact, the reason why I am so hurt, because him actually enter me without a condom. And the next thing, he actually discharge inside of me. I didn’t like that; that’s why I was very hurt.”

Haughton told court: he & woman agreed $2,000 after which they had consensual intercourse in abandoned building. Used condom, complainant requested him to do. After he paid $2,000, woman asked him for $2,000 more, but he refused. Jury found Haughton guilty.

Judge: There is no excuse to have sexual intercourse without her consent, but there are circumstances which caused a man in your position to misjudge and go beyond her request to have sexual intercourse, but not without the use of a condom, in her case.

On the certificate to support Haughton's appeal, the judge wrote:
1. The offence occurred in circumstances where there was a willing transaction entered into by the complainant and the accused. There was no force or violence at the time.

Judge: 2. The accused may have misjudged the actions of the complainant. He did not go to the place of offence with any weapon such as a knife or even an imitation firearm. It was a stone he used to injury [sic] the complainant

Judge 3: social enquiry report shows that the personal early life of [sic] accused may have limited his approach to conflict resolution and disagreement in interpersonal relationship. Also his mental reason
[sic] may have been affected by consumption of alcohol

Court of Appeal decision: Seems to us respectfully most factors which the judge took into account related to matters which, by their verdict, the jury had already resolved against Haughton

Court of Appeal: best example of this is
the judge’s repeated reference to the possibility that
the appellant, in his interaction with the complainant, might have “misjudged the situation
.

Court: By this remark, we take the judge to mean
that the appellant might have assumed that the complainant would not have had any objection to him having sexual intercourse with her despite the fact that he had not fulfilled the terms of payment

Court: But this was, of course, completely contrary to the appellant’s defence, from which no question of
mistake or misunderstanding could possibly have arisen.
.

Court: It was therefore a purely gratuitous speculation
on an issue which the judge had already – correctly - left specifically to the jury for their consideration as a matter affecting the appellant’s guilt or innocence

On issue of time spent, court was able to revise sentence since case came to it through use of the certificate. Recognising time spent before trial ended in 2017, the Court of Appeal set aside the 15 years and imposed of 14 years and 8 months’ imprisonment

The law governing the granting of certificates: Section 42K of the Criminal Justice (Administration) Act

japarliament.gov.jm/attachments/ar…