A man who got a 12-year-old to give him oral sex should have been jailed rather than handed a 15-month suspended sentence, a prosecutor argued.
Susan Mulligan said of Joshua Crockwell, who was a 20-year-old firefighter at the time of the offence: “A suspended sentence was inappropriate in the circumstances as found by the trial judge.
“It was manifestly inadequate — there were no exceptional circumstances that could justify the suspension of the jail sentence imposed.”
The maximum punishment Crockwell could have been handed during the sentencing at Magistrates’ Court in May was five years in prison.
Defence lawyer Elizabeth Christopher insisted it would have been wrong to send to Crockwell to jail.
She intends to argue later in the appeal that he should never have been convicted by Magistrate Khamisi Tokunbo of sexually exploiting the girl at all.
Opening the appeal for the Crown yesterday, Ms Mulligan said the 15-month sentence length was right, but should not have been suspended for two years.
She recapped on the case as she asked the Chief Justice, Ian Kawaley, to find that the Magistrate was too lenient.
The trial heard how Crockwell met the child when she was playing outside her apartment with friends of a similar age. According to Ms Mulligan, the pair got into conversation because Crockwell was attracted to the girl’s friend, who was 13.
Ms Mulligan said this eventually led to the victim getting in contact with Crockwell and arranging to meet him at a school. During this meeting, Crockwell asked the girl to give him oral sex and tried to make her do so against her will.
Crockwell told his trial the victim was trying to act older than she was and wore provocative clothing. He maintains his defence that he did not know how young she was.
However, Ms Mulligan said Mr Tokunbo found as a fact that Crockwell knew the girl was 12 years old, and rejected Crockwell’s suggestions that the victim acted provocatively.
The girl was upset by what happened and eventually told her stepmother, who called the police. She cannot be identified in news reports.
Ms Mulligan acknowledged that the Magistrate considered various mitigating factors during the sentencing, including Crockwell’s young age, the support he had from his church and family and his willingness to seek counselling.
He was also classified as being at low risk of reoffending, and lost his job as a firefighter.
However, the prosecutor said none of those things amounted to “special circumstances” that could justify a suspended sentence.
She told the Chief Justice there is nothing to show that Crockwell is mentally ill or a paedophile.
She added that a jail sentence should have been imposed to stop similar crimes being committed by others and acknowledge the “serious harm” caused to the victim.
That harm was outlined in a statement prosecutor Tawana Tannock tried to hand to Mr Tokunbo at the last minute during the sentencing proceedings. The victim said she suffered nightmares afterwards, felt scared and needed counselling.
The Magistrate refused to accept the statement because he said it was too late. Ms Mulligan admitted that it should have been produced earlier, but suggested the Magistrate should still have taken it into consideration.
“It was significant because it’s not just the defendant’s interests at stake,” she said.
Crockwell’s lawyer Ms Christopher said it was not fair to criticise the Magistrate for refusing to consider the report at such a late stage.
She also backed Mr Tokunbo in opting for a non custodial sentence. She said in her view, community punishment would have been more appropriate than a suspended sentence.
She added that “exceptional circumstances” were not required to be proved in this case, even though “it was taken as a given in this case that they do apply”.
She said the reasons the Magistrate gave for a non custodial sentence were “good reasons”.
The Chief Justice drew Ms Christopher’s attention to UK law which suggests an immediate custodial sentence is appropriate in such cases.
Ms Christopher stated that she is unaware of any similar cases in Bermuda where the defendant was aged under 21 and got an immediate jail term.
Mr Justice Kawaley suggested: “Perhaps the approach that has been taken in the past is simply wrong and old fashioned and not recognising the importance of children’s rights?”
The appeal is set to continue next Friday, with Ms Christopher setting out reasons why she says Crockwell should never have been found guilty.