Michael J. Scott, Browne Scott, for the Appellant. On June 10, , the Appellant was charged with four counts of sexual assault while in a position of trust contrary to section B 1 a of the Criminal Code in respect of a young person, C. The allegations were that on two occasions, firstly between January 5 and 12, , he kissed C on the neck Count 1 , and secondly, on January 19, , he kissed the ear, neck and mouth respectively of C Counts 2β4.
C was at all material times 11 years old. Judgment was delivered on March 3, w hen the Appellant was found guilty on all four counts. On May 15, , he was sentenced to 9 months imprisonment on Count 1 and 18 months' imprisonment concurrent on each of Counts 2 to 4, followed by 2 years' Probation including a condition that he should not have supervised care of any.
The Appellant appealed to this Court against both conviction and sentence. In a judgment delivered on November 10, , I dismissed the Appellant's appeal against conviction. Following a hearing on December 10, , I allowed the appeal against sentence by setting aside the cumulative sentence of 18 months' imprisonment for a series of offences committed on two occasions and which might well have been charged as two rather than four counts , and substituted a cumulative sentence of 12 months' imprisonment.
The 2 years' probation ordered to follow that custodial sentence was not disturbed. I now give reasons for that decision. The following extracts form the sentencing remarks summarise the basis on which the Learned Magistrate imposed the sentences which he imposed:. The most aggravating aspect being the attempt to put his tongue into the boy's mouth and leaving saliva or wetting the boy's mouth.
In my judgment these facts together with the prevalence of these offences in this Court require the Court [to] depart from the range β¦. Clarke who did not appear below conceded that the Prosecution had encouraged the Learned Magistrate to effectively ignore the Guidelines issued by me administratively on December 2, H owever, she justified this by reference to their non-binding character, a point vindicated by paragraph 3 of the Guidelines themselves:.
