Man sentenced to five years for indecent assault

(CMR) A man accused of assaulting a woman in her own home was sentenced to five years in prison after he was unanimously found guilty of indecent assault in the Cayman Islands Grand Court.

According to a judgment published last week, Orville Anthony McPherson was convicted after trial on an indictment that contained a single count alleging the offense of Attempted Rape contrary to section 127(1) of the Penal Code (2022 5 Revision). However, the prosecution was granted leave to add a second and alternative count to the indictment alleging the offense of Indecent Assault, contrary to section 132(1) of the Penal 7 Code (2022 Revision). McPherson was acquitted of a more serious offense of attempted rape.

According to court documents, McPherson and the victim were known to each other. On the date of the incident, while at the victim’s home, he attempted to kiss her as they sat on a couch in her living room. The victim resisted these advances, and McPherson went to the kitchen area and picked up a knife. He subsequently forced the victim into her bedroom. By this time, McPherson was no longer in possession of the knife. He held one of the victim’s arms behind her back and had one hand around her neck while forcing her into the bedroom.

Despite her resistance, he forced her into the bedroom and held her against the side of her bed, where he assaulted her. His attempts to remove her underwear were unsuccessful, but the underwear was  ripped in the struggle to take it off. The victim eventually pushed him off, and he left the bedroom. The victim made a report of the incident later that day, and McPherson was subsequently arrested for the offenses before the court.

The maximum sentence for an offense of Indecent Assault, contrary to section 132(1) of the Penal Code (2022 Revision), is one of ten years of imprisonment.  The crown said the harm should be at Category 1 based on threats of violence made, submitting that the defendant made a repeated threat to kill the victim after having picked up a knife from the kitchen area. However, the Crown conceded that the defendant was not in possession of the knife at the time of the indecent assault; however, it was submitted that the knife would doubtless have been operating on the mind of the victim at that time.

Aggravating factors put forward by the Crown included that the offense took place in the victim’s own home, a place where she was entitled to feel safe, and the use of a weapon or other item to frighten or injure.

Mitigating factors considered included that McPherson had no previous convictions and had no history of sexual offending, and had not faced allegations of this nature before. The defense also argued that the offense was impulsive and the likelihood of reoffending was low.

Presiding Judge Justice Marlene Carter decided it was a Category 2B offense, which has a starting point of 4 years in custody, with a sentencing range of 3-7 years. Adopting a starting point of 4 years and taking into account the aggravating and mitigating factors, Justice Carter increased the starting point to 5 years in custody.

Justice Carter said, “There is some ambiguity in the evidence as to whether the threats were made to the victim or whether the defendant was repeating the victim’s words. In any event, I do not find that evidence sufficient to cause the matter to be elevated to a Category 1 Harm offense in all the circumstances.”

“I find this to be the appropriate sentence in this case. For the avoidance of doubt, this sentence of 5 years reflects the court’s finding that the peculiar circumstance of a heightened degree of physicality merits an upward movement within the range of a 2B offense,” Justice Marlene Carter stated in the written judgment.

The judge ruled that time in custody on remand before trial be deducted from the sentence and that there is a further reduction in sentence of 2 months for time on curfew with an electronic monitor.