Agard v The Queen

• Jurisdiction: Caribbean States
• Judge: Saunders, J.,Anderson, J.,Rajnauth-Lee, J.
• Judgment Date: 22 December 2016
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application No. BBCR 2016/03; BB Criminal Appeal No. 5 of 2012
• Date: 22 December 2016

Caribbean Court of Justice

Saunders, J. CCJ; Anderson, J. CCJ; Rajnauth-Lee, J. CCJ

CCJ Application No. BBCR 2016/03; BB Criminal Appeal No. 5 of 2012

Agard

and

The Queen

Appearances

Ms. Kristin C. A. Turton and Mr. Devon A. Jones for the applicant

Mr. Elwood Watts and Ms. Krystal C. Delaney for the respondent

Criminal practice and procedure - Manslaughter — Sentencing — Appeal against sentence — Whether the trail judge erred in sentencing the accused — Directions in Romeo DaCosta Hall v. The Queen [2010] CCJ 6 (AJ) were faithfully considered by the trial judge — Application for an extension of time — Whether the application for an extension of time to appeal should be granted — No cogent explanation for the failure to comply with Rule 5.4 of the Caribbean Court of Justice (Appellate Jurisdiction) Rules 2015 given — Application for special leave to appeal — Whether the application for special leave to appeal should be granted — No arguable case was made out when the Court examined the proposed grounds of appeal and there were no exceptional circumstances — Reversing the decision in Romeo DaCosta Hall v. The Queen [2010] CCJ 6 (AJ) — Applications for time to appeal dismissed.

THE APPLICATIONS BEFORE THE COURT

1 Yuri Fidel Agard was convicted of manslaughter in 2012 and sentenced to a term of imprisonment of 7 years, 247 days. He appealed his sentence alleging that it was excessive. The appeal was dismissed on 14th March, 2016. He then applied for a) special leave to appeal to this Court, b) permission to extend the time for seeking special leave, and c) leave to appeal as a poor person.

2 Agard's conviction resulted from a physical altercation that occurred on 26th March, 2006 at the Le Club nightclub in Bridgetown. Two brothers, William Greene and Justin Greene, were killed during the fracas. Agard was charged with their murder and remanded in custody on 29th March, 2006. He spent 87 days on remand before he was granted bail on 23rd May, 2006. He was again remanded on 17th February, 2007 after failing to meet his bail conditions. He remained in custody until his trial five years later.

3 At the trial Agard pleaded guilty to manslaughter. He was sentenced on 16th March, 2012. The trial judge, Mr Justice William Chandler, imposed the sentence in an impeccable manner, faithful to the directions given by this Court in Romeo Da Costa Hall v. The Queen [2010] CCJ 6 (AJ). The judge took account of all the aggravating and mitigating factors, arrived at a notional sentence of 13 years and then continued:

“Having arrived at this notional sentence of 13 years, the evidence is that you were remanded in custody for 1943 days up until today. This is five years, 118 days. Applying the principles in Romeo Hall and giving full discount for this period of remand of 1943 days, the sentence of this Court is seven years, 247 days in prison. This sentence will commence from today. That is the sentence of this Court.” [See Transcript of Sentencing Proceedings, pg 20, lines 15–22]

4 Although Agard's appeal to the Court of Appeal listed a number of grounds, on the day of the hearing before that court, he decided to proceed solely on the ground that the notional sentence of 13 years was excessive. In a brief oral judgment delivered on 14th March 2016 the Court of Appeal dismissed the appeal and endorsed the trial judge's sentence. If Agard desired to appeal further to this Court he had 42 days within which to file his Notice of Appeal. He neglected to file any appeal within that time. Instead, on 25th October, 2016, he applied for the time to be extended, and (if the extension were granted) for special leave to appeal and leave to appeal as a poor person.

5 Having examined the proposed grounds of appeal filed, this Court was unclear about Agard's precise complaint. In an effort to gain some clarity and simultaneously to consider the pending applications, we convened a hearing of the matter on 14th December, 2016. The Department of Public Prosecutions was represented by counsel at the hearing. The Court had before it Agard's Notice of Application which was supported by affidavits sworn to by Agard himself and by his counsel, Ms. Kristin Turton; the transcript of the Court of Appeal hearing; a letter from the Superintendent of Prisons which indicated Agard's actual and earliest release dates; and an Affidavit in Opposition sworn by Ms Delaney, a senior Crown counsel in the Prosecutions Department, to which was annexed a transcript of the sentencing proceedings.

THE APPLICATION FOR AN EXTENSION OF TIME

6 The two...