Burton v The Queen Nurse v The Queen

JurisdictionCaribbean States
CourtCaribbean Court of Justice
JudgeAnderson, J.CCJ.
Judgment Date26 Mar 2014
Docket NumberCCJ Application BBCR 2 of 2013; BB Criminal Appeal No. 1 of 2011; CCJ Application BBCR 3 of 2013; BB Criminal Appeal No. 4 of 2011

Caribbean Court of Justice

Nelson, J.CCJ.; Saunders, J.CCJ.; Wit, J.CCJ.; Hayton, J.CCJ.; Anderson, J.CCJ.

CCJ Application BBCR 2 of 2013; BB Criminal Appeal No. 1 of 2011; CCJ Application BBCR 3 of 2013; BB Criminal Appeal No. 4 of 2011

Burton
and
The Queen
Nurse
and
The Queen
Appearances

Mr. Andrew Pilgrim QC, Ms. Kristin C A Turton, Ms. Angella A Mitchell-Gittens and Ms. Lesley T Cargill for the applicant in BBCR2013/002.

Mr. Ralph A Thorne QC and Ms. Mechelle Forde for the applicant in BBCR2013/003.

Ms. Donna Babb-Agard QC and Mr. Alliston Seale for the respondent.

Criminal Law - Manslaughter — Appeal against sentence — Pierre Lorde sentencing guidelines — Credit for time served on remand.

Anderson, J.CCJ.
INTRODUCTION
1

This appeal raises for the first time an important aspect of the juridical effect of a judgment of this Court upon a subsequent appeal in the court below. In Romeo Da Costa Hall v. The Queen [2011] CCJ 6 (AJ) this Court held that transparency in sentencing and the principles relating to the imposition of custodial sentences enshrined in the Penal System Reform Act, Cap 139 of the Laws of Barbados, required that a sentencing judge explain how the time spent on remand factored into the sentence imposed. We held further that there was a primary rule of substantially full credit for time served prior to sentencing and if a judge chose to depart from that rule he or she should set out the reasons for such departure. The nuanced language reflected our reasoning that there was a residual discretion in the sentencing judge not to apply the primary rule. There is no need to investigate the contours or extent of the residual discretion in the present case. Nothing turns on it. Furthermore, given the relevant constitutional principles and in particular the constitutional right to individual liberty, it may be taken that substantially full credit means full mathematical credit. What remains in issue in the present appeal is whether the primary rule requiring full credit for time spent on remand ought to have been applied by the Court of Appeal in respect of an appeal of a sentence imposed by the sentencing judge before Romeo Hall was decided.

2

The issue arose in the following manner. On the 20th day of January 2011, Burton and Nurse (“the appellants”) were sentenced to seven and five years respectively for the offence of manslaughter. The sentencing judge “took into consideration” the time which the appellants had each spent on remand but his judgment did not reflect a specific deduction. The judge did not indicate whether he considered it appropriate to depart from the primary rule of full credit for time served. On 20th April 2011, about three months after the imposition of the sentences, the judgment in Romeo Hall was delivered. Armed with that judgment the appellants appealed to the Court of Appeal but the appeal was dismissed on 4th October 2013, primarily on the ground that the trial judge could not have foreseen that this Court would have decided Romeo Hall in the way we did and that the Romeo Hall decision was not to be applied retroactively.

3

The applications by the appellants for special leave to appeal to this Court and for special leave to appeal as poor persons were heard on 23rd January 2014. The main contention was that the Court of Appeal erred in not applying Romeo Hall to reduce the appellants' sentences by the time spent on remand. We granted special leave to appeal and leave to appeal as poor persons and reserved judgment on the appeal of Burton but allowed the appeal with respect to Nurse and ordered his immediate release from custody. We promised then that the judgment in respect of the consolidated appeals of the appellants would be delivered in due course and we do so now.

BACKGROUND
4

The factual circumstances giving rise to this appeal are most unfortunate involving as they do an incident among school children which led to the stabbing death of a young boy and the conviction and imprisonment of two other young boys.

5

On September 29, 2006 a student of the Garrison Secondary School lost his cellular phone on the school bus and there arose a disagreement among the various factions as to who might have taken the phone. Accusations and threats were made. The students on the bus included Averell Leroy Wright, Burton and Nurse. A week later, on 6th October 2006, Burton and Nurse boarded the Ellerslie school bus on their way home. The driver took the bus along the usual route and picked up students from Garrison Secondary School including Wright and two of his friends. When the bus reached the area of Maxwell, Burton walked from his seat in the rear towards the front of the bus but was deliberately impeded by Wright. A fight ensued which continued through the door of the vehicle and unto the pavement. Nurse jumped from the bus and joined the scuffle. Burton drew a knife from his school bag and stabbed Wright in the chest who collapsed after fleeing a short distance. Nurse was 17 years. Burton and Wright were each aged 15 years but Wright would never see his sixteenth birthday. The stab wound caused haemorrhage and shock from which he died at the place he had fallen. Within minutes Burton and Nurse were intercepted by the police and an ice pick recovered from Nurse and a knife covered with human blood from Burton. They were arrested and three days later, on 9th October 2006, charged with murder. Nurse was remanded to prison but was granted bail on 23rd July 2009. Burton was remanded to the Government Industrial School and, upon reaching 18 years of age, transferred to Her Majesty's Prisons at Dodds, St Phillip.

6

At their arraignment on 8th March 2010, Burton and Nurse pleaded not guilty to murder but guilty to manslaughter. The pleas were accepted by the Crown. At their allocutus both young men expressed remorse for their actions on that fateful day some four years earlier. All indications were that they had cooperated fully with the police. Pre-sentencing reports prepared by the Probation Department generally commented favourably on both. Their lawyers presented stirring pleas in mitigation stressing the factors of remorse, early guilty pleas, good probation reports, youthful age at the commission of the offence, and otherwise unblemished good character. The lawyers argued that application of the judicial guidelines on sentencing pronounced by the Court of Appeal in Pierre Lorde v. R (Criminal Appeal No. 11 of 2003, Court of Appeal, Barbados) (unreported), should result in sentences of time served.

7

The learned trial judge considered the factors in mitigation in which he included the time spent on remand as well as the sentencing guidelines relied on by Counsel. Having regard to the aggravating fact that both young men had been armed and the seriousness of the offence, the judge concluded that a period of incarceration was necessary and sentenced Burton to seven years and Nurse to five years in prison. In answer to a query from Burton's lawyer as to whether the sentence would run from the date of the plea the learned judge indicated that he had already taken into consideration that the young men had been on remand and that the sentences would run from the date of sentence.

8

The appeal to the Court of Appeal was on the sole ground that the sentences were excessive for two separate reasons. The appellants argued that the decision in Romeo Hall required that each of them should be given a full discount for time spent on remand and that the sentences were not in accordance with the judicial guidelines on sentencing. The court dismissed the appeal on the bases that Romeo Hall did not apply retroactively and that the guideline judgments were not meant to take away the discretion of the sentencing judge who was entitled to determine the appropriate sentence to impose for the offence, taking into consideration all of the circumstances of the particular case and the known sentencing principles.

9

By individual applications made on 18th and 19th November 2013, which were later consolidated, the appellants sought special leave from this Court to appeal the decision of the Court of Appeal. They alleged that egregious errors of law had been committed by both the learned trial judge and the Court of Appeal and that these errors had resulted in a miscarriage of justice by depriving them of their constitutional right to liberty for a period in excess of what was legally justifiable in the circumstances of the case. They alleged that the courts below fell into error by failing to give full credit for the full period spent on remand by way of a strict mathematical deduction (“the Romeo Hall point”) and by imposing and affirming sentences that were excessive having regard to the judicial guidelines pronounced in such cases as Pierre Lorde v. R (“the judicial guidelines point”).

10

The order in which the issues are dealt with may be important. Questions concerning the severity or excessive nature of the sentence go to the appropriateness of the sentence in respect of which aggravating and mitigating factors play an important part. It is only after the judge has decided the appropriate sentence taking into account the gravity of the offence and all the mitigating and aggravating factors that the question of whether and how to give credit for time served then arises. It must be emphasized that time spent on remand is not a mitigating factor. The prisoner has a prima facie right to obtain credit for such time so as to reduce concomitantly the sentence imposed by the judge. For this reason it will be convenient to consider the issue of adherence to the judicial guidelines which relate to the appropriateness of the sentence before considering the question of deduction from that sentence of the time spent on remand.

THE JUDICIAL GUIDELINES POINT
11

The appellants argue that the Court of Appeal erred in affirming sentences that were unduly harsh bearing in...

To continue reading

Request your trial