Elliston Mcdonald Greaves v The State

• Jurisdiction: Caribbean States
• Judge: Anderson,Wit,Rajnauth-Lee,Barrow,Burgess
• Judgment Date: 12 May 2022
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No BBCR 2021/003

Between

Elliston McDonald Greaves

Appellant

and

The State

Respondent

[2022] CCJ 9 (AJ) BB

Before

The Honourable: Mr Justice Wit, JCCJ

Mr Justice Anderson, JCCJ

Mme Justice Rajnauth-Lee, JCCJ

Mr Justice Barrow, JCCJ

Mr Justice Burgess, JCCJ

CCJ Appeal No BBCR 2021/003

BB Criminal Appeal No 11 of 2018

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

Criminal law — Manslaughter — Sentence — Appellant sentenced to 16 years — Credit for time spend on remand — Whether sentence was excessive — Aggravating and mitigating factors — Previous Convictions — Pierre Lorde Guidelines on sentencingfor manslaughter — Revision of Guidelines — Penal System Reform Act, Cap 139 — Criminal Appeal Act, Cap 113A.

Criminal law — Sentencing — Methodology — Comparison of Sentences for Murder and Manslaughter.

Cases referred to:

Alleyne (Dwight Ovid) v R (Barbados CA, 5 March 2004); Alleyne v R [2019] CCJ 06 (AJ) (BB), (2019) 95 WIR 126; Bend v R (Barbados CA, 27 March 2002); Bridgelall v Harisprashad [2017] CCJ 8 (AJ) (GY), (2017) 90 WIR 300; Burton v R [2014] CCJ 6 (AJ) (BB), (2014) 84 WIR 84; Greaves v R (Barbados CA, 19 March 2021; Griffith v R (Barbados CA, 19 June 2009); Hall v R [2011] CCJ 06 (AJ) (BB), (2011) 77 WIR 66; Padmore v R (Barbados CA, 30 March 2007); Persaud v R [2018] CCJ 10 (AJ) (BB), (2018) 93 WIR 132; Pompey v DPP [2020] CCJ 07 (AJ) GY; R v Henry [2018] CCJ 21 (AJ) (BZ), (2018) 93 WIR 205; R v Lorde (2006) 73 WIR 28 (BB CA); Smith v R (Barbados CA, 19 June 2014); Taitt v R (2011) 80 WIR 30 (BB CA).

Legislation referred to:

Barbados — Anti-Terrorism Act, Cap 158, Constitution of Barbados 1966 as amended by Act 15 of 2019, Criminal Appeal Act, Cap 113A, Malicious Injury to Property Act, Cap 140, Offences Against the Person Act, Cap 141 as amended by Act 32 of 2018, Penal System Reform Act, Cap 139, Sexual Offences Act, Cap 154, Theft Act, Cap 155.

Other Sources referred to:

Banks R, Banks on Sentence (5th edn, 2010); Seetahal D, Commonwealth Caribbean Criminal Practice and Procedure (4th edn, Routledge 2014); Roberts J, ‘The Role of Criminal Record in the Sentencing Process’ (1997) 22 Crime and Justice 303; Wasik M, Emmins on Sentencing (4th edn, Oxford University Press 2001).

Appearances:

Mr Dennis Headley with Mr Dave Cumberbatch and Mr Derek Boyce for the Appellant

Mr Alliston Seale and Mr Oliver J M Thomas for the Respondent

JUDGMENT of The Honourable Justices Wit , Anderson , Rajnauth-Lee , Barrow and Burgess

Delivered by The Honourable Mr Justice Winston Anderson on 12 ^th May 2022

Introduction

1 This is an appeal against sentence. On 3 July 2017, Elliston McDonald Greaves, (the appellant), pleaded guilty to manslaughter and was sentenced on 12 July 2018 by the High Court of Barbados to the notional term of 16 years imprisonment from which the term spend on remand was to be deducted. In accordance with the majority decision in Hall v R, 1 the official sentence was therefore 13 years, 168 days imprisonment. This sentence was affirmed by the Court of Appeal of Barbados on 19 March 2021. In his Notice of Appeal to this Court, the appellant sought a reduction in his sentence on the ground that the sentence was excessive.

2 In addition to affirming the sentence of the Sentencing Judge, the Court of Appeal accepted the invitation from Counsel for the Prosecution to revise the guidelines set out in R v Lorde 2 (‘ Pierre Lorde Guidelines’) on sentencing for manslaughter having regard to the latter decisions of this Court in Hall v R 3, Persaud v R, 4 and Alleyne v R. 5 Counsel also asked that we give our views on the Pierre Lorde Guidelines as revised by the Court of Appeal (the Revised Guidelines). 6

Facts

3 The appellant shared an intimate relationship with Cally Ann Gill (the deceased) and fathered six of her eight children. Both the appellant and the deceased engaged in the illicit use of marijuana and cocaine and their relationship had a history of domestic violence. On 22 December 2015, the appellant and the deceased slept overnight at the residence of Richard Toppin (‘the residence’), which residence had been used in the past by the deceased to engage in prostitution, without, apparently, the knowledge of the appellant.

4 On 23 December 2015, while the appellant was out, a client visited the residence and conversed with the deceased in a back room with a view to purchasing sex. The appellant returned to the residence and went into the back room and the client immediately left and went into another room. A quarrel ensued between the deceased and the appellant who went to the other room and placed a knife to the throat of the client who managed to extricate himself and to make good his escape.

5 The quarrel resumed between the appellant and the deceased, and a struggle ensued between them. The intervention by the owner of the residence, Richard Toppin, in pulling the appellant away from the deceased, proved to be only a temporary respite. The appellant went to the kitchen, took up a knife, returned to the bedroom and stabbed the deceased once in her throat. He then dropped the knife and left the house. A post-mortem concluded that the deceased died by a stab wound to the neck.

6 Upon being questioned by the police, the appellant immediately gave a verbal admission that he had stabbed the deceased and subsequently provided a written statement to the police. The appellant was charged with the murder of the deceased.

The High Court Proceedings

7 On 3 July 2017, before Weekes J, the appellant pleaded not guilty to murder but guilty to manslaughter on grounds of provocation. The State accepted the plea to the lesser offence of manslaughter on the basis of provocation. Following a sentencing hearing, a victim impact statement, and a pre-sentence report, the learned Judge, on 12 July 2018, set the notional sentence of the appellant at 16 years imprisonment of which the 928 days spent on remand were deducted leaving a term of imprisonment of 13 years and 168 days.

8 It is important to appreciate how the learned Judge arrived at the 16-year sentence. First, she gave careful examination to the pre-sentencing report prepared pursuant to the Penal System Reform Act, Cap 139 (‘PSR Act’). That 5-page report revealed that the appellant was 49 years at the time of sentencing (46 at the time of the offence) and had been raised in a stable and closely knit family which endured impoverished conditions and financial challenges but was reported to be well mannered, helpful, and respected in the community. The appellant shared a 13-year-old relationship with the deceased and fathered 6 of her 8 children, ages 2–11 years. The report recorded that the couple had used illegal substances such as cocaine and marijuana in addition to alcohol, daily.

9 The appellant left secondary school without certification and held several odd jobs (such as landscaping, fishing, and general work as a labourer) in respect of which he was described by his former employers as industrious, reliable, and trustworthy. They considered his action in stabbing the deceased to be out of character. In the victim impact statement, the sister of the deceased expressed on-going emotional distress both for herself and for the young children left behind by the death of their mother. The Probation Department used the ‘Level of Service Inventory Revised’ to assess the appellant as presenting a medium to high risk of reoffending because of his substance abuse, lack of qualifications, criminal record, and association with negative influences.

10 Having heard the expressions of regret and remorse by the appellant and the statements by witnesses on his behalf, as well as the submissions by counsel, the Sentencing Judge turned to consider the question of sentencing as guided by the PSR Act. It was accepted by counsel on both sides that a custodial sentence was appropriate, and the Sentencing Judge was of the view that the guideline case for sentencing in manslaughter offences remained R v Lorde. 7 The Sentencing Judge found that the categorisation of aggravating and mitigating factors of the offence and the offender in Lorde was useful. With these factors in mind, and having considered the circumstances of the case, the Sentencing Judge assessed the aggravating factors of the offence to be:

• - A dangerous weapon (a knife) was used to cause the fatal injury to the deceased.

• - The injury was inflicted in the context of previous domestic abuse.

• - The intervention made by a third party was not heeded by the appellant.

11 The mitigating factors of the offence were found to be:

• - There was no evidence of premeditation

• - The prosecution accepted that there was an element of provocation.

12 The Sentencing Judge found the aggravating factors of the offender to be:

• - Previous convictions, although not for violence and of some vintage.

• - Admitted daily use of illegal substances.

• - A medium to high risk of offending.

13 The mitigating factors of the offender were found to be:

• - An early plea of guilty to manslaughter.

• - Co-operation with the police.

• - Expression of remorse and deep regret for the effect of the offence on the family.

14 Having expressly considered the need for rehabilitation and for proportionality of the punishment in relation to the gravity of the offence in accordance with s 41 of the PSR Act, the Sentencing Judge arrived at the notional sentence of 16 years by (1) using a starting point of 20 years; (2) increasing it by 4 years to take into

consideration the fact that the aggravating factors of the offender outweighed the mitigating factors; and (3) deducting 8 years representing the 1/3 discount for the appellant's early guilty plea. The appellant was also given credit for the time spent on remand

The Court of Appeal

15 The appellant appealed to the Court of Appeal on the sole ground that the sentence was...