Hall v The Queen

CourtCaribbean Court of Justice
Docket NumberCCJ Appeal No. CR 1 of 2010; BB Criminal Appeal No. 15 of 2008
JudgeWit, J.A.
Judgment Date15 Apr 2011
JurisdictionCaribbean States

Caribbean Court of Justice

de la Bastide, P.; Nelson, J.A.; Mr Justice Saunders, J.A.; Bernard, J.A.; Wit, J.A.

CCJ Appeal No. CR 1 of 2010; BB Criminal Appeal No. 15 of 2008

Hall
and
The Queen
Appearances:

Mr. Andrew O G Pilgrim, Ms Carol-Ann N Best and Mrs. Angela Mitchell-Gittens for the appellant.

Mrs. Wanda M Blair and Mr. Lancelot Applewhaite for the respondent.

Criminal practice and procedure - Sentencing — Treatment of time spent on remand by prisoner — Trial judge had only allowed two years deduction from sentence for four an half years which appellant spent in prison — Incorrect principles applied — Appeal allowed — Order of Court of Appeal affirming 6 years' imprisonment set aside.

Wit, J.A.
1

The legislature of Barbados in passing the Penal Reform Act, Cap 139 has done much to modernize the sentencing process by making it certain, transparent and consistent. The Court of Appeal of Barbados has also made its contribution towards clarity in the sentencing phase of trial in several judgments laying down sentencing guidelines for the benefit of judges, lawyers and the public at large. The present appeal raises an important issue as to how a sentencing court should treat time spent on remand by a prisoner, whether the courts below applied the proper principles in that regard and whether or not as a result the sentence imposed was excessive.

BACKGROUND FACTS
2

Romeo da Costa Hall sought special leave to appeal against a decision of the Court of Appeal of Barbados dated March 12, 2010 dismissing his appeal against sentence and affirming a sentence of six (6) years' imprisonment imposed on him by Reifer, J. on May 27, 2008. He further made an application for special leave to appeal as a poor person. He contended that the Court of Appeal erred in law in failing to take into account each day that he spent on remand in custody in reduction of his sentence. As a consequence, his sentence was excessive. At the outset of the hearing on the basis of the written submissions, we granted special leave to appeal and leave to appeal as a poor person and decided to treat this hearing as the hearing of the appeal.

3

On January 22, 2005 the appellant's step-brother, Ryan Alleyne, and Toepeck Wickham, a brother of the deceased, Ephraim Wickham, had an altercation which escalated to physical violence. Ryan Alleyne struck Toepeck on the mouth with a concrete block. As a result Toepeck's brothers, Andrew and Ephraim, went in pursuit of Ryan Alleyne armed with a cutlass and a knife. There was a confrontation. Ryan Alleyne was wounded. Later the appellant and Ryan Alleyne, each armed with a cutlass, attacked Andrew and Ephraim. Ephraim was wounded in the head and back, and was pronounced dead on arrival at the hospital.

4

In January 2005, the appellant was arrested and charged with the murder of Ephraim. A count of causing serious bodily harm was added in 2008. The appellant was committed to stand trial on both counts. At his trial on April 14, 2008 he pleaded not guilty to the count of murder, but guilty on the lesser count of causing serious bodily harm with intent. The Crown accepted the plea on the lesser count. Reifer, J. held a sentencing hearing and pronounced her ruling on May 27, 2008 taking care to explain how she arrived at a sentence of six (6) years' imprisonment.

5

In arriving at her decision on the sentence, the learned judge used the bottom of the scale for a grave case of manslaughter without the use of a firearm, to wit, 16 years: see Pierre Lorde v. R (2006) 73 W.I.R. 28 (CA). No issue now arises as to the judge's use of this benchmark, although disapproved on appeal. The tariff of imprisonment for causing serious bodily harm with intent is not far different. In Marcus Ashford Johnson (unreported, Cr. App. No. 19 of 2005) on a plea of guilty to wounding with intent the accused was sentenced to 15 years' imprisonment.

Reifer, J. calculated the sentence as follows:

“I have used the bottom of the scale for a grave case of manslaughter as my starting point. I have discounted it by six years in consideration of the guilty plea, and a further two years in recognition of the other mitigating factors, and by a further two years for the time spent on remand. I therefore sentence you to six years in jail. This sentence will start from today's date …”

6

In allowing two years for the time spent on remand, the learned judge explained:

“Lastly, I have taken into account that you have spent four years and five months (sic) in custody. I will not credit you with the full four years as it is reasonable in the circumstances that you would have spent some time on remand.”

7

The appellant, who has been in custody since his arrest, appealed on the same day on which he was sentenced on the ground that:

  • (a) the sentence was excessive because the tariff for manslaughter was inappropriate (a ground not now pursued) and

  • (b) the judge failed to subtract the entire period on remand (January 23, 2005 to May 27, 2008) from the sentence she imposed.

Waterman, J.A. delivering the judgment of the Court of Appeal noted that in the United Kingdom the issue of the allowance to be made in sentencing for time spent on remand was governed by statute. Waterman, J.A. stated at WI of the judgment:

“It would appear that in Barbados, where there is an absence of statutory provisions similar to those in the United Kingdom, that at common law the trial judge has the discretion to take all, part of, or even none of the time spent on remand into account when sentencing. The determination is dependent on the particular circumstances of each case …”

8

Waterman, J.A. relied on dicta of Simmonds, C.J. in ( Mark Rohan Jack v. The Queen unreported, Cr. App. No. 9 of 2008) at [21]:

“Contrary to anecdotes and perceptions among some members of the public, the High Court and Court of Appeal do, as a matter of routine, take into account periods spent on remand when sentencing. In our opinion, having regard to the volume and pace of pending criminal cases, a period of two years was reasonable.”

9

The Court of Appeal therefore considered that the judge had not erred by not taking into account the entire time spent on remand since his arrest to May 27, 2008 (40 months and 4 days) and that the judge's discount (2 years) for the time spent on remand was reasonable. The Court of Appeal therefore affirmed the judge's sentence of six (6) years' imprisonment.

COMMON GROUND
10

It is common ground between the parties that in Barbados, unlike in the United Kingdom and other jurisdictions there is no statutory provision that makes it mandatory for a sentencing judge to give credit for time spent on remand prior to sentencing. The parties therefore agree that the issue between them is governed by the common law and that the sentencing judge has a discretion as to how to treat time spent on remand. The parties differ as to the scope and extent of that discretion, the mechanism for giving effect to it and the accountability of the sentencing judge for the exercise of that discretion.

THE SCOPE AND EXTENT OF THE DISCRETION
11

It is clear that the learned judge considered that she had a discretion in deciding what portion of the time spent on remand was to count towards the actual sentence. She refused to credit the appellant with what she erroneously called “the full four years” since it was reasonable for him to have spent some time on remand. The round figure of “two years” was reasonable.

12

The Court of Appeal considered that a trial judge had a discretion to take all, part of, or none of the time spent on remand into account. The quantum of pre-sentence custody to be credited depended “on the particular circumstances of each case”. Although the learned judge did not explain how she arrived at the discount of “two years”, the Court of Appeal held that the sentence was neither wrong in principle nor excessive. The methodology of the discount and the reasons for it are not set out in either judgment. It may well be, however, that both courts read the judgment of Simmonds, C.J. at [21] as laying down the standard credit to be allowed for time spent on remand. On this interpretation of the dicta of Simmonds, C.J. two years spent in jail awaiting trial was a reasonable period to treat as time served. The constitutional guarantee of trial within a reasonable time carries with it a right to release on bail after a reasonable time. However, it does not follow that time spent in jail before the right to release arises is not to be fully taken into account for sentencing purposes. Speedy trial and sentencing are different aspects of the criminal process.

13

The Crown contended for a broad judicial discretion in making an allowance for time spent on remand. In Mark Rohan Jack v. The Queen (unreported, Cr. App. No. 9 of 2008), the court merely asserted that it gave “a discount in the sentence for the time spent on remand.” In Ricardo Deverne Griffith v. The Queen (unreported, Cr. App. No. 6 of 2007) the appellant had been on remand for nearly two years. Peter Williams, J.A. held that no specific amount of credit was given in Barbados for time spent on remand. It was left to the discretion of the judge to consider the reasons and circumstances for the delay between remand and trial. In Gould and Sealy v. The Queen (unreported, Cr. Apps. Nos. 8 and 10 of 2006) the appellants had been in custody for 3 1/2 years pending trial. Peter Williams, J.A. again emphasized that the precise amount of credit to be given for time spent in custody “was still left open to the discretion of the judge, who does not have to state the credit he has given”. In our judgment, the dicta in the cases cited state the judicial discretion to give credit for time spent on remand too widely.

14

The appellant conceded that there was a judicial discretion to determine what credit should be given for time spent on remand. Counsel for the appellant contended,...

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