R v Glenville Nkomo Kenyatta Hodge

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: ‘Innocent, J.’
• Judgment Date: 17 March 2022
• Judgment citation (vLex): [2022] ECSC J0317-5
• Year: 2022
• Docket Number: CLAIM NO. AXAHCR 2020/0009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

CLAIM NO. AXAHCR 2020/0009

Between:

Regina

and

Glenville Nkomo Kenyatta Hodge

Appearances:

Mr. Thomas W. R. Astaphan QC with him Ms. Erica Edwards Senior Crown Counsel Attorney General's Chambers, Mr. Sasha Courtney Crown Counsel Attorney General's Chambers of counsel for the Crown

Mr. Tim Prudhoe with him Mr. Carlyle Rogers of counsel for the Defendant

Sentencing — Murder — Section 187 Criminal Code — Factual basis of sentence — Interpretation of jury's verdict — Correct approach — Practice Direction on Sentencing for the Offence of Murder for the Eastern Caribbean Supreme Court (the ‘Practice Direction’) — Whole life sentence — Exceptionally high seriousness — Whether a determinate sentence or a whole life sentence appropriate — Fact finding for the purpose of sentencing — Onus and standard of proof

‘Innocent, J.’

1 Mr. Glenville Nkomo Kenyatta Hodge (Mr. Hodge), after a lengthy trial, was convicted of the murder of Ms. Taitu Kai Goodwin (Ms. Goodwin) by unanimous verdict of a jury. Mr. Hodge is now before the court for sentencing. Mr. Hodge was indicted on 5 ^th August 2020 for the murder of Ms. Goodwin at Windward Point, in the Island of Anguilla on 9 ^th September 2019 contrary to section 187(1) of the Criminal Code.

2 Before setting out the court's approach to sentencing and determining the sentence to be imposed on Mr. Hodge for the commission of the offence of which he stands convicted, it will be necessary to first establish the factual basis upon which the court ought to sentence the offender.

3 The approach that the court will adopt in establishing the factual basis for sentence is based on an interpretation of the jury's verdict in the present case.

4 The approach which a court passing sentence on an offender ought to adopt is clearly set out in the case of Regina v King (Dwayne) 1 where the Court of Appeal following the decisions in R v Boyer 2, R v McGlade 3 and R v Bertram 4, held, Sweeny J delivering the judgment of the court:

“In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.” 5

5 In the present case, it has been submitted on behalf of the Crown that there is but only one plausible interpretation of the jury's verdict and that there were no plausible alternatives open to the jury based on the evidence led at the trial. Counsel appearing for Mr. Hodge have registered their demur to this proposition. It appears that in relation to certain evidence relied on by the prosecution at the trial, counsel for Mr. Hodge argued that it was open to the court to find that there was one or more plausible alternatives left to the jury on certain issues which formed the basis of their verdict. On the contrary, counsel appearing for the Crown argued that the evidence

was such that a properly directed jury could have only arrived at one interpretation of the facts

6 In resolving the impasse between the Crown and counsel for Mr. Hodge on this point, the court will adopt the principled approach that ultimately, subject to what was quoted above as stated by Sweeny J, it is a matter for the discretion of the sentencing judge upon whom it falls to decide the factual basis upon which to pass sentence. The sentencing judge must approach the task at hand with care. It is incumbent on the judge, when distilling the factual basis of the sentence, to explain the factual aspects about which he was not clear, and the factual aspects about which he was either clear or satisfied (which include the findings of fact complained of). In so doing the judge must apply the criminal standard. 6

7 In the present sentencing exercise, the court adopts the salutary warning given in respect of the application of the principle of onus of proof and standard of proof by the sentencing court in R v Reinhold Erhard Olbrich 7 where it was held that:

“Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)”

Therefore, at the sentencing hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating factors are obvious from the evidence presented at the trial. The onus is on the Crown to negative the presence of mitigating factors beyond a reasonable doubt. It is only trite that the sentencing

court may not take facts into account in a way that is adverse to the interest of the convicted person unless those facts are established beyond a reasonable doubt. The convicted person carries the burden of proving on a balance of probabilities matters relative to mitigation submitted in his favour. This principle finds its applicability in relation to the question of premeditation and planning and the provenance of the knife used in the commission of the offence

8 Mr. Hodge and Ms. Goodwin had been romantically involved. The evidence led at the trial revealed that the relationship, towards the latter days, was tumultuous.

9 At the time of the offence, Ms. Goodwin resided alone in an apartment at Sandy Hill. Mr. Hodge resided with his mother at Island Habour. From the WhatsApp messages evidence lead by the Crown at the trial, it appears that during the course of the relationship, Mr. Hodge perpetrated acts of violence or physical abuse against Ms. Goodwin on several occasions prior to the termination of the relationship by Ms. Goodwin, and subsequent to those WhatsApp messages, the further evidence upon which he was convicted showed both acts of violence and physical abuse used in causing her demise.

10 WhatsApp messages exchanged between Mr. Hodge and Ms. Goodwin several weeks before the commission of the actual offence disclosed the instances of physical and emotional abuse which Ms. Goodwin suffered at the hands of Mr. Hodge. It must be noted that Mr. Hodge accepted that all the WhatsApp messages lead by the Crown were messages between himself and Ms. Goodwin so that there was no dispute before the jury as to the genesis and veracity of their contents. He in fact identified all the messages by virtue of his WhatsApp number and Ms. Goodwin's WhatsApp number. From those messages put into evidence at the trial, and accepted as being authentic by Mr. Hodge, it appeared that Ms. Goodwin manifested an intention to bring the relationship to an end.

11 On the night of 30 ^th August 2019, Mr. Hodge visited Ms. Goodwin's residence and remained outside in the dark, despite Ms. Goodwin's repeated pleas for him to leave. During the course of the WhatsApp messaging conversation, Ms. Goodwin told Mr. Hodge that she would report him to Superintendent Patterson for being in her yard and refusing to leave, which made her feel unsafe. The evidence presented showed that on the morning of 31 ^st August 2019, Ms. Goodwin went to the residence of Superintendent Patterson and reported to him that Mr. Hodge had been coming onto her premises without her permission, and that he was there the night before, and that she would like him to warn Mr. Hodge not to come on her premises without her permission. Mr. Hodge appeared on the scene shortly after Ms. Goodwin arrived at Superintendent Patterson's residence. Superintendent Patterson informed Mr. Hodge that Ms. Goodwin had reported to him that sometime in the past he was at her apartment and was refusing to leave and this lead to a physical altercation between the two of them. Mr. Hodge denied stalking Ms. Goodwin. However, he admitted being at her apartment and refusing to leave. He admitted that they were having some problems in their relationship. Superintendent Patterson told Mr. Hodge that Ms. Goodwin had asked that he give her some space and that he must not contact her or go to her apartment until she had given him permission to do so. Mr. Hodge agreed and he left immediately thereafter.

12 On the night of 8 ^th September 2019, Mr. Hodge laid wait in the bushes near Ms. Goodwin's apartment. His evidence was that he had tried to WhatsApp Ms. Goodwin but that the messages were not going through, so he decided to go to her home. He said that he knocked on her front door but there was no answer. He said that as he was leaving and at the gate, he saw the lights of a car pulling up and he stepped into “an open area surrounded by trees”. At about 12:45 am on the morning of 9 ^th September 2019, Ms. Goodwin returned home. She had been dropped off by a male friend. Mr. Hodge admitted in evidence that, using his cellular phone, he...