Roy Jacobs v The State

• Jurisdiction: Caribbean States
• Judge: Saunders P,Barrow,Burgess,Jamadar JJ,Anderson J
• Judgment Date: 11 April 2024
• Neutral Citation: [2024] CCJ 9 AJ
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No GYCR2023/001

Between

Roy Jacobs

Appellant

and

The State

Respondent

[2024] CCJ 9 (AJ) GY

Before:

Mr Justice Saunders, President

Mr Justice Anderson

Mr Justice Barrow

Mr Justice Burgess

Mr Justice Jamadar

CCJ Appeal No GYCR2023/001

GY Criminal Appeal No 48 of 2015

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

Criminal law — Sentencing — Appeal against sentence — Joint criminal enterprise — Murder for pay — Parity principle in criminal law — Power of DPP to appeal against sentence — Needham's Point Declaration on Criminal Justice Reform — Criminal Law (Offences) Act, Cap 8:01.

SUMMARY

The appellant and his co-accused, Orwin Hinds, Cleon Hinds and Kevin October, were found guilty by a jury of murdering for pay a 72-year-old woman, Clementine Fiedtkou-Parris, contrary to s 100(1)(d) of the Criminal Law (Offences) Act, Cap 8:01, (‘the Act’). Murder for pay is classified by the Act as constituting one of the worst types of murder and the Act requires that a person convicted of such an offence be sanctioned either by the imposition of a sentence of death or life imprisonment. It is required by the Act that when imposing a life sentence, the Court must specify the period to be served before becoming eligible for parole, with the minimum period of such service being 20 years.

For the murder of Clementine Fiedtkou-Parris, the appellant and his co-accused were sentenced by the High Court to 81 years' imprisonment, with eligibility for parole after 45 years. Their appeal against sentence was allowed by the Court of Appeal which, on 1 February 2022, imposed a sentence of 50 years' imprisonment without specifying any particular period for eligibility for parole.

Orwin and Cleon Hinds appealed the Court of Appeal's decision to this Court. On 17 January 2023, this Court in the case Hinds v The State, allowed the appeals of Orwin and Cleon Hinds and imposed a sentence upon them of imprisonment for life, with eligibility for parole after serving a period of 20 years' imprisonment.

On 5 October 2023, this Court granted the appellant special leave to appeal the Court of Appeal's sentence. In the appellant's grounds of appeal before this Court, he placed strong reliance on the decision of this Court in Hinds v The State and argued that the sentence imposed by the Court of Appeal was: (i) excessive, (ii) wrong in law as it failed to specify when he would be eligible for parole, and (iii) that a fit and proper sentence would be life imprisonment with eligibility for parole after 20 years given that this was the sentence this Court had imposed on his co-accused. The Director of Public Prosecutions (‘DPP’) agreed with these arguments and conceded the appeal. Accordingly, on 29 February 2024, this Court allowed the appeal with reasons to follow.

Writing for the majority, Saunders P expressed the view that the DPP was entitled and right to concede the appeal for three principal reasons. Firstly, the sentence imposed by the lower courts did not take account of the legislative regime governing persons convicted of murder for pay. The regime required that the appellant be sentenced to death or to life imprisonment. Secondly, Saunders P relied on the parity principle for the proposition that, having committed similar offences as the co-accused, under similar circumstances, it was right that the appellant should receive similar punishment. Lastly, Saunders P pointed out that since the Office of the DPP is established under the Guyanese Constitution as a public office, it followed that barring formal challenge to the exercise of discretion on the part of the DPP by way of judicial review, the DPP's decision to concede an appeal was not to be questioned.

In a separate opinion, Anderson J, agreed that the sentences imposed in the lower courts did not conform with the Act. He also accepted the concession of the appeal by the Office of the DPP. However, in light of conflicting statements attending the concession, Anderson J made the point that it is the duty of the Office of the DPP, where the DPP genuinely and for good cause considers a sentence to be too lenient, to make this known and to advocate for the type or range of sentence that it considers just in the circumstances of the case. The learned judge remarked that justice for those for whom the Office of the DPP speaks, especially those who cannot now speak for themselves, demands no less.

Cases referred to:

Alleyne v R [2019] CCJ 6 (AJ) (BB), (2019) 95 WIR 126; August v R [2018] CCJ 7 (AJ) (BZ), [2018] 3 LRC 552; DPP v Wells KN 2020 HC 40 (CARILAW), (6 November 2020); Edwards v R [2017] CCJ 10 (AJ) (BB), (2017) 90 WIR 115; Faux v R (BZ CA, 19 June 2023); Greaves v The State [2022] CCJ 9 (AJ) BB; Hinds v The State [2023] CCJ 1 (AJ) GY; Nicholas v The State (TT CA, 17 December 2013); Persaud v R [2018] CCJ 10 (AJ) (BB), (2018) 93 WIR 132; Pitman v The State TT 2013 CA 65 (CARILAW), (18 December 2013); Pompey v DPP [2020] CCJ 7 (AJ) GY, GY 2020 CCJ 2 (CARILAW); R v Banks [1916] 2 KB 621; R v Hernandez (BZ CA, 14 March 2014); R v Jogee [2016] UKPC 7, (2016) 87 WIR 439 (JM); R v Powell [2022] JMCA Crim 53, JM 2022 CA 106 (CARILAW); R v Puddick (1865) 4 F & F 497, 176 ER 662; R v Rahman [2009] AC 129; R v Shol BZ 2022 CA 30 (CARILAW), (28 September 2022); Sealy v R [2016] CCJ 1 (AJ) (BB), (2016) 88 WIR 70.

Legislation referred to:

Antigua and Barbuda — Criminal Procedure (Amendment) Act 2004; Barbados — Criminal Appeal Act, Cap 113A; Belize — Court of Appeal Act, CAP 90; British Virgin Islands — Criminal Procedure Act, CAP 18; Cayman Islands — Court of Appeal Law (2011 revision); Grenada — West Indies Associated States Supreme Court Grenada Act, CAP 336; Guyana — Constitution of the Co-operative Republic of Guyana Act, Cap 1:01, Court of Appeal Act, Cap 3:01, Criminal Law (Offences) Act, Cap 8:01; Jamaica — Offences Against the Person Act; St Kitts and Nevis — Eastern Caribbean Supreme Court (St Christopher and Nevis) Act, Cap 3:11; St Vincent and the Grenadines — Eastern Caribbean Supreme Court (St Vincent and the Grenadines) Act, CAP 24; Trinidad and Tobago — Supreme Court of Judicature Act, Chap 4:01.

Other Sources referred to:

‘Needham's Point Declaration on Criminal Justice Reform in the Caribbean: Achieving A Modern Criminal Justice System’ (CCJ Academy for Law Seventh Biennial Conference, Bridgetown Barbados, 20 October 2023); Patterson C, ‘Gov't Looking to Increase Mandatory Minimum Sentence for Murder to 45 Years’ (Jamaican Information Service, 25 January 2023) < https://jis.gov.jm/govt-looking-to-increase-mandatory-minimum-sentence-for-murder-to-45-years/> accessed 1 April 2024.

Appearances:

Mr Arudranauth Gossai for the Appellant

Mrs Teshana Lake and Mrs Mercedes Glasford for the Respondent

REASONS FOR DECISION

Saunders P ( Barrow, Burgess, and Jamadar JJ concurring) Anderson J

Saunders P :

1 At an early stage, the Director of Public Prosecution (‘the DPP’) decided to concede this appeal. Even though this Court's view on that concession ultimately counts for nought, it was a decision that, respectfully, was the right one to make and it ensured that precious time and costs were saved.

2 The appeal was brought by Roy Jacobs who had been convicted of murder. On 30 June 2011, along with others including Orwin Hinds and Cleon Hinds, Jacobs embarked on a joint criminal enterprise to kill Clementine Fiedtkou-Parris. It was a crime committed for money. Such a dastardly murder is specifically contrary to s 100(1)(d)(i) of the Criminal Law Offences Act, Cap 8:01. It falls into a legislative bracket that addresses the worst types of murder.

3 Jacobs was arrested on 29 October 2011 and has been incarcerated since then. The evidence against him consisted of an untested eyewitness account given by Fitzroy Fiedtkou, the deceased's brother. Unfortunately, Mr Fiedtkou died before the trial. He could not therefore be cross-examined, but his statement given in the Magistrate's Court was read into evidence at the trial. His statement was that around 7:45 in the evening of 30 June 2011, he was sitting on the steps at the home of his 72-year-old sister when two men came and asked for her. He called for her and when she came, one of the men shot and killed her. At an identification parade, Mr Fiedtkou identified Jacobs as the person who fatally shot his sister.

4 Jacobs gave a caution statement to the police. He confessed to participating in the crime, but he denied that he was the one who pulled the trigger. He and his co-accused all claimed that the deceased was killed by a person named ‘Dutchie’ who was never apprehended by the State. Jacobs did admit, however, that he ‘get the men fu do the work. But did not went dea’. Jacobs stated that he was paid GYD50,000 for ‘de work’.

5 At the trial, Jacobs objected to his caution statement going into evidence. That objection was overruled. The statement was admitted and placed before the jury. On 24 November 2015, Jacobs and his co-accused were all found guilty. Each was sentenced by the trial judge to 81 years' imprisonment with eligibility for parole after 45 years. To arrive at the sentence of 81 years, the judge started with a base of sixty years, deducted four years for the time spent in pre-trial detention, added ten years because it was murder for pay, added another ten years for pre-meditation, and another five for the use of a firearm. The judge fixed a period of 45 years before their eligibility to be released on parole.

6 On 3 December 2015, the co-accused each filed a notice of appeal against their convictions and sentence. Counsel submitted to the Court of Appeal that the sentences imposed were excessive. On 1 February 2022, the Court of Appeal dismissed the appeals against conviction and allowed the appeals against sentence. The Appeal Court reduced the sentences to 50 years' imprisonment for each accused. No time limit before eligibility for...