Teerath Persaud v The Queen
| Jurisdiction | Caribbean States |
| Judge | Anderson, J.CCJ. |
| Judgment Date | 10 May 2018 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. BBCR2017/001 |
| Date | 10 May 2018 |
Caribbean Court of Justice
Saunders, J.CCJ.; Wit, J.CCJ.; Hayton, J.CCJ.; Anderson, J.CCJ.; Rajnauth-Lee, J.CCJ.;
CCJ Appeal No. BBCR2017/001
Mr. Ajamu N K Boardi, Ms. Safiya A Moore, Ms. Nikita A O Vaughn and Mr. Glenroy I Goddard for the appellant.
Mr. Anthony Blackman and Ms. Krystal L Delaney for the respondent.
Criminal law - Manslaughter — Appeal against sentence — Whether sentence was manifestly excessive — Disparity in sentences of co-accused persons sentenced by separate judges — Whether case against appellant was so dramatically different that it warranted an additional 9 years' imprisonment.
On 8 November 2008, the appellant and Christopher Omar McCollin broke into the home of 16-year-old Anna Druizhinina with the intention to steal. They encountered Anna and Mr. McCollin proceeded to tie a wire around her neck and attached the other end to a beam. Her hands and feet were bound and she was hoisted to stand on a paint can and bucket which were placed one on top of the other. She was left precariously perched on the containers from which she eventually fell and was strangled. The appellant and the co-accused were indicted with her murder.
On 3 February 2010, the co-accused pleaded not guilty to murder but guilty to manslaughter. He was sentenced on facts agreed by his counsel and the DPP which portrayed the appellant as the primary actor. Worrell, J. held that the case fell outside of the Pierre Lorde [See the Court of Appeal of Barbados guidelines in R v. Pierre Lorde [2006] 73 WIR 28] guidelines and decided that a reasonable starting point for sentencing would be 20 years. Having considered the mitigating circumstances, the judge sentenced the Mr. McCollin to 16 years' imprisonment less 20 months for time spent on remand.
At the start of his trial on 11 September 2012, the appellant pleaded not guilty to murder but guilty to manslaughter. His counsel and the DPP also agreed to facts set out in a previous statement he gave to the police wherein he portrayed Mr. McCollin as the primary actor. Maureen Crane-Scott J found that this was a serious case of manslaughter on the borderline of murder with numerous aggravating factors and fell outside of the Pierre Lorde guidelines. She held that the starting point would be 30 years. She found that the appellant's guilty plea warranted a reduction of 4 years and that the appellant's previous clean record, his cooperation with the police in making an oral and written statement upon arrest as well as his remorse since the pre-sentence report also warranted a discount of another year. Although informed that the co-accused had been sentenced to 16 years, the judge sentenced the appellant to 25 years imprisonment with a discount of 4 years and 26 days for time spent on remand.
The appellant appealed to the Court of Appeal arguing that (a) his sentence lacked parity with that of the co-accused, or in other words, that his sentence was manifestly excessive because he received a sentence that was 9 years longer than that of his co-accused whom the DPP accepted to be the primary aggressor in the commission of the offence and (b) his sentence was excessive because of the high starting point taken by the judge and her misapplication of the aggravating and mitigating factors.
The Court of Appeal dismissed the appeal. In relation to the submissions on the disparity between the sentences, the court relied upon its previous decision in Lorenzo Jordan v. R [ Criminal Appeal No. 22 of 2012, unreported decision of 3rd July 2014] where it was held that disparity in sentences, by itself, was not a ground for reducing a sentence unless there was a glaring difference between the treatment of the offenders which was wrong in principle. In that case the court also said that it was only in exceptional circumstances that a court could listen to an argument based on disparity in sentences passed on two separate offenders by two different judges. The court also found no error in Crane-Scott, J.'s starting point in determining an appropriate sentence, her identification of aggravating factors and her reduction of the sentence for mitigating factors.
The appellant appealed to the CCJ arguing essentially the same grounds argued in the Court of Appeal. Upon an assessment of the use of the parity principle in various jurisdictions outside of the Caribbean, the CCJ concluded that the concept of parity in sentencing had evolved into an important principle in the law of sentencing. The principle of equality before the law required that co-accused persons whose personal circumstances are similar and whose legal liability for the offence are relative should receive comparable sentences. Where the sentences are unjustifiably disparate, the accused who has been dealt with more harshly may entertain a legitimate sense of grievance at that unfair treatment. The Court stressed that it is also harmful to the public confidence in the administration of justice where significant disparity in sentences cannot be properly justified as public confidence would be eroded if “a right-thinking member of the public, with full knowledge of all the relevant facts and circumstances would, on learning of the disparity in sentences, consider that something had gone wrong with the administration of justice.”
The Court therefore said that where co-accused persons were sentenced separately, the second sentencing judge must have regard to the sentence passed by the first judge. The second judge, whilst obliged to pass the sentence which in his or her view is proper in all the circumstances must also have regard to the fact that the sentence passed by the first judge is an established and relevant fact to which appropriate weight must be given. This was consistent with ss. 37(3)(a) and 39 of the Penal System Reform Act.
In this appeal, the CCJ was not convinced that the case against the appellant was so dramatically different from that against the co-accused that it warranted the imposition of an additional nine-years imprisonment. Both sentencing hearings proceeded on the basis of statements given by the accused persons to the police in which they blamed each other for being the primary actor. In neither case was the evidence tested under cross-examination. Taken in the round, the Court concluded that a not unreasonable view of the case was that there was comparable culpability in the actual commission of the crime. The Court did not believe that the aggravating factors peculiar to the appellant, primarily the implied duty of trust based on his knowledge of the deceased, her parents and their residence, could justify an additional almost decade-long sentence.
The CCJ also found that the starting point adopted by the judge in this case was too high. The Court said that s. 37(3) of the Penal System Reform Act required that the judge consider “all the circumstances of the offence and the offender.” These circumstances would include the appellant's awareness of the danger of the actions of himself and the co-accused, and of the failure to assist the deceased by recklessly standing on the balcony until the inevitable occurred. These factors would be taken into account in deciding that the Pierre Lorde Guidelines did not apply and that a high starting point for sentencing was justified. In determining the starting point, the sentencing judge should only consider mitigating and aggravating factors associated with the objective seriousness and characteristics of the offence. Once the starting point had been so identified, the judge is thereafter required to make an adjustment upwards or downwards according to the principle of individualized sentencing and proportionality as reflected in the Penal System Reform Act, taking into account the aggravating and mitigating circumstances subjective to the offender. Having regard to the circumstances of the case, the Court found that an appropriate starting point ought to have been 25 years, as recommended by the DPP at the appellant's sentencing hearing.
The CCJ found that after determining a high starting point the judge further erred by considering, again, the appellant's awareness of the danger of the actions of himself and the co-accused and his failure to assist the victim as aggravating factors. On the other hand, the Court agreed with the courts below that the fact that the appellant's personal knowledge and past relationship with the deceased and her parents rendered his actions an especially reprehensible breach of trust towards the deceased whom he had known from the time she was a little girl. This, it was said, was a serious aggravating factor.
In considering the mitigating factors relevant to the appellant, the Court said that there were sound policy reasons for a significant reduction of sentences in the case of an early guilty plea. Such a plea is in the public interest as it avoids the need for a trial and saves victims and witnesses from having to give evidence of often traumatic events, shortens the time between charge and sentence, and saves costs. Best sentencing practice suggests that the discount should be approximately one-third 1/3 for a guilty plea entered at the earliest possible opportunity, with a “sliding scale” for later pleas to at least 10% depending on the stage of the trial where the plea is entered.
The Court concluded that the starting point of 25 years should be adjusted upwards by 2 years on the basis that the aggravating factors outweighed those in mitigation to produce a notional term of 27 years. A discount of one-third (9 years) for the appellant's early guilty plea was thereafter appropriate, resulting in a notional term of 18 years. From this notional sentence of 18 years, the full period of 4 years and 26 days spent on remand before his original date of sentence on 11...
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