The Queen v Terry Smith

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 04 February 2005
• Neutral Citation: VG 2005 HC 4
• Docket Number: CASE NO. 34 OF 2004
• Date: 04 February 2005

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CRIMINAL)

CASE NO. 34 OF 2004

BETWEEN

The Queen

and

Terry Smith

Appearances:

Ms. Charmaine Rosan and Ms. Tamia Richards for the Crown Accused in person

JUDGMENT ON SENTENCING

HARIPRASHAD-CHARLES J

1 The facts of this case are not complicated. On the night of 11 ^th June 2003 at about 11.00 p.m. the virtual complainant, Koufi Modeste was lying on a bed in his apartment at CSY Dock, Baughers Bay, Road Town, Tortola when he heard a knock on his door. He opened it and there was his neighbour, Oacer Clark standing outside. Mr. Clark came in and they had a conversation. As Mr. Clark was exiting the apartment, the door was pushed and two masked men barged in the apartment. The bigger of the two men pushed Mr. Clark on to a bed which was close to the door while the other was shouting ‘shoot the man, shoot the man, shoot him’ as he was approaching Mr. Modeste.’ Mr. Modeste retreated and was kicked against the glass window by the other man. At that time, Mr. Modeste had a C–40 Crossman .177 Calibre gun in his hand. He opened fire at the man who was in front of him and then proceeded to fire several rounds at the bigger man standing at the doorway. The two men immediately fled the scene. Mr. Modeste promptly called the police who investigated the matter and subsequently arrested and charged the Accused for attempted robbery and burglary.

2 The case for the Prosecution was based to a large extent on the testimony of the virtual complainant and the eyewitness, Oecar Clark. Mr. Clark was present throughout the incident and positively identified the Accused as the one who committed the burglary on the night in question. He knew the Accused for some time prior to the incident as he used to see him at least twice daily for almost a year. The Accused raised the defences of identification and alibi.

3 After approximately 2 hours of deliberation, the jury returned a unanimous verdict of guilty of burglary. The accused is therefore before the court for sentencing.

Sentencing

4 Section 211(4) of the Criminal Code, 1997 of the Virgin Islands provides that the maximum penalty for the offence of burglary is 14 years.

5 Unlike manslaughter and offences of a sexual nature, there appears to be no benchmark period in the approach to sentencing of accused persons in cases of robbery and burglary within the Eastern Caribbean Supreme Court. Sentencing guidance is therefore derived from English jurisprudence.

6 In respect of burglaries from dwelling houses, in Brewster1, Lord Bingham, CJ issued the following sentencing guidance.

‘Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even where it does...