Alphanso Bailey v R
| Jurisdiction | Jamaica |
| Judge | Brooks P |
| Judgment Date | 21 July 2023 |
| Neutral Citation | JM 2023 CA 137 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 42/2020 |
[2023] JMCA Crim 38
THE HON Mr Justice Brooks P
THE HON Miss Justice P Williams JA
THE HON Miss Justice Simmons JA
SUPREME COURT CRIMINAL APPEAL NO 42/2020
IN THE COURT OF APPEAL
Criminal Law — Sentence — Whether lack of remorse is an aggravating factor — Whether sentence manifestly excessive
Criminal Law — Sentence — Illegal possession of firearm — Illegal possession of ammunition — Similar range of sentencing and starting points
Chumu Paris for the applicant
Ms Kathy-Ann Pyke and Dwayne Houston for the Crown
The applicant, Mr Alphanso Bailey, was, on 10 April 2019, convicted in the Western Regional Gun Court Holden at Montego Bay, in the parish of Saint James of the offences of illegal possession of a firearm and illegal possession of ammunition. He was tried before a judge sitting without a jury. On 19 July 2019, the learned judge sentenced Mr Bailey to 13 years' imprisonment at hard labour for the firearm offence and 10 years' imprisonment at hard labour in respect of the ammunition offence.
Mr Bailey applied for leave to appeal from both the convictions and the sentences. A single judge of this court refused his application in respect of the convictions but granted it in respect of the sentences. Mr Bailey, not only sought to pursue the leave to appeal but, initially, sought to renew his application for leave to appeal the convictions. At the hearing of the appeal, learned counsel appearing for him, Mr Chumu Paris, informed the court that the application for leave to appeal the convictions would not be pursued. The issue for the court's consideration, therefore, is whether the sentences are manifestly excessive.
The prosecution's case against Mr Bailey is that on the evening of 12 June 2017, at about 10:45 pm, two police officers, members of a joint police/military patrol, acting on information, entered Mr Bailey's room in a house at Richmond District in the parish of Hanover. They saw Mr Bailey standing in the room. He appeared frightened when he saw them. They searched the room in his presence and, under a carpet under the bed in the room, found a black and silver Ekol Firat Magnum pistol. The weapon contained 14 .380 cartridges.
The police officers, who entered and searched the room, were Corporal Dwight Braham and Constable Leighton Campbell. Constable Campbell spoke to Mr Bailey about the firearm. According to Constable Campbell, Mr Bailey replied saying “[a]h nuh fi mi gun dat, yuh nuh, officer, and mi naah tek nuh lock. A waa man gi mi fi keep dis mawning and mi naah tek nuh lock up fah”. According to Corporal Braham, the answer was “a nuh fi mi, yuh nuh, somebaddy gi mi fi keep till a mawning”. He told them the name of the person who, he said, had given him the firearm. They went in search of that person but their efforts were fruitless. They arrested and charged Mr Bailey.
Ballistic tests on the items found proved that the firearm had a defective hammer but was capable of being repaired to become a firearm in accordance with the Firearms Act (‘the Act’). It, therefore, satisfied the definition of a “component part” for the purposes of the Act. The 14 rounds of ammunition had been adapted to fit the firearm and satisfied the definition of ammunition, as set out in the Act.
Mr Bailey denied that he was present when anything was found in his room. In an unsworn statement, he said the police came into his room, took him to the kitchen, started to slap him and asked him, “where di bwoy dem deh”. While in the kitchen he heard someone cry out “Gun”. They took him to his room and started beating him. They took him to other places away from the premises and also beat him. He denied knowing anything about a gun and denied that he told the police that someone gave him the gun. He said a person named Sean used to occupy the premises along with him but Sean took “bad company” to the house and Mr Bailey had to turn him out.
The learned judge, after recounting both the case for the prosecution and the defence, found that the firearm and the ammunition were a firearm and ammunition for the purposes of the Act. She rejected Mr Bailey's case and accepted the evidence of the two police officers that Mr Bailey had exclusive possession of the room and that he was present when the firearm was found. She found that he had concealed the firearm and therefore he was in illegal possession of the firearm and the ammunition.
In sentencing him, the learned judge reviewed the principles of sentencing, which she identified as retribution, deterrence, rehabilitation and protection of society. She found that only deterrence and rehabilitation applied to Mr Bailey. She, however, took a negative view of the fact that he gave the Probation after-care officer, who investigated his case for the purposes of preparing a social enquiry report, a different story from the case he advanced at the trial. She found this to be a rejection of the court's verdict. It appears that the learned judge used this feature to use a higher starting point than she ordinarily would have. She said, in part, on page 116 of the transcript:
“So, despite the fact that you are 34 years old, you have no previous convictions, you have a good Social Enquiry Report, the Court is going to start at 12 years imprisonment which is appropriate in this case. The maximum sentence is life imprisonment; the usual range is [between] seven and fifteen years, after trial the usual point that the Court starts is ten years.”
In, thereafter, considering the aggravating and mitigating features of the offence and the offender, the learned judge credited him with a year for the mitigating factors, but again spoke to Mr Bailey's refusal to accept the verdict. She considered that an aggravating factor, and added time for it in calculating the sentence. She said in part, at pages 116 -117 of the transcript:
“…The aggravating factor, particularly your refusal to accept the verdict of this Court, your persistent denial that despite your trial, and finding of guilt that you do not accept the verdict, and you have advanced all these matters not led in evidence at your trial with a view to swaying the Court aggravates your sentence, and I will add two years for that.”
Mr Paris, as well as Mr Dwayne Houston, who responded for the Crown, submitted that the learned judge erred in principle in her approach to the issue of lack of remorse in considering the sentence. Both counsel relied on the judgment in Lavar Whitter v R [2022] JMCA Crim 44 in which it was said, in part, at para. [26], that:
“…Furthermore, whereas contrition and accepting responsibility for a crime is a factor in mitigation, a defendant's insistence on his innocence is not an aggravating factor.”
In conducting his own assessment of the correct approach to the sentencing, Mr Paris submitted that, after crediting Mr Bailey with one month for pre-trial remand time, the appropriate sentences were six years and 11 months' imprisonment for the offence of illegal possession of a firearm and four years and 11 months'...
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