Bernard v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison, J.A.
• Judgment Date: 16 February 2011
• Neutral Citation: JM 2011 CA 128
• Docket Number: Criminal Appeal No. 84 of 2009
• Date: 16 February 2011

Court of Appeal

before

Morrison, J.A.;

Dukharan, J.A.;

Phillips, J.A.

Criminal Appeal No. 84 of 2009

Bernard

and

R

Appearances:

Leonard Green for the applicant.

Mrs Lisa Palmer-Hamilton and Miss Michelle Salmon for the Crown.

Criminal Law - Application for leave to appeal against sentence — Wounding with intent — Guilty plea — Three years imprisonment — Whether the sentence was manifestly excessive.

Morrison, J.A.

1 This is an application for leave to appeal against sentence, the background to which is that the applicant pleaded guilty on an indictment which charged him with wounding with intent. The applicant was at the material time a District Constable and it appears that on 23 July 2006, at about 10:00 pm, the complainant and a friend were walking in front of the public library in Savanna-la-mar when a police vehicle drove up and the complainant heard someone in the vehicle using indecent language to him, who then said: “don't move”. The complainant said that as he turned his head in the direction of the voice, he saw flashes of light and heard explosions coming from that direction. It was the driver of the vehicle who was pointing the gun in his direction. The complainant felt his body go numb and he fell into a drain along the side of the road. Two men alighted from the back seat of the car and the complainant felt someone searching him while he was lying in the drain. He was then put into the said vehicle and taken to the public hospital where it was discovered that he had received gunshot wounds. He suffered serious spinal cord injuries as a result of the wounds and, as a consequence, he is now paralysed from the waist down.

2 When Beswick, J., who was trial judge, came to consider the question of sentencing the antecedents of the applicant were put before her and these showed that he was in fact a District Constable and that he had no previous convictions. He was 26 years old when this incident took place and he had dependents.

3 In support of the plea of mitigation made by counsel on his behalf, it was advanced that the applicant had been on duty that night, and that he had that very night responded to two previous calls in respect of both of which he had been under fire from gunmen, and the judge accepted this. So this was the third call to which the applicant was responding on the night in question. Counsel for the applicant also urged the fact that when police officers are subjected to gun fire, the expectation or the hope is that they would get counselling right...