Bertell Myers v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 22 November 2013
• Neutral Citation: JM 2013 CA 120
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 19/2012
• Court: Court of Appeal (Jamaica)
• Date: 22 November 2013

[2013] JMCA Crim 58

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 19/2012

Bertell Myers

and

R

Delano Harrison QC for the appellant

Mrs Karen Seymour-Johnson and Miss Kerri-Ann Gillies for the Crown

CRIMINAL LAW - Manslaughter - Whether sentence manifestly excessive

Morrison JA

1 On 12 January 2012, the appellant pleaded guilty to the offence of manslaughter at the sitting of the Circuit Court held at May Pen in the parish of Clarendon. On 26 January 2012, after considering a social enquiry report and a report on the appellant's antecedents, F Williams J sentenced him to 15 years' imprisonment at hard labour. With the leave of a single judge of this court, the appellant now appeals against this sentence. The single issue which arises on the appeal is whether the sentence imposed by the learned judge is manifestly excessive.

2 After the appellant's plea was taken, the facts of the case were briefly outlined to the judge by counsel for the prosecution as follows. On 12 October 2011, the appellant and the deceased were together at the home which they shared with each other. A dispute developed between them, during which they both struggled for a knife which was in the hand of the deceased. During the struggle, the deceased was stabbed and, after he had wrested the knife from the deceased, the appellant stabbed her a second time. The deceased succumbed to her injuries. A few days later, a post mortem examination would reveal that she had received a laceration in the brain and that the cause of her death was hemorrhagic shock resulting from the stab wound.

3 On the very day of the incident, the appellant made a statement under caution to the police and, just over a week later, he participated in a question and answer interview session in the presence of a justice of the peace. On both occasions, the appellant gave details of the altercation which had occurred between himself and the deceased and the manner in which she had received the stab wounds.

4 It appears that very soon afterwards the appellant indicated a willingness to plead guilty and, on 12 January 2012, he was accordingly brought before the Circuit Court on a voluntary bill of indictment for the offence of murder. On that date, he pleaded not guilty to the offence of murder but offered a plea of guilty to the offence of manslaughter. Crown counsel indicated to the court that the plea to the lesser offence would be accepted, ‘primarily on the basis that on the facts of the case, as gleaned from various documents on file, the issue of provocation is one which is live’.

5 The matter was postponed for sentencing on 26 January 2012 and on that date the appellant's antecedents were read to the court. It appeared from them that the appellant, who was 33 years of age at the time of the offence, had been in more or less continuous employment since leaving school. Unmarried, he was the father of five dependent children. He had one previous conviction (on 1 July 2005) in the Resident Magistrate's Court for the offence of unlawful wounding, for which he had been sentenced to pay a fine of $40,000.00 or, in default of payment, six months' imprisonment. Although we were not shown a copy of a social enquiry report on the appellant, it is clear from the record that one was in fact made available to the court below, the judge describing it as ‘for the most part positive’.

6 In his remarks before sentencing the appellant, the judge observed that it was necessary for the court to ‘strike some kind of balance in the sentence’. On one side, there were the appellant's circumstances and his plea of guilty, while on the other, there was the fact that ‘the life of [the deceased] has been snuffed out’:

‘Mr Myers, although raised in a community in which there are high levels of crime has somehow managed to keep himself out of that, so that is something that should be taken into account as well in deciding how to dispose of this matter.

However, having regard to the principles of sentence there is no denial that there is too much loss of life in our country today and I speak, of course, not just of lost [sic] of life of [sic] natural causes but too many instances of murder and manslaughter, too many instances of unlawful killing. Even in relation to the allegations that were outlined to me and in relation to the circumstances, it seems to have something to do with a love affair gone sour or feelings of jealousy, and that too seems to be something that is already too prevalent or becoming prevalent in our country. But the Court has to consider that. The Court has to, as I indicate [sic] before, strike some kind of balance in the sentence; the punitive aspect on one hand and also the aspects of deterrent [sic] and also the Court has to bear in mind that any sentence which it has to pass in the Court's view that sentence must be passed [sic] should not be so long that it deprives Mr Myers of an opportunity to rehabilitate himself in some way. He is not a very young man, he is 32 years of age and depend on how you look at it but as I indicate previously [sic] rehabilitation is usually reserved for younger persons those in their teens, twenties and thirties. Striking the balance as best I can in what is a difficulty [sic] decision, the Court is of the view that the appropriate sentence in this case will be 15 years imprisonment at hard labour.’

7 In his grounds of appeal, the appellant complained that this sentence was ‘harsh and excessive’ and did not reflect his ‘guilty plea and remorse’. These grounds were supplemented by the single ground which Mr Harrison QC sought and was given leave to argue when the appeal came on for hearing before us:

‘The learned trial judge erred in principle for his failure to take into account, sufficiently/adequately,...