Carnegie (Keith), Daley (Renford), et Al
| Jurisdiction | Jamaica |
| Judge | FORTE, P. , HARRISON, J.A: , SMITH, J.A. |
| Judgment Date | 20 November 2003 |
| Judgment citation (vLex) | [2003] 11 JJC 2001 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 November 2003 |
CRIMINAL LAW - Murder - Non-capital - Sentencing - Whether mandatory life sentence violates the Constitution of Jamaica, sections 17(1) and 20 - Whether mandatory life imprisonment breached the doctrine of separation of powers
The three applicants were each convicted of non-capital murder in separate trials having no connection with each other. The nature of their complaint, results in their applications for leave being granted and the hearing thereof treated as the hearing of the appeals. Because of the common issue in the appeals, it was agreed to hear the appeals together. The facts in each case are not particularly relevant to the issue on appeal, except in so far as the circumstances of the murder would, if the appellants succeed, affect the particular sentence imposed on each of them. Nevertheless, the facts having been outlined in the judgment of Smith JA, there is no need to repeat them here. It is sufficient for my purposes to indicate that the appellant Carnegie was convicted in the Trelawny Circuit Court on March 2, 2000, and sentenced to life imprisonment, the learned trial judge ordering, that he should serve thirty years imprisonment before becoming eligible for parole, and to be subjected to psychiatric treatment. The appellant Beckford pleaded guilty in the St. Mary Circuit Court to the offence, and was on March 15, 2001 accordingly sentenced to life imprisonment. In his case the learned trial judge made no order as to the minimum sentence he should serve before being eligible for parole. As will be seen later, the fact that the learned trial judge made no such order, will result in this appellant being eligible for parole in seven years: (See the Parole Act).
The appellant Daley was convicted in the St. Elizabeth Circuit Court on the 7 th March, 2001 and sentenced to life imprisonment. The learned trial judge made no order in relation to the period of sentence to be served before the appellant becomes eligible for parole. As in the case of the appellant Beckford, this appellant will also become eligible for parole in seven years.
A factor that should be noted, is that in each case Counsel was heard in mitigation in relation to the period to be served before the appellant could become eligible for parole.
In the cases of Beckford and Daley, the addresses by Counsel obviously had the effect of convincing the earned trial judge that a period of seven years, given the circumstances was sufficient to penalize the appellants for their conduct. By not setting a period, the Court left it to the Parole Board to determine after seven years, whether the appellants qualified for release under the Parole Act. In Carnegie's case, Counsel was also permitted to address the Court, in relation to the period to be served before eligibility for parole. In that case however, the learned trial judge having examined all the circumstances of that offence and the antecedent of the appellant, fixed that period at thirty years.
Against this background, the appellants complained:
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(1) that the mandatory sentence of life imprisonment for the offence of murder, violates the requirements of Section (17) (1) and Section 20 of the Constitution.
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(2) In the case of the appellant Daley, it was also argued that the mandatory life imprisonment breached the doctrine of the separation of powers.
It should be noted that Mr. Dennis Morrison, Q.C. who argued the appeals of Beckford and Carnegie, abandoned the complaint as to the breach of the doctrine of separation of powers and contented himself with the complaint stated above in the paragraph numbered (1).
In that event, it is convenient to deal with Mr. Morrison's argument at this time.
Issue No. 1
For clarity, the provisions of the sections of the Constitution of Jamaica which have been allegedly violated are set out hereunder.
Section 17(1) states:-
"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment..."
Section 20(1 ) states:-
"Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
Mr. Morrison in developing his arguments in relation to this issue, relied on what has become known as the trilogy of cases - Hughes [2002] 2 All ER 1058, Reyes [2002] 2 WLR 1034 and Fox [2002] 2 WLR 1077 which inter alia concluded that the mandatory death penalty was inhuman and degrading punishment, and therefore breached the Constitutions of St. Lucia, Belize and Nevis respectively. The ratio in those cases arose out of the opinions of their Lordships that given the gravity and the finality of the sentence of death, such a sentence would not be proportionate to all the varying circumstances in which the offence could be committed. In that event, it is inhuman and degrading to condemn a person to such a sentence without considering:
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(1) The circumstances of the particular offence,
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(2) the antecedent of the convict, including social inquiry reports etc., and
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(3) without allowing him the opportunity to convince the court why in his particular circumstances, he should not suffer the ultimate punishment.
In delivering the opinion of the Board in the Reyes case [2002] 2 WLR 1034, Lord Bingham of Cornhill stated at page 1055:
"The Board is [however] satisfied that the provision requiring sentence of death to be passed on the defendant on his conviction of murder by shooting subjected him to inhuman or degrading punishment or other treatment incompatible with his right under section 7 of the Constitution in that it required sentence of death to be passed and precluded any judicial consideration of the humanity of condemning him to death. The use of firearms by dangerous and aggressive criminals is an undoubted social evil and, so long as the death penalty is retained, there may well be murders by shooting which justify the ultimate penalty. But there will also be murders of quite a different character for instance, murders arising from sudden quarrels within a family, or between neighbours, involving the use of a firearm legitimately owned for no criminal or aggressive purpose in which the death penalty would be plainly excessive and disproportionate. In a crime of this kind there may well be matters relating both to the offence and the offender which ought properly to be considered before sentence is passed.
To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7 exists to protect."
The appellants, Beckford and Carnegie relied totally on the principle of proportionality adumbrated in the trilogy of cases (supra), and invited the Court to apply that doctrine to the question in issue in this appeal. Mr. Morrison, Q.C. argues that the mandatory sentence of life imprisonment deprives the prisoner of the opportunity of having his own antecedents, and the circumstances in which his offence was committed, considered in determining what is an appropriate sentence in his particular case. He contends that given the varying and wide range of circumstances in which a murder can be committed, there should be different considerations in respect of each case, in order to arrive at an appropriate sentence. He relies on the old saying that "the sentence should fit the crime" so appropriately used by Saunders J.A. in the case of Hughes (supra). To sentence the appellants arbitrarily to life imprisonment, he maintains:
(1) is to subject him to inhuman or degrading punishment and
(2) to deprive him of a fair hearing in respect of sentence which is required by virtue of section 20(1) of the Constitution.
These arguments must be considered against the realization firstly that the trilogy of cases dealt with the death penalty, the finality of which gives weight to the question of its proportionality to the circumstances under which a particular murder was committed, and secondly, that the offence of non-capital murder relates to the taking of a life in circumstances where the convict, committed a deliberate act with the intention to kill or at least to cause serious bodily injury.
Having said that, a look at the Jamaican legislation as it relates to the punishment for non-capital murder is appropriate.
In 1992, the Offences against the Person Act (the "Act") was amended to create two categories of murder:
(1) capital murder for which a sentence of death is mandated; and
(2) non-capital murder for which there is a mandatory sentence of life imprisonment.
It is unnecessary for the purposes of this judgment to set out the circumstances under which an offence is capital or non-capital. As we have noted the appeals with which we are concerned arose from convictions for non-capital murder. The 1992 amendment to the Act, added a new section, section 3A which reads:
"(1) Subject to the provisions of this Act, every person who is convicted of non-capital murder shall be sentenced to imprisonment for life.
(2) Notwithstanding the provisions of Section 6 of the Parole Act, on sentencing any person convicted of non-capital murder to imprisonment for life, the Court may...
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