Charles McDonald v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 10 October 2022 |
| Neutral Citation | JM 2022 CA 103 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 64/2014 |
[2022] JMCA Crim 48
THE HON Miss Justice P Williams JA
THE HON Miss Justice Edwards JA
THE HON Miss Justice Simmons JA
SUPREME COURT CRIMINAL APPEAL NO 64/2014
IN THE COURT OF APPEAL
Mrs Emily Shields and Miss Maria Brady instructed by Gifford, Thompson & Shields for the applicant
Miss Tamara Merchant and Mrs Christina Porter for the Crown.
On 8 June 2022, this court heard submissions from counsel for both parties and at the conclusion of the hearing we made the following orders:
“1. The application for leave to appeal conviction and sentence is refused.
2. The sentence is to be reckoned as having commenced on 13 June 2014; the date when it was imposed.”
On that date, we promised to put our reasons in writing. This judgment is a fulfilment of that promise.
This was an application brought by Mr Charles McDonald (‘the applicant’) seeking leave to appeal his conviction and sentence, following a trial, before D Fraser J, (as he then was) (the learned trial judge), in the Circuit Court for the parish of Westmoreland.
The applicant was tried on 10 and 11 June 2014 on an indictment charging him with the offence of arson. The particulars of the offence are that the applicant, on 25 February 2013, in the parish of Westmoreland, unlawfully and maliciously set fire to a dwelling house with the intent to injure or defraud.
On 13 June 2014, the applicant was sentenced to 12 years' imprisonment at hard labour.
The applicant filed applications (both dated 8 July 2014) in this court for an extension of time in which to file a notice of appeal and for leave to appeal conviction and sentence.
The applications were considered by a single judge of appeal on 23 August 2018, who granted the application for the extension of time. The application for leave to appeal was refused and the applicant renewed his application before this court, as is his right.
It was the prosecution's case, that on 25 February 2013 in the parish of Westmoreland, at around 1:00 am, Desmond Morris (‘the complainant’) was inside his home with his wife when he heard a door being kicked down. He described the house as being comprised of seven apartments. Several persons lived at the premises which was “a tenement yard”. The complainant gave evidence that he saw the applicant coming from the room where the door had been kicked in. The applicant was accompanied by two other men who were armed with homemade firearms. The complainant stated that the applicant who had gone to the roadside, returned, lit a match and threw it through a window into the same room where the door had been kicked in. After the fire started blazing the men left the premises. Most of the belongings of the complainant and his wife were destroyed by the fire. The complainant had known the applicant for about 25 years prior to the incident.
In his unsworn statement the applicant denied any wrongdoing and asserted that the allegation against him was made out of malice.
At the hearing of the appeal, the applicant through his counsel, Mrs Shields, abandoned the application for leave to appeal his conviction. Counsel also sought and obtained leave to abandon the original grounds of appeal filed and to rely on the amended ground of appeal filed on 31 May 2022. The amended ground which relates to sentence solely states as follows:
“1. The sentence of twelve (12) years for arson is manifestly excessive having regard to the fact that [sic] normal range for sentences imposed in cases of arson where dwelling houses are concerned is a high of fifteen (15) and a low of three (3) years, depending on the circumstances-in that:
(a) The learned trial judge failed to demonstrate that in conducting the sentencing process, he'd [sic] commenced with a starting point for determining the range of sentence which would be appropriate;
(b) The learned trial judge failed to demonstrate that he'd [sic] given the applicant the full credit for the time spent in custody before sentencing;
(c) The learned trial judge failed to demonstrate at all or failed to demonstrate with any degree of mathematical precision the years added to any starting point based on [the] aggravating circumstances of the case;
(d) The learned trial judge failed to demonstrate at all or with any degree of mathematical precision the years subtracted from the sentence based on the mitigating circumstances of the case;
(e) The learned trial judge failed to order a social inquiry which may have assisted the court in better understanding the circumstances of the convict- [sic] such circumstances as may have impacted the sentencing process and which social inquiry report would of [sic] necessity capture the peculiarities of the offender-such peculiarities being important to the sentencing process.”
Mrs Shields having referred to the principles that guide this court in appeals against sentence, as set out in R v Alpha Green (1969) 11 JLR 283 at page 284 (‘ Alpha Green’) and Meisha Clement v R [2016] JMCA Crim 26, (‘ Meisha Clement’) at para. [43]), submitted that the sentence imposed was manifestly excessive. Counsel stated that section 4 of the Malicious Injuries to Property Act, prescribes a maximum penalty of life imprisonment for the offence of arson.
It was also submitted that the learned trial judge failed to apply the known principles of sentencing; those being retribution, deterrence, prevention and rehabilitation. Counsel further stated, that the learned trial judge failed to identify a starting point and demonstrate that any arithmetical calculations were used to determine the length of the sentence. In this regard, reliance was placed on Meisha Clement. It was submitted, that the starting point based on Lindell Howell [2017] JMCA Crim 9, (‘ Lindell Howell’) was between 12 and 15 years.
Where the time spent in custody was concerned, counsel submitted that there was no evidence that the applicant was given full credit for the year which he spent in custody, notwithstanding the learned trial judge's indication that he would have taken that period into account. In this regard, counsel relied on Lindell Howell.
Where the length of the sentence was concerned counsel examined Lindell Howell (sentence of 18 years' imprisonment reduced to 10 years' imprisonment), R v Regan [2007] EWCA Crim 2343 (sentence of 12 months' imprisonment reduced to six months' imprisonment) and Anthony Atkinson and another v R [2016] JMCA Crim 4 (‘ Anthony Atkinson’) (sentences of four and five years' imprisonment imposed on each appellant). Mrs Shields submitted that the facts in Anthony Atkinson were comparable to that of the applicant and as such, a similar sentence was appropriate.
Counsel further submitted that a social enquiry report ought to have been relied upon by the learned trial judge, in assessing the peculiar circumstances of the applicant's case, before handing down a sentence. This was especially so where as in this case: (i) the trial was of short duration, (ii) the applicant gave an unsworn statement and (iii) no character witnesses were called.
It was counsel's submission that 10 years would have been an appropriate starting point, and having regard to the aggravating and mitigating factors, a sentence of eight years would have been appropriate.
Miss Merchant submitted that the learned trial judge's failure to identify all the principles of sentencing did not make the sentence excessive. She pointed out that he had made reference to retribution and rehabilitation in his sentencing remarks.
Where his failure to identify a starting point or engage in an arithmetical calculation of the sentence was concerned, it was submitted that those omissions were not fatal to the sentencing process. Counsel asked the court to consider that the sentencing of the applicant pre-dated the decision of this court in Meisha Clement and the Sentencing Guidelines for Use by Judges of the Supreme Court and the Parish Courts that were promulgated in December 2017 (‘the Sentencing Guidelines’). It was submitted further, that in any event, the relevant principles were applied in substance and the sentence was not excessive. (See Ryan McLean and others v R [2021] JMCA Crim 21).
In respect of the time the applicant spent in custody, counsel accepted that based on Meisha Clement and Mohamed Iqbal Callachand and Anor v State of Mauritius [2008] UKPC 49 (‘ Callachand’) full credit was to be given to the applicant. Counsel submitted that the learned trial judge addressed his mind to that issue even though there was no arithmetical deduction.
The absence of a social enquiry report, it was submitted, caused no prejudice to the applicant as it would not have provided any real benefit to him. Counsel argued that the court had the information gleaned from the applicant's antecedents, coupled with submissions advanced on his behalf, which painted a favourable picture of him. Reference was made to Sylburn Lewis v R [2016] JMCA Crim 30 (‘ Sylburn Lewis’), in support of the submission that the provision of a social enquiry report as an aid to sentencing was a discretionary matter. Reliance was also placed on Michael Evans v R [2015] JMCA Crim 33 (‘ Michael Evans’).
In addressing the issue of whether the sentence imposed was excessive, counsel referred to the principle in Alpha Green, which guides this court in its review of sentence, that there will be no interference with a sentence unless there was an error in principle that resulted in the imposition of an excessive sentence. She made the point that the sentence must relate to the circumstances of the case,...
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