David Gray v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 01 February 2021 |
| Neutral Citation | JM 2021 CA 13 |
| Docket Number | SUPREME CRIMINAL APPEAL NO 9/2014 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Crim 4
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Miss Justice Simmons JA
THE HON Mrs Justice Dunbar-Green JA (AG)
SUPREME CRIMINAL APPEAL NO 9/2014
Hugh Wilson for the appellant
Miss Kathy Ann Pyke and Miss Sophia Rowe for the Crown
On 17 November 2020, the court had the benefit of hearing submissions from counsel. At the conclusion of the hearing, we made the following orders:
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(1) The appeal against sentence is allowed in part.
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(2) The sentence of 15 years' imprisonment for the offence of illegal possession of firearm is affirmed.
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(3) The sentence of 5 years' imprisonment for the offence of forcible abduction (count 2 on the indictment) is affirmed.
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(4) The sentence of 25 years' imprisonment for the offence of rape (count 3 on the indictment) is set aside and the sentence of 25 years with the stipulation that the appellant serves 15 years before being eligible for parole (having been awarded credit for 1 year and 6 months) is substituted in lieu thereof.
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(5) The sentences are to run concurrently and are reckoned as having commenced on 22 November 2013.
It was indicated to the parties that the reasons would be provided and this judgment is a fulfilment of that promise.
On 18 November 2011 sometime after 6:00 pm the complainant was sitting at the waterfront in downtown Kingston listening to music through her earphones. Whilst there she observed three men including the appellant walking towards her. They stopped in close proximity to her and the appellant engaged her in conversation. He told her that she looked like the person who sent his brother to prison. He then took up her handbag which was on the wall beside her. When she attempted to pull the bag away from him he lifted his shirt and showed her a gun in his waistband.
The appellant then held onto her hand and forced her to walk with him some distance away from where she had been sitting. When they stopped, one of the two men who was with the appellant asked her for money. She gave it to him and he left. The complainant and the appellant then sat on a wall by the waterfront for about 10 minutes. When the man who had asked for the money returned, the appellant instructed the complainant to get up and they walked for about 30 minutes.
When they arrived at a bushy area, the appellant instructed the complainant to remove her clothes. She did not comply. He then removed the gun from his waist and gave it to one of the men who were standing nearby. That man was about 6 feet away from where the complainant and the appellant were standing. The appellant then pulled down her sweatpants and had sexual intercourse with her without her consent.
After he finished, the complainant, the appellant and the man to whom he had given the gun, walked together around the block. During that time, the appellant continued to hold onto the complainant's bag. The other man told the appellant to return her bag. Before doing so he took out her phone and used it to dial his number and told the complainant that he was going to call her. He also told her that if she went to the police he would kill her.
When the complainant got home she called her boyfriend and told him that she needed to see him. Later that evening he came to her home she told him what had happened. The matter was reported to the police approximately three days later.
Later that month the complainant saw the appellant in the Matthews Lane area but she hid upon seeing him. In March 2012 she saw him in the vicinity of the Captain's Bakery in downtown Kingston and made a report to an officer who was nearby. The appellant was apprehended, arrested and charged with the offences of illegal possession of firearm, forcible abduction and rape.
On 22 November 2013, after a trial before a judge alone, in the High Court division of the Gun Court for the parish of Kingston, the appellant, Mr David Gray, was found guilty, on an indictment charging him with the offences of illegal possession of firearm, forcible abduction and rape. He was sentenced as follows:
It was ordered that these sentences should run concurrently.
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(1) Illegal possession of firearm – 15 years' imprisonment;
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(2) Forcible abduction – 5 years' imprisonment; and
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(3) Rape – 25 years' imprisonment.
By way of a notice of application for permission to appeal against conviction and sentence dated 4 December 2013, the appellant sought to challenge his conviction and sentence on following grounds:
“(1) Misidentity by the Witness – That the prosecution witness wrongfully identified [him] as the person or among any person [sic] who committed the alleged crime;
(2) Unfair Trial – That the evidence and testimonies upon which the Learned Trial Judge relied on for the purpose to convict [him] lack [sic] facts and credibility thus rendering the verdict unsafe in the circumstances.
(3) Lack of Evidence – That the prosecution failed during the Trial to present any form of ‘concrete’ material evidence to link [him] to the alleged crime.
(4) Miscarriage of Justice – That the court failed during the Trial, to recognise the fact that the prosecution [sic] case was substantially based on ‘hearsays’ [sic] and assumption, instead of real facts of law.”
His application was considered on paper by a single judge of this court on 11 June 2020. His application was refused in relation to conviction on the basis that the trial judge had correctly identified the major issues as being identification, dock identification and alibi. The single judge also found that the learned trial judge gave himself appropriate directions and properly considered issues of joint enterprise, recent complaint and inconsistencies and discrepancy. Leave was granted to appeal his sentence.
Two supplementary grounds of appeal were filed on 12 November 2020. At the hearing of the appeal, permission was sought by Mr Wilson to abandon the original grounds and to argue instead, those supplementary grounds. There was no objection from the Crown and permission was granted to proceed in that manner. The supplementary grounds read as follows:
“1. The learned sentencing judge erred in law in sentencing the Appellant to:
a. 15 years' imprisonment [sic] for the offence of illegal possession of firearm; and
b. 25 years' imprisonment for the offence of rape which were manifestly excessive in the circumstances of the case.
2. The sentencing judge erred in failing in law to take into consideration when sentencing the appellant, the time he had already spent in custody.”
The application for permission to appeal against conviction was not pursued.
Mr Wilson submitted that whilst the learned trial judge in his consideration of sentence took into account the appellant's previous convictions and expressed disappointment that he did not avail himself of the opportunity of rehabilitation, there was no indication of how he arrived at the sentences imposed. In this regard he referred to the Sentencing Guidelines for use by Judges of the Supreme Court and Parish Courts, December 2017 (Sentencing Guidelines) and the well-known cases of Meisha Clement v R [2016] JMCA Crim 26 and R v Evrald Dunkley (unreported), Court of Appeal, Jamaica, Resident Magistrates' Criminal Appeal No 55/2001, judgment delivered 5 July 2002.
Mr Wilson submitted that the sentence of 15 years' imprisonment was manifestly excessive. He stated that the sentencing range for this offence is seven to 15 years' imprisonment range with a usual starting point of 10 years. Having referred to several authorities including Brian Williams v R [2012] JMCA Crim 34, Keith Reid v R [2014] JMCA Crim 39, Craig Mitchell v R [2019] JMCA Crim 8, Cornell Grizzle v R [2015] JMCA Crim 15, Marlon Blair v R [2014] JMCA Crim 59, Kenneth Hylton v R [2013] JMCA Crim 57 and Aaron Lewis v R [2015] JMCA Crim 17, he submitted that a sentence of 12 years' imprisonment would be appropriate.
Counsel submitted that the learned trial judge erred in two respects. Firstly, by not fixing a starting point and secondly, by not stipulating a period which the appellant should serve before becoming eligible for parole. Reference was made to sections 6(1)(a) and (2) of the Sexual Offences Act in support of the second submission.
It was also submitted that McDonald-Bishop JA in Daniel Roulston v R [2018] JMCA Crim 20 had suggested that the statutory minimum of 15 years should be considered as the starting point. He pointed out that in that case the sentence of 20 years was substituted by a sentence of 15 years with the stipulation that the appellant serve 13 years before being eligible for parole.
Counsel also referred to Oneil Murray v R [2014] JMCA Crim 25 in which the sentences for rape were reduced to 18 years and 15 years in circumstances where a firearm was used. Reference was also made to Jimmy Murray v R [2015] JMCA Crim 19 (18 years), Steven Collins v R [2016] JMCA Crim 17 (15 years' imprisonment and eligible for parole after 10 years for the offence of sexual intercourse with a person under the age of 16 years) and Percival Campbell v R [2013] JMCA Crim 48 (the sentence of 21 years was reduced to 18 years in circumstances in which no was weapon used).
It was submitted that based on the above cases, the sentence of 25 years' imprisonment was beyond the acceptable range of sentences for the offence of rape and therefore manifestly excessive. He suggested that a sentence of 17 years would be appropriate in light of the appellant's previous...
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