Delton Smikle v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 27 November 2020 |
| Neutral Citation | JM 2020 CA 147 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME CRIMINAL APPEAL NO 88/2017 |
| Date | 27 November 2020 |
[2020] JMCA Crim 48
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Miss Justice P Williams JA
THE HON Miss Justice Simmons JA (AG)
SUPREME CRIMINAL APPEAL NO 88/2017
Miss Melrose Reid instructed by Melrose G Reid & Associates for the appellant
Miss Paula Llewellyn QC, Director of Public Prosecutions, and Kemoy McEkron for the Crown
Simmons JA (AG)
On 28 July 2017, after a trial before a judge and jury in the Circuit Court for the parish of Saint Thomas, Mr Delton Smikle (‘the appellant’), was found guilty on an indictment charging him with the offences of forcible abduction (count 1) and having sexual intercourse with a person under the age of 16 years (count 2). On 22 September 2017, he was sentenced to 15 years' imprisonment at hard labour for the offence of forcible abduction and 20 years' imprisonment at hard labour for the offence of having sexual intercourse with a person under the age of 16 years, to run concurrently. It was also ordered that his name be entered in the Sex Offender Registry.
On 1 April 2019, a single judge of this court granted the appellant leave to appeal against conviction (in respect of count 1), and sentence (in respect of both counts).
By way of an amended notice of application to appeal against conviction and sentence, filed on 4 April 2019, the appellant abandoned his appeal against conviction and indicated that he wished to pursue his appeal in respect of sentence only.
The full transcript of the proceedings was not available and as such we have had to rely on the facts as outlined by the learned trial judge in her summation.
On 28 November 2012, the appellant, who was a taxi driver, picked up the complainant and her older sister to transport them to school. At the time the complainant was 11 years old. The appellant took the older sister to her destination first while the complainant remained in his taxi. However, instead of taking her to school, he took her to his house where he had sexual intercourse with her. Her evidence was that he pulled her out of the car and pushed her into the kitchen and began taking off her school uniform. He then kissed her on the lips and began fondling her breasts. He removed his clothes, pushed her on the bed. She tried to keep her legs closed but he overpowered her and inserted his penis in her vagina. At the time she was crying and tried to fight him off. The appellant later transported her to school but she arrived late. In the evening of that same day, the complainant told her sister what had happened to her and a report was made to the police. The appellant was subsequently arrested and charged.
In his unsworn statement he admitted that he picked up both the complainant and her sister to take them to school and did so. He said that he never molested the complainant and that she and her sister were telling “a big lie” on him.
On 4 April 2019, the appellant filed an amended notice of appeal in which he sought to challenge the sentences imposed on him on the basis that they were manifestly excessive. As stated previously, he was granted permission to appeal the sentences imposed on both counts.
Miss Reid, for the appellant, submitted that a sentence of four years' imprisonment at hard labour would be more appropriate. She opined that the learned trial judge in her approach to sentencing appeared to have confused this count with count 2 as she seemed to have been addressing both counts at the same time with no line of demarcation between them. It was submitted that, as a consequence, the trial judge fell into error. By way of illustration, reference was made to pages 105–110 of the transcript where the judge began by stating:
“I will start at 15 years, that is the usual starting point for the offence listed in Count 2.”
Miss Reid indicated that the learned trial judge then proceeded to deal with the wrongfulness of having sexual intercourse with the complainant and did not address the offence of forcible abduction.
It was submitted that the end result of that exercise was the imposition of a sentence that was manifestly excessive. In support of that submission, reference was made to Mervin Jarrett v R [2017] JMCA Crim 18, in which the appellant had been sentenced to six years' imprisonment at hard labour and Donald Gregory v R [2017] JMCA Crim 16, in which the sentence of seven years' imprisonment at hard labour was affirmed.
Counsel also referred to Dwayne White v R [2013] JMCA Crim 11, in which the appellant was sentenced to 10 years' imprisonment in circumstances where a firearm had been used in the commission of the offence.
It was also submitted that the appellant should have been charged under section 20(1) of the Sexual Offences Act which carries a lesser penalty than section 17 as no weapon was used in the commission of the offence. Section 20(1) deals with the abduction of a child with the intent to have sexual intercourse.
Counsel also stated that the trial judge, contrary to established principles, failed to take into account the fact that the appellant had a good social enquiry report. In this regard, she referred to Christopher Brown v R [2014] JMCA Crim 5.
Miss Reid submitted that the learned trial judge also erred when she used the maximum sentence of 15 years as the starting point. She submitted that, in arriving at an appropriate starting point, the aggravating and mitigating factors were to be taken into account and the learned trial judge failed to consider some of the mitigating factors. For example, the fact that the appellant received a good community report and his remorse. In this regard, reference was made to Meisha Clement v R [2016] JMCA Crim 26, in which Morrison P set out the procedure which should guide the sentencing judge.
Counsel stated that the usual starting point for the offence of forcible abduction is five years and the normal range of sentence is three to 10 years. In this regard, she relied on the Sentencing Guidelines for use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017 (“the Sentencing Guidelines”). She suggested that the aggravating factors would increase the sentence to nine years and the mitigating factors would warrant a reduction of two years. In the circumstances, it was submitted that a sentence of between seven and eight years would have been appropriate.
The Crown, although conceding that it was difficult to decipher in clear terms how the learned trial judge arrived at the sentence for each offence, submitted that the sentences imposed were not manifestly excessive.
Mr McEkron submitted that the cases of Mervin Jarrett v R and Dwayne White v R, which were relied on by the appellant, do not assist as they can be distinguished on the basis that those offences were committed in 2009 and 2006 respectively and therefore predate the Sexual Offences Act. He pointed to section 17 of the Sexual Offences Act which states as follows:
“A person commits an offence who by force takes away or detains another person, against the will of that person, with intent to—
(a) have sexual intercourse with or commit grievous sexual assault upon that person;
(b) cause that person to be married or to have sexual intercourse with or to be subjected to an act of grievous sexual assault by another person.”
He stated that at pages 37 and 38 of the transcript the learned trial judge correctly outlined the elements of the offence to the jury. Mr McEkron also pointed out that section 17 was of general application and was enacted to protect women, girls and boys. He stated that the learned trial judge's definition of force at lines 18 – 25 of page 37 was a correct statement of the law. As such, the appellant was correctly charged under section 17 of the Sexual Offences Act.
Mr McEkron submitted that although the learned trial judge did not strictly adhere to the methodology prescribed by the Sentencing Guidelines, the approach of this court in Samuel Blake v R [2015] JMCA Crim 9 ought to be adopted. In the circumstances, it was argued that the learned trial judge's failure to indicate the mathematical formula employed with the required precision for both counts was not fatal and should not weigh heavily in the court's consideration of whether the sentence ought to be reduced.
It was however, submitted that in light of the learned trial judge's failure to indicate how the sentence of 15 years' imprisonment was arrived at, the sentence ought to be recalculated by this court. In this regard, counsel stated that the usual starting point of five years for abduction without the use of violence, ought to be used. It was suggested that the aggravating factors would increase the sentence by seven years. The mitigating factors and the time spent on remand (six weeks) he suggested, would reduce the sentence by three years. A sentence of nine years' imprisonment was suggested as being appropriate.
Miss Reid submitted that the learned trial judge failed to indicate how she arrived at the sentence of 20 years' imprisonment at hard labour. Reference was made to page 110 lines 16 – 22 of the transcript where the learned judge said:
“The sentence of the court on count 2 is 20 years imprisonment [sic] at hard labour. Your conviction will be recorded in the Sex Offender Registry.”
Miss Reid submitted that the learned trial judge failed to follow the guidelines in Meisha Clement v R and it was unclear how she arrived at the sentence of 20 years' imprisonment. Counsel reminded the court that the learned trial judge had begun to address this count at page 105 (lines 7 – 9) and then proceeded to embark...
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