Dunkley (Everald)

• Jurisdiction: Jamaica
• Judge: HARRISON. J.A:
• Judgment Date: 05 July 2002
• Neutral Citation: JM 2002 CA 28
• Judgment citation (vLex): [2002] 7 JJC 0505
• Court: Court of Appeal (Jamaica)
• Date: 05 July 2002

IN THE COURT OF APPEAL

Miss Marsha Smith Instructed by Messrs E. A. Smith and Company for the appellant

Lambert Johnson and Miss Jenice Neathly for Crown

BEFORE:

THE HON MR. JUSTICE BINGHAM, J.A THE HON MR. JUSTICE HARRISON, J.A THE HON MR. JUSTICE SMITH J.A. (Ag.)

REGINA

V

EVRALD DUNKLEY

CRIMINAL LAW - Money - Obtaining money by false pretences - Appeal against sentence - Whether sentence "harsh and unreasonable"

HARRISON. J.A:

1 This is an appeal against a sentence of twelve months imprisonment at hard labour imposed on the appellant by Her Honour Mrs Carol DaCosta, Resident Magistrate, at the Resident Magistrate's Court held at Ocho Rios in the parish of St Ann, on the 17th day of September 2001, for the offence of obtaining money by false pretences. The appellant had pleaded guilty to the charge.

2 We heard the arguments and allowed the appeal. We set aside the sentence of twelve months' imprisonment and varied it so that the appellant, having been in custody for a period of eight (8) months, would be released on May 28, 2002. These are our reasons in writing.

3 The facts are that in August 2000, in Ocho Rios, St Ann, the appellant told the complainant, the owner of a private motor car, which she was then operating illegally as a public passenger vehicle, that he could obtain for her from the Transport Authority in Kingston, a public passenger vehicle licence (PPV) for the said motor car. She paid the appellant $17,000.00 at his request to obtain the said licence. Not having received any such licence, and after several excuses from the appellant, the complainant made a report to the police in July 2001. On September 14 2001, the appellant was arrested by the police, on a warrant and after he was cautioned he said, "Officer mi have part of the money it never have fi reach so far". The appellant pleaded guilty on his first appearance in court and was sentenced as stated above.

4 Counsel for the appellant argued that the learned Resident Magistrate failed to enquire into the antecedents of the appellant prior to sentencing him, ought not to have imprisoned him without the option of a fine, he having made full restitution, or could have given him the benefit of a suspended sentence. In all the circumstances, the sentence was "harsh and unreasonable".

5 Sentencing is the process by which the ultimate decision of punishment is reached, and then the sentencer declares the nature of the punishment, after conviction for an offence. The principles which govern the method by which that ultimate goal is achieved, have been well formulated and generally accepted. The aim of the sentence is to satisfy, the goals of:

• (a) Retribution;

• (b) Deterrence;

• (c) reformation and

• (d) protection of the society

6 or any one or a combination of such goals, depending on the circumstances of the particular case.

7 The sentencer commences this process after conviction by determining, at the initial stage, the type of sentence suitable for the offence being dealt with. He or she first considers whether a noncustodial sentence is appropriate, including a community service order. If so, it is imposed. If not, consideration is given to the other options, ranging from the suspended sentence to a short term of imprisonment. This is the approach adopted in England, and generally employed in Jamaica, as a useful guide to sentencing and outlined in the case of R v Linda Clarke [1982] 4 Cr. App. R(S.) 197. That case recommended that after having considered the above options, the sentencer may consider:

"If a partially suspended sentence is inappropriate, what is the best possible total sentence which can be imposed bearing in mind the circumstances of the case and the record of the offender ". (Emphasis added)

8 If therefore the sentencer considers that the...