Dwayne Miller v R
| Jurisdiction | Jamaica |
| Judge | Edwards JA |
| Judgment Date | 25 January 2022 |
| Neutral Citation | JM 2022 CA 8 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 66/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 7
IN THE COURT OF APPEAL
THE HON. Miss Justice P Williams JA
THE HON Miss Justice Edwards JA
THE HON Miss Justice Simmons JA
SUPREME COURT CRIMINAL APPEAL NO 66/2018
Ms Jacqueline Cummings for the appellant
Ms Maxine Jackson and Ms Christina Porter for the Crown
On 27 June 2018 the appellant pleaded guilty in the Circuit Court in the parish of Saint Mary before Wint-Blair J (‘the learned trial judge’) to one count of having sexual intercourse with a person under 16 years of age, contrary to section 10(1) of the Sexual Offences Act. On 5 July 2018 the learned trial judge sentenced the appellant to 18 years' imprisonment at hard labour with a stipulation that he serve 12 years before being eligible for parole.
The facts briefly are that the appellant, who was 29 years old at the time, had sexual intercourse with the complainant, who, at the time, was 12 years old. The complainant is his cousin, she being the daughter of his mother's niece.
The appellant was granted leave to appeal sentence by a single judge of this court. Counsel for the appellant was permitted to abandon the original grounds filed and argue three grounds of appeal against sentence as follows:
“Ground one-The sentence of 18 years' imprisonment is manifestly excessive having regard to all of the circumstances of this case.
Ground two-The learned trial judge applied the wrong principles of law in accessing the appropriate sentence to impose on the Appellant herein.
Ground three-The judge erred in exercising her discretion in ordering that the Appellant's name be placed on the Sex Offender Registry.”
This appeal raises two main issues. The first is whether the sentence is manifestly excessive. This arises from grounds one and two. The second is whether the learned trial judge erred in ordering that the appellant be entered in the Sex Offender Registry. This arises from ground 3. I will deal with the issue arising from grounds one and two first.
In submitting on grounds one and two, counsel for the appellant, Ms Cummings, contends that the sentence of 18 years' imprisonment at hard labour is manifestly excessive and ought to be set aside. She maintains that a sentence of 8 years was more appropriate. Counsel, in her submissions to this court, contends that the learned trial judge applied the wrong principles and made several errors in sentencing the appellant. Her contentions in summary are that:
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(i) The learned trial judge erred in applying a starting point of 20 years when the Sentencing Guidelines for Use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017 (‘the Sentencing Guidelines’) suggests a starting point of 15 years;
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(ii) The appellant pleaded guilty but the sentence imposed fell outside the range of sentences usually applied to such cases when a guilty plea is entered;
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(iii) The learned trial judge erred in giving more weight to the aggravating factors and failed to give adequate weight to the mitigating factors;
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(iv) No force or violence was used in the commission of the offence;
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(v) The appellant had no previous convictions;
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(vi) The offence was not premeditated;
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(vii) The appellant was previously of unblemished character;
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(viii) The social enquiry report showed that the appellant was highly regarded in the community;
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(ix) The learned trial judge erred in not giving the appellant the appropriate reduction in sentence on his guilty plea; and
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(x) A sentence of eight years was more appropriate.
Counsel for the Crown, Miss Porter, in her submissions, conceded that the learned trial judge erred in her approach to the sentencing exercise. She submitted that although the learned trial judge gave due regard to the general principles and objectives of sentencing and directed her mind to deterrence, prevention rehabilitation and retribution, the methodology used by her in arriving at the sentence was incorrect. She also conceded that the learned trial judge applied the wrong starting point and ought to have started at 15 years. Crown Counsel also expressed the view that the learned trial judge may have given too little weight to the mitigating factors in the case, while placing heavy weight on the aggravating factors. She submitted that, in applying a 25% discount on account of the guilty plea, the learned trial judge may have erred in the exercise of her discretion, in that, having found that the plea was not made on the first relevant occasion (for which there was no evidence on the transcript to support that finding) the learned trial judge ought to have considered applying a 35% reduction.
Based on Crown Counsel's calculations of what the learned trial judge ought properly to have done, she submitted that a sentence of nine years and eight months was more appropriate. Crown Counsel also maintained that if the appellant had indeed pleaded guilty on the first relevant date then she would agree that a sentence of eight years would be appropriate.
We commend Counsel for the Crown in the stance she took which, in the circumstances of this case, was inevitable. We agree that the learned trial judge's approach to the application of the appellant's sentence was, in some respects, flawed. The learned trial judge begun by declaring, correctly, that the maximum sentence for the offence for which the appellant was pleading guilty was life imprisonment. She found, however, that because the appellant pleaded guilty life imprisonment was deemed to be 30 years. This she did by virtue of section 42F of the Criminal Justice Administration Act. However, the learned trial judge seems to have interpreted the section incorrectly.
Curiously, she then determined that because the appellant had pleaded guilty she would not start at the maximum of 30 years but would instead start at 20 years. This was indeed a curious approach to take. For, as will be seen, starting at the maximum of 30 years was an incorrect approach to take. The deduction 10 years from the maximum of 30 years as a result of the guilty plea was also an incorrect approach to take. Furthermore, having reduced the maximum sentence by 10 years because of the guilty plea, the learned trial judge later deducted a further five years as a discount on account of the guilty, which computes to a 25% discount on the sentence she arrived at. This approach in calculating the final sentence which was appropriate to impose on the appellant was an obvious error.
Section 42F of the Criminal Justice (Administration) Act indicates when the maximum of 30 years should be applied in the case of a guilty plea. It states:
“If the offence to which the offender pleads guilty is one for which the maximum sentence is life imprisonment, and that is the sentence which the sentencing judge would have imposed had he or she tried and convicted the offender, then for the purposes of calculating a reduced sentence on account of the guilty plea, the sentencing judge should treat the term of life imprisonment as though it was one of 30 years.” (Emphasis added)
In this case, there was no indication that the learned trial judge considered this case to be one in which she would have imposed the maximum sentence of life imprisonment, if the case had gone to trial. The principle also is that the maximum sentence is reserved for the cases which are examples of the worst of the worst (see Meisha Clement v R [2016] JMCA Crim 26 at paras. [27–28]). There is no assertion that this case fell into that category, even though the learned trial judge considered the appellant's behaviour to be reprehensible. The learned trial judge, therefore, seemed to have confused the applicable principles.
As conceded by counsel for the Crown, the correct approach the learned trial judge ought to have taken was that which was set out in R v Everald Dunkley (unreported), Court of Appeal, Jamaica, Resident Magistrates Criminal Appeal No 55/2001, judgment delivered 5 July 2002, Meisha Clement v R and in the Sentencing Guidelines, the latter of which was available to the learned trial judge at the date of sentence. The learned trial judge was, therefore, required to determine the normal range of sentence for this particular offence and thereafter choose an appropriate starting point aided by the Sentencing Guidelines and the appropriate authorities. She was to then consider the impact of any relevant aggravating and mitigating features in the case and...
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