Dwayne Shakespeare v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: ‘Fraser, J.A.’
• Judgment Date: 25 July 2025
• Neutral Citation: JM 2025 CA 59
• Year: 2025
• Docket Number: Criminal Appeal No. 65/2018

Dwayne Shakespeare

and

R

Williams, J.A.; Fraser, J.A.; Brown, J.A.

Criminal Appeal No. 65/2018

Court of Appeal

Appearances:

Anthony Williams for the appellant.

Ms. Kathy-Ann Pyke and Ms. Ashley Innis for the Crown.

ORAL JUDGMENT

INTRODUCTION

‘Fraser, J.A.’

1 On 1 June 2018, the appellant, Dwayne Shakespeare, was convicted in the High Court Division of the Gun Court holden at King Street in the parish of Kingston, on an indictment for the following offences: illegal possession of firearm (count one), illegal possession of ammunition (count two), both contrary to section 20(1)(b) of the Firearms Act and wounding with intent, contrary to section 20 of the Offences Against the Person Act (OAPA) (count three). On the same day he was sentenced to serve terms of imprisonment at hard labour of seven years on both counts one and two, and 15 years on count three. The sentences were ordered to run concurrently.

2 A single judge of this court refused his application for leave to appeal his convictions but granted him leave to appeal his sentence. The renewed application for leave to appeal conviction and the appeal against sentence came before the court for hearing on 21 July 2025.

PROCEEDINGS IN THE COURT BELOW

THE CASE FOR THE PROSECUTION

3 On 19 November 2013, at about 11:00 a.m., the complainant, Mr. Fabian McQueen, was seated by the roadside on Brown's Lane, Morant Bay in the parish of Saint Thomas. He was working on a bicycle about 10 feet away from his doorway. He felt the presence of someone, held up his head and saw the appellant who was three to four feet away from him. The appellant said, “Pussy, a yuh alone deh yah?” The appellant then squeezed the trigger of the gun he was armed with. The complainant heard explosions. Upon hearing the third explosion, he realised he had been shot in the left shoulder.

4 The complainant flung a machete at the appellant who avoided it and turned back to where he was coming from, while continuing to squeeze the trigger. However, no explosions were heard at this time. After the appellant left, the complainant went down and then came back up the lane, got assistance and went to the Princess Margaret Hospital. A firearm with ammunition was recovered at the scene of the shooting.

THE CASE FOR THE DEFENCE

5 The appellant denied being involved. He relied on an alibi, contending that he was not in the parish of St Thomas, but was in Kingston with his mother when the incident occurred. He also indicated that the complainant told a lie on him out of malice. He called a witness to testify to his good character.

GROUNDS OF APPEAL

6 The original grounds of appeal filed by the applicant complained of (i) “misidentity” by the witness, (ii) lack of evidence, (iii) unfair trial and (iv) miscarriage of justice. Mr. Williams sought and received permission to abandon those original grounds and to argue the following supplemental grounds:

“Ground 1

The Learned Trial Judge erred in Law by failing to issue a certificate pursuant to the provisions of Section 42K of the Criminal Justice (Administration) Act (as Amended in 2015) [The CJAA] despite her inclination during sentencing that had she not been bound by the statutory minimum sentence, she would have credited him with the period she had calculated the Applicant would have spent on remand. This failure to issue the certificate would or has cause[d] an injustice to the Applicant in rendering the sentence for Wounding With Intent manifestly excessive

Ground 2

Further and/or in the alternative to Ground 1, The Learned Trial Judge erred in Law by failing to alert her mind to or to apply the provisions of Section 42K of the Criminal Justice (Administration) Act (as Amended in 2015) [The CJAA] despite her inclination during sentencing that had she not been bound by the statutory minimum sentence, she would have credited the Applicant with the period she had calculated the Applicant would have spent on remand. This failure to consider or to apply the said Section 42K of the CJAA to issue the certificate would or has cause[d] an injustice to the Applicant in rendering the sentence imposed for Wounding With Intent manifestly excessive.”

SUBMISSIONS

MR WILLIAMS FOR THE APPELLANT

7 Mr. Williams, in his submissions, candidly stated that the learned trial judge had applied all the correct legal principles dealing with identification, alibi, evidence of good character and the other relevant areas that needed to be covered in the summation. As he found the directions impeccable, counsel indicated that there was no basis on which to challenge the convictions.

8 Regarding the sentences, Mr. Williams reviewed the cases of Daniel Roulston v. R [2018] J.M.C.A. Crim. 20 and Meisha Clement v. R [2016] J.M.C.A. Crim. 26. He submitted that the learned trial judge applied the accepted legal principles to the sentencing exercise and that the sentences could not be said to be manifestly excessive, save and except the sentence for wounding with intent on count three. This, especially as he highlighted the cases of Lamoye Paul v. R [2017] J.M.C.A. Crim. 41 and Troy Rogers v. R [2018] J.M.C.A. Crim. 20, in which this court indicated the starting point for illegal possession of firearm is 12 to 15 years, where there was not just possession simpliciter but also use of the firearm.

9 The concern raised by Mr. Williams about the sentence passed on count three is in these terms. The learned trial judge, having stated in her sentencing remarks that had she not been bound by the mandatory minimum sentence of 15 years for wounding with intent, she would have credited the appellant with the time he spent on pre-sentence remand, failed to issue a certificate under section 42K of the Criminal Justice (Administration) Act (‘CJAA’). This failure caused an injustice to the appellant as it caused his sentence to be manifestly excessive.

10 Based on the intimation expressed by the learned trial judge, despite her failure to issue a certificate, Mr. Williams submitted this court had the power to act within the spirit of section 42K and credit the appellant with the time spent on pre-sentence remand. He relied on the case of Kerone Morris v. R [2021] J.M.C.A. Crim. 10, which he distinguished from that of Shaquille Powell & Kimani Walters v. R [2025] J.M.C.A. Crim. 3.

MS PYKE FOR THE CROWN

11 In her submissions, Ms. Pyke supported the position advanced by Mr. Williams. She noted that the learned judge referred to the case of Ewin Harriott v. R [2018] J.M.C.A. Crim. 22 as precluding the imposition of a sentence below the mandatory minimum in the absence of a section 42K certificate. In addition to the case of Kerone Morris v. R, Ms. Pyke also cited the case of Lennox Golding v. R [2022] J.M.C.A. Crim. 34, which followed the reasoning in Kerone Morris v. R. She also distinguished Shaquille Powell & Kimani Walters v. R. Additionally, Ms. Pyke cited Leopold Matthews v. R [2023] J.M.C.A. Crim. 36, which examined the considerations this court should assess in determining whether a sentence should be reduced below the mandatory minimum, where a section 42K certificate has been issued, or based on statements made by the sentencing judge, in effect, deemed to have been issued.

12 Ms. Pyke also raised a separate basis on which the court could reduce the sentence of the appellant in the absence of a section 42K certificate. She cited the case of Cecil Moore v. R (unreported), Jamaica, Court of Appeal, Supreme Court Criminal Appeal No 25/2016, judgment delivered 6 March 2025 (with reasons to follow), which she submitted has in effect overruled Ewin Harriott v. R. Based on Cecil Moore v. R she submitted that the appellant must be given credit for pre-sentence remand, even where the reduction would result in a sentence below the statutory minimum. Counsel also referred the court to the case of Garfield Green v. R [2025] J.M.C.A. Crim. 12, which followed the principle in Cecil Moore v. R.

13 Counsel, therefore, agreed that the appellant's sentence on count three should be reduced to take account of the time he spent in pre-sentence custody. In calculating this time, counsel helpfully pointed to a passage on page 31 of the transcript which showed that the appellant was seen in custody on 28 December 2013, but there was no indication of how long he had spent in custody up to then. She suggested that might have influenced the learned trial judge to round up the 11 months he was known to have spent...