Dwayne Strachan v R

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA
• Judgment Date: 13 May 2016
• Neutral Citation: JM 2016 CA 48
• Docket Number: CRIMINAL APPEAL NO 10/2015
• Court: Court of Appeal (Jamaica)
• Date: 13 May 2016

Dwayne Strachan

and

R

[2016] JMCA Crim 16

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice Williams JA (AG)

CRIMINAL APPEAL NO 10/2015

JAMAICA

IN THE COURT OF APPEAL

RESIDENT MAGISTRATES'

Leroy Equiano for the appellant

Jeremy Taylor and Gavin Stewart for the Crown

McDonald-Bishop JA

1 This is an appeal brought by Mr Dwayne Strachan, the appellant, against sentence imposed on him on 18 March 2015 at a ‘night court’ sitting of the Resident Magistrate's Court for the parish of Saint Catherine held at Greater Portmore. He was sentenced by the learned Resident Magistrate to 20 days imprisonment at hard labour following a plea of guilty to an information that charged him with breaching his tenant's quiet enjoyment in contravention of section 27 of the Rent Restriction Act.

2 The particulars of the offence were that on Tuesday, 3 June 2014, he ‘entered premises located at Southborough rented to Latoya Bailey and re-rented the premises with all her belongings breaching her quiet enjoyment contrary to section 27 of the Rent Restriction Act’.

3 He was not represented by counsel in those proceedings.

4 On 19 January 2016, after hearing submissions and considering a social enquiry report requested by this court, we ordered as follows:

• ‘1. Appeal against sentence allowed.

• 2. Sentence of 20 days imprisonment set aside and a sentence of seven days substituted therefor.

• 3. Sentence is reckoned to have commenced on 18 March 2015 (and has already been served).’

5 We promised then to reduce our reasons for our decision to writing and to produce them at a later date. These are our reasons.

The factual background

6 The facts that are taken as constituting the background to the conviction of the appellant are those that have been relayed by the learned Resident Magistrate as part of the record of proceedings. In outline, those facts are as follows:

• (a) On 28 April 2013, the complainant, Latoya Bailey, rented a one bedroom dwelling house from the appellant in Southborough, Portmore in the parish of Saint Catherine at a rental of $16,000.00 monthly, inclusive of light and water. The complainant was employed in the parish of St James and as such would, at times, be absent from the rented premises.

• (b) On 27 September 2014 (evidently, an error, seems that it should be 2013) the complainant had outstanding rent for the appellant and she advised him that she would be late in paying him. During that month she left home for a day. Upon her return her electricity supply was disconnected, causing food items in her refrigerator to be spoilt. She complained to the appellant and he apologized and promised to restore her electricity supply. The complainant subsequently told him she would be leaving home at 8:30 am. She, however, overslept and did not leave as planned. While she was in the room, the appellant came in with her kitchen knife in his hand and upon seeing that she was there he said, ‘Me think you neva deh ya’.

• (c) Up to December 2013, the complainant was in arrears with her rental payments and so on 17 December 2013, she paid the appellant $20,000.00. She then left for Montego Bay.

• (d) In January 2014, the appellant went inside the complainant's room, without her permission, and conducted a search. He found telephone numbers for one of her friends and for her aunt who resides in the United States of America. He called them. He subsequently sent the complainant several text messages, one of which advised her that he had obtained permission from the court to sell her belongings. She at no time received a notice to quit from him.

• (e) The complainant subsequently went to the dwelling house [apparently in June 2014 (date not stated)] but was unable to gain access as the lock to the grill had been changed. She was unable to retrieve her furniture or important documents. She made a report to the police about the appellant's actions. She then went to the St Catherine Resident Magistrate's Court's office in Spanish Town on 6 June 2014, where she initiated court proceedings against the appellant.

7 The appellant was later summoned to appear in court to answer to the information that was laid against him. He pleaded guilty and was sentenced.

8 Following the filing of his appeal, the appellant was granted bail by this court, pending the determination of the appeal. By the time he was bailed, he had already served seven days of the 20 days imprisonment that was imposed on him.

Grounds of appeal

9 The appellant filed three grounds of appeal as follows:

• ‘1. The Appellant did not get a fair trial.

• 2. The evidence provided did not support the finding of guilt.

• 3. The sentence was manifestly excessive in the circumstances.’

The proceedings on appeal

10 At the first hearing of the appeal on 12 November 2015, Mr Equiano, who appeared for the appellant, indicated to the court that grounds one and two would not be pursued because the narrative given by the appellant, as to the procedure that took place in court, coincided with the learned Resident Magistrate's report that the appellant had pleaded guilty. The conviction was, therefore, not contested. In the circumstances, leave was granted to the appellant to abandon grounds one and two.

11 The appellant's discontentment, as Mr Equiano pointed out, related solely to the sentence. His complaint, as set out in ground three, was that the sentence of the court was manifestly excessive in the circumstances.

12 In support of the appeal, the appellant filed an affidavit on 6 November 2015, in which he deposed to certain matters that he stated he had indicated to the learned Resident Magistrate at the time of the hearing but which were not included in the record of proceedings. He also explained his reason for entering the guilty plea and the circumstances in which he did so. We observed that some of the matters he spoke of in his affidavit were not reflected in the record of the proceedings transmitted to this court.

13 The question arose as to whether, indeed, the learned Resident Magistrate was mindful of all the facts asserted by the appellant in his affidavit at the time she sentenced him. We thought it only fair that the learned Resident Magistrate should be given an opportunity to see what the appellant was contending and to give her the opportunity to respond to his assertions.

14 Also, in the light of the appellant's assertions, it was necessary for this court to ascertain the version of events on which the learned Resident Magistrate had sentenced him. The question whether he was sentenced on his version or the complainant's version became a live consideration in the light of his guilty plea, there being no indication that a ‘Newton hearing’ was conducted by the learned Resident Magistrate to solve, what appeared to be on the face of the appellant's affidavit, disputed questions of fact. Therefore, the resolution of this issue was important in order for this court to properly determine the appropriateness of the sentence that was imposed.

15 Consequently, on 12 November 2015, the first date set for the hearing of the appeal, the following orders were made:

• ‘1. The appeal is taken out of the list and set for 14 December 2015.

• 2. The registrar of this court shall send to the learned Resident Magistrate a copy of the affidavit of Mr Dwayne Strachan filed herein on 6 November 2015, and require from her an affidavit in response on or before 7 December 2015, which affidavit shall exhibit a copy of the notes of proceedings taken at the time of the hearing before her which shall be certified by the Clerk of the Courts for the parish of Saint Catherine.

• 3. The registrar shall provide copies of the learned Resident Magistrate's affidavit to the attorneys-at—law for the appellant and the respondent.

• 4. The appellant's bail is extended to 14 December 2015.’

16 We will pause here to renew, what is by now clichéd, the call that the contemporary notes of the proceedings taken at the time a person has pleaded guilty and is being sentenced are to be transmitted to this court as part of the record of the proceedings. See Marc Wilson v R [2014] JMCA Crim 41 at paragraphs [21]–[25]. It is worth repeating that it puts the court at a grave disadvantage when the record of proceedings does not include those notes and it also contributes to the delay in the disposal of matters when the hearing has to be adjourned to procure them. We ask that the Clerks of the Courts, whose statutory responsibility it is to transmit the record of proceedings, do constantly bear this requirement in mind.

17 We now continue. An affidavit from the learned Resident Magistrate, responding to the appellant's affidavit and exhibiting the contemporaneous notes of the proceedings, was filed on 7 December 2015, in accordance with the orders of the court. The learned Resident Magistrate, in her affidavit, indicated, among other things, that both the appellant and complainant were present and that at no time did the appellant take issue with any aspect of the facts presented by the Clerk of the Court. The learned Resident Magistrate further deposed that at no time during this exercise did the appellant bring to the court's attention some of the matters he spoke of in his affidavit. She stated that both he and the complainant were allowed to speak and he did not give the slightest indication that he did not understand any word or phrase used. According to her, ‘…both parties were expressive and seemingly intelligent and neither expressed any misunderstanding of any aspect of the proceedings’.

18 Upon receipt of the learned Resident Magistrate's affidavit and the notes of proceedings duly exhibited to it, the appellant filed no affidavit in response and Mr Equiano at the hearing on 14 December 2015,...