Ewin Harriott v R

• Jurisdiction: Jamaica
• Judge: Pusey JA
• Judgment Date: 28 May 2018
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 99/2015
• Date: 28 May 2018

Ewin Harriott

and

R

Before:

THE HON Mr Justice Morrison P

THE HON Miss Justice Phillips JA

THE HON Mr Justice Pusey JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 99/2015

IN THE COURT OF APPEAL

Criminal practice and procedure - Sentencing — Application of credit for time served — Deduction of actual time spent on remand from sentence.

Delano Harrison QC for the appellant

Mrs Andrea Martin-Swaby and Miss Yanique Henry for the Crown

Pusey JA (AG)

1 Mr Harriott was convicted along with another person in the Saint Elizabeth Circuit Court on 9 November 2015, following a trial before Campbell J (‘the judge’) and a jury on a 12 count indictment. He was convicted on nine counts where counts 1, 4 and 7 were for sexual intercourse with a person under the age of 16 years; counts 2, 5 and 8 for buggery; and counts 3, 6 and 9 for grievous sexual assault.

2 The complainant resided with her aunt since she was an infant. Her mother expressed concerns about her education and subsequently, the complainant's residence was changed to that of her mother. Some two years after this change, she visited her aunt and began behaving strangely and begged not to return to her mother. However, her aunt sent her back to her mother.

3 Sometime later, the complainant was sent by her mother to her aunt based on an assertion that she was not behaving properly. Her aunt made observations about the complainant's behaviour and based on those observations, she examined the complainant's vagina.

4 Based on what the aunt saw, a report was made to the police. At the trial, the complainant gave evidence that when she resided with her mother, the appellant would visit that house and it was during those visits that he sexually assaulted her.

5 During sentencing, the question of the length of the sentence being imposed had the rather helpful intervention of counsel for the Crown. The judge had originally contemplated a sentence of 10 years on each count. Counsel for the Crown, however, pointed to the fact that the mandatory minimum sentence under the Sexual Offences Act for grievous sexual assault is 15 years and cited the case of Linford McIntosh v R [2015] JMCA Crim 26, in which this court pointed out a similar error and provided guidance for the courts.

6 The learned trial judge accepted this guidance and on counts 3, 6 and 9 imposed a sentence of 15 years in compliance with section 6(1)(b) of the Sexual Offences Act which states that:

“6 (1) A person who –

• (a) …

• (b) commits the offence of grievous sexual assault is liable–

  • (i) on summary conviction in a Resident Magistrate's Court, to imprisonment for a term not exceeding three years;

  • (ii) on conviction in a Circuit court, to imprisonment for life or such other terms as the court considers appropriate not being less than fifteen years.”

7 The single judge on 9 November 2017 considered this matter and refused the application for leave to appeal against conviction but granted leave to appeal against sentence to allow for consideration to be given to the question of whether the accused ought to be given credit for time served in custody, notwithstanding the mandatory minimum sentence that the legislation imposes. The application for leave to appeal against conviction was originally pursued but was withdrawn before this court.

8 The court heard this matter on 16 April 2018 and on 19 April 2018 we indicated that the application for leave to appeal against conviction was refused and the appeal against sentence was dismissed. We indicated that the sentences would commence from 26 November 2015. We have put our reasons in writing as promised.

9 We felt that this matter highlighted a lacuna in the law that ought to be addressed. The application of credit for time served is now an established principle of Jamaican jurisprudence. Originally, this was something that was considered a factor to be taken into consideration by the sentencing judge. There was at that time no requirement that it should be anything more than a rough calculation or that the judge needed to do more than refer to this factor in his reasons for sentence.

10 Some common law jurisdictions enacted statutes that enforced that the actual amount of time spent on remand ought to be deducted from any sentence passed by the court at sentencing. At this time there is no such legislation in this jurisdiction.

11 However, the law has moved forward through judicial precedent. In Meisha Clement v R [2016] JMCA Crim 26, Morrison P in paragraph [34] encapsulated the progression of the law by stating:

“… However, in relation to time spent in custody before trial, we would add that it is now accepted that an offender should generally receive full credit, and not some lesser discretionary discount, for time spent in custody pending trial. …” (Emphasis applied)

Morrison P cited the cases of Callachand & Anor v The State [2008] UKPC 49, a decision of the Privy Council and Romeo DaCosta Hall v The Queen [2011] CCJ 6 (AJ), a decision of the Caribbean Court of Justice. Therefore, both of the final courts of appeal for this region are aligned on this point.

12 In fact, in Richard Brown v R [2016] JMCA Crim 29, a case remitted to this court by the Privy Council to establish how much credit, if any, was to be given for time spent in custody pending trial, F Williams JA helpfully summarised the progression of the law.

13 The position on credit for time served has germinated in the Sentencing Guidelines for Use By Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017, where it is expressed that:

“11. Time spent on remand

11.1 In sentencing an offender, full credit should generally be given for time spent by him or her in custody pending trial. This should as far as possible be done by way of an arithmetical deduction when assessing the length of the sentence that is to be served from the date of sentencing.

11.2 The sentencing judge should therefore ensure that accurate information relating to the time spent in custody is made available to the court.

11.3 In pronouncing sentence arrived at in this way, the sentencing judge should state clearly what he or she considers to be the appropriate sentence, taking into account the gravity of the offence and all mitigating and aggravating factors, before deducting the time spent on remand.

11.4 Despite the general rule, the sentencing judge retains a residual discretion to depart from it in exceptional cases, such as, for example:

• (i) where the offender has deliberately contrived to enlarge the amount of time spent on remand;

• (ii) where the offender is or was on remand for some other offence unconnected with the one for which he or she is being sentenced;

• (iii) where the offender was serving a sentence of imprisonment during the whole or part of the period spent on remand; and

• (iv) generally where the offender has been in custody...