Fisher (Roderick) v R

• Jurisdiction: Jamaica
• Judge: G. SMITH, J.A. (Ag.):
• Judgment Date: 21 November 2008
• Neutral Citation: JM 2008 CA 93
• Judgment citation (vLex): [2008] 11 JJC 2103
• Court: Court of Appeal (Jamaica)
• Date: 21 November 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE MORRISON, JA THE HON. MISS G. JUSTICE SMITH, J.A. (Ag.)

RODERICK FISHER

V.

R.

Mr. Jack Hines for the Appellant

Mr. John Tyme for the Crown

MURDER - Death sentence - Leave to appeal - Re-sentencing - Factors to be considered in determining sentencing

G. SMITH, J.A. (Ag.)

1 The appellant Roderick Fisher was convicted of three counts of murder and sentenced to death on the 6 ^th June 2000. He was re-sentenced on 26 ^th August 2006 to life imprisonment without the possibility of parole before forty years. He has now appealed against this sentence.

2 In dealing with this appeal, it is necessary to set out what can be regarded as a brief chronology of legal developments that are germane to a consideration of a sentencing matter of this nature:

• (i) 1992- The Offences Against the Person Act amended to provide for degrees of murder. Section 3(1A) provided that a person guilty of multiple murders should be sentenced to death.

• (ii) 1993- Pratt and Morgan v. R. (1993) 43 WIR 340, decided that if in any capital case execution is to take place more than five years after sentence, there will be strong grounds for believing that the delay is such as to constitute "inhuman or degrading punishment or other treatment" within the meaning of section 17(1) of the Constitution.

• (iii) 2005- Offences Against the Person (Amendment) Act 2005 was passed (as a consequence of the decision in Lambert Watson v. R. [2005] A.C. 472 ), repealing the mandatory death sentence in cases previously classified as capital murder and providing instead for the trial judge to have the discretion to impose sentence of death or imprisonment for life with restrictions on the eligibility for parole. Transitional provisions in section 8 of this Act to provide that death sentences passed before the commencement of the Act, but not carried out, are to be quashed and substituted by sentence passed in accordance with the provisions of this Act.

3 It is obvious from the above chronology that the appellant was sentenced to death pursuant to the 1992 amendments to the Offences against the Person Act and was re-sentenced as a result of the decision in Lambert Watson (supra) and the consequential 2005 amendments in the Offences Against the Person Act. Likewise, it is equally clear that at the time of the re-sentencing, five years had passed since the sentence of death had been imposed with the result that the ruling in Pratt and Morgan (Supra) would have been applicable.

4 The sole ground of appeal filed on the appellant's behalf was as follows:

"The learned trial judge erred in imposing a period of forty years imprisonment before the applicant is eligible to apply for parole, which period is excessive in the circumstances."

5 In support of this ground, Mr. Hines for the appellant submitted that:

A consideration of these factors which relate to parole would ensure that the judge did not render the appellant's opportunity to obtain parole impossible by allowing the appellant the opportunity to apply for parole at an age where it is highly unlikely that the appellant will satisfy the above conditions.

• (i) The learned trial judge should be mindful that the law that gives him the power to impose the period before being eligible for parole is the same law that provides the mechanism of parole.

• (ii) Every convicted murderer is entitled to avail himself of the reformative and rehabilitative benefit of parole because the law that provides for parole does not discriminate between those who commit heinous crimes and those who do not.

• (iii) As a result of (ii) above, the judge should temper or balance the reality or inclination and or need to imprison those who commit heinous murders for a long time with the need not to destroy all possibilities that the individual can get parole.

• (iv) In light of the above, it was necessary for the learned trial judge in determining the period before parole to be mindful that there are criteria and conditions which have to be fulfilled before parole can be granted. These criteria to be satisfied by the appellant included providing the following information:

  • (a) Where and with whom he will live.

  • (b) How he will take care of himself and his dependents.

  • (c) The name and address of anyone willing and able to employ him.

6 Mr. Hines referred to The Parole Act, The Parole Rules and The Offences Against the Person Act in support of his submissions. s6(4) of The Parole Act states:

"Subject to subsection (5), an inmate -

• (a) who has been sentenced to imprisonment for life; or

• (b) in respect of whom-

  • (i) a sentence of death has been commuted to life imprisonment; and

  • (ii) no period has been specified pursuant to s5A -

Indeed, Mr. Hines is right in his contention that every murderer sentenced to life has the right to apply for parole regardless of the heinous nature of the crime as is evident from the use of the word "shall". However, this general rule is subject to the following qualification introduced in 2005 by s3(lC) of The Offences Against the Person Act:

7 The Act stipulates:

"In the case of a person convicted of murder, the following provisions shall have effect with regard to the person's eligibility for parole, as if those provisions had been substituted for section 6(1) to (4) of the Parole Act-

• (a) where a court imposes a sentence of imprisonment for life pursuant to subsection (1) (a), the court shall specify a period, being not less than twenty years, which that person should serve before becoming eligible for parole;"

Persons who would be sentenced to life imprisonment pursuant to...