Gawayne Thomas v R
| Jurisdiction | Jamaica |
| Judge | Laing JA |
| Judgment Date | 18 February 2022 |
| Neutral Citation | JM 2022 CA 21 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2019CR00027 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 11
THE HON Mr Justice F Williams JA
THE HON Mr Justice Brown JA (AG)
THE HON Mr Justice Laing JA (AG)
SUPREME COURT CRIMINAL APPEAL NO COA2019CR00027
IN THE COURT OF APPEAL
Linton P Gordon and Obiko Gordon instructed by Frater, Ennis & Gordon Attorneys-at-Law for the appellant
Ms Kathy-Ann Pyke and Mrs Sarahope Cochrane-Spencer for the Crown
Laing JA (AG)
On 29 November 2017, Cleveland McDonald (‘the deceased’) was walking along the roadway in Wainstead District, Mocho in the parish of Clarendon when he passed the appellant and another person. The appellant indicated to a female witness that he intended to kill the deceased. On 30 November 2017, the decapitated body of the deceased was found outside his house.
The appellant gave a caution statement in which he indicated that he was contracted by a third party to kill the deceased. The sum of that contract was $250,000.00.
On 6 December 2018, the appellant appeared in the Circuit Court holden at May Pen in the parish of Clarendon and pleaded guilty, on the day of his arraignment, to an indictment charging him with a single count of murder. On 7 February 2019, he was sentenced to 35 years' imprisonment with the possibility of parole after serving 25 years.
The sentencing judge highlighted that the crime was gruesome because of the circumstances under which the body was found and the manner in which the murder was committed. She noted that the appellant and the deceased were blood relatives, which made the crime even more heinous. The remainder of the sentencing judge's brief comments are worth reproducing as follows:
“I note that there is no mental or physical illness and I note as well that the accused man, Mr. Gawayne Thomas, has a previous conviction for violence that he is currently serving a sentence for. The court looks at all these things. I looked at the Antecedent Report. I have looked at the Social Enquiry Report. I have taken into account the time spent in custody by Mr. Thomas, which is approximately one year and one month.
The maximum sentence for this type of offence is usually life imprisonment. I have taken into account the one mitigating feature that I was able to identify and that is that he pleaded guilty at the first possible opportunity.
The normal range or the normal starting point for sentencing here is 15 years to life, I have, however looked at the normal range, 15 to life range and looked at the type of offence. I have looked at the things that the law says that I am to look at, any aggravating/mitigating circumstances, previous convictions, the issue of the vulnerable victims, mitigation, the issue of whether or not there was a guilty plea and any level of premeditation that might have existed. All of these things are operating on my mind and I am going to be sentencing Mr. Gawayne Thomas, in the circumstances, to 35 years imprisonment with the possibility of parole after 25 years. That is the sentence of the court.”
The appellant applied for leave to appeal his sentence. His application was considered and granted by a single judge of this court.
On 30 November 2021, the appellant filed the following grounds of appeal:
“a. The learned Presiding Judge failed to adequately demonstrate how she arrived at the sentence of 35 years imprisonment with the possibility of parole after 25 years, thereby rendering the sentencing exercise as one lacking in transparency and precision.
b. The Learned Presiding Judge failed to adequately demonstrate what deductions of sentence if any was being applied to the Appellant in light of the fact that he had entered a plea of guilty at the first relevant opportunity.
c. The Learned Presiding Judge failed to demonstrate how, if any at all, she applied section 42F of the Criminal Justice (Administration) (Amendment) Act 2015 in arriving at a sentence.”
It was submitted by Mr Gordon, on behalf of the appellant, that had the sentencing judge correctly applied section 42F of the Criminal Justice (Administration) (Amendment) Act (‘CJAA’), this would not have resulted in a term of imprisonment that is greater than 30 years and, as such, the learned judge erred in sentencing the appellant to a term of 35 years. It was further submitted that an appropriate period would have been 30 years. Section 42F of the CJAA provides as follows:
“42.F Where the offence to which a defendant pleads guilty is one for which the Court may impose a sentence of life imprisonment, and the Court would have imposed that sentence had the defendant been tried and convicted for the offence, then, for the purpose of calculating a reduction of sentence in accordance with the provisions of this Part, a term of life imprisonment shall be deemed to be a term of 30 years.”
As it relates to the pre-parole period of 25 years which has been fixed by the sentencing judge, Mr Gordon has accepted the Crown's approach and the appropriate sentence as submitted (to which reference is made in the following paragraphs), subject to the time spent in incarceration prior to this sentence, which was submitted to be six months and three weeks.
The Crown has conceded that the approach of the learned sentencing judge was flawed and that she erred in her sentencing of the appellant.
The Crown has submitted that, “having regard to all the circumstances”, an appropriate starting point would be in the region of 29 years. To this would be applied a reduction of 30% having regard to the appellant's age and his plea of guilty but balanced against the gruesome nature of the killing “and other things”. This would result in a sentence of 20 years' imprisonment and three months. This would be further reduced by the period the appellant spent on remand, which was not as a result of him serving his sentence for unlawful wounding.
We have considered whether the sentence passed by the sentencing judge warrants the intervention of the court, pursuant to section 14(3) of the Judicature (Appellate) Jurisdiction Act which provides that:
“On an appeal against sentence the Court shall, if they think that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.”
In analysing this issue, due consideration was given to the authority of R v Ball (1951) 35 Cr App R 164, at page 165 and the principles espoused therein, which have been repeatedly referred to by this court, that:
“In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial Judge has seen the prisoner and heard his history and any witnesses to character he may have chosen to call. It is only when a sentence appears to err in principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene.”
In Meisha Clement v R [2016] JMCA Crim 26, at paragraph [43], Morrison P, in delivering the judgment of the court, detailed the task to be undertaken by the court in imposing a sentence:
“[43] On an appeal against sentence, therefore, this court's concern is to determine whether the sentence imposed by the judge (i) was arrived at by applying the usual, known and accepted principles of sentencing; and (ii) falls within the range of sentences which (a) the court is empowered to give for the particular offence, and (b) is usually given for like offences in like circumstances. Once this court determines that the sentence satisfies these criteria, it will be loath to interfere with the sentencing judge's exercise of his or her discretion.”
These principles have been affirmed and adopted in a number of cases by this court. Subsequent to the judgment of Meisha Clement v R, the Sentencing Guidelines for use of Judges of the Supreme Court of Jamaica and the Parish Court were established in 2017.
In Daniel Roulston v R [2018] JMCA Crim 20, McDonald-Bishop JA, at paragraph [17], indicated that the following approach and methodology is to be employed:
“a. identify the sentence range;
b. identify the appropriate starting point within the range;
c. consider any relevant aggravating factors;
d. consider any relevant mitigating features (including personal mitigation);
e. consider, where appropriate, any reduction for a guilty plea;
f. decide on the appropriate sentence (giving reasons); and
g. give credit for time spent in custody, awaiting trial for the offence (where applicable).”
The sentencing judge, in this case, identified the sentencing range for the murder as being 15 years' imprisonment to life imprisonment pursuant to section 3(1)(b) of the Offences Against the Person Act. She also noted that “[t]he maximum sentence for this type of murder is usually life imprisonment”. She did not determine an appropriate starting point, but explicitly indicated that she considered as the one “mitigating feature”, the plea of guilty, along with “aggravating/mitigating circumstances”, and saw it prudent to impose a sentence of 35 years' imprisonment with the possibility of parole after 25 years. Although she had stated that she considered that there was a guilty plea, she did not show what deductions she made in respect of it. In the case of Lincoln McKoy v R [2019] JMCA Crim 35, the learned trial judge did not employ the sentencing methodology...
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