Glenroy Mitchell v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 22 July 2016 |
| Neutral Citation | JM 2016 CA 80 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 3/2011 |
| Court | Court of Appeal (Jamaica) |
| Date | 22 July 2016 |
[2016] JMSA Crim 27
JAMAICA
IN THE COURT OF APPEAL
SITTING IN LUCEA IN THE PARISH OF HANOVER
The Hon Mr Justice Morrison P (AG)
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Mcdonald-Bishop JA
SUPREME COURT CRIMINAL APPEAL NO 3/2011
Ronald Paris for the Applicant
Miss Paula Llewellyn QC , Director of Public Prosecutions for the Crown
On 18 November 2010, the applicant pleaded guilty in the Circuit Court for the parish of Clarendon before Pusey J, on an indictment containing one count of murder, the particulars of which were that on 27 March 2008 he had murdered Indira Coleman in that parish. He was 25 years of age (at the time of sentencing) and was represented by counsel, Mr George Clue. In answer to a query from the court, the applicant stated that he was taking responsibility for ‘wrongly killing’ Miss Coleman. The matter was adjourned to 3 December 2010, for the production of the Social Enquiry Report (SER), the antecedent report and for sentencing.
On 15 December 2010, the applicant was present with his counsel, Mr Clue in court. The transcript of the proceedings in respect of that day's hearing disclosed that the above reports had been submitted to the court, and the learned judge had also in the interim, been provided with two reports from consultant psychiatrists relating to the applicant. One of the reports dated, 25 October 2010, had indicated that the applicant was not fit to plead, and the judge stated that as a result the plea of guilt had been withdrawn. However, the later report dated 15 November 2010, stated that the applicant was fit to plead and consequently the plea had been accepted.
At the hearing Crown Counsel presented the facts on behalf of the prosecution. The antecedent report was tendered through the evidence of Dale Julius, Detective Corporal of Police, stationed at the May Pen Police Station in the parish of Clarendon. The SER was taken as being part of the record. Counsel for the applicant made a plea in mitigation on his behalf, and the learned judge at the conclusion of the hearing sentenced the applicant to 25 years imprisonment at hard labour. In his application for leave to appeal dated 30 December 2010 (Criminal Form B1), the applicant gave notice of his desire to appeal against both his conviction and sentence on the following grounds:
‘1. Unfair Trial:- That although the facts were presented to the Learned Trial judge about me been [sic] forced to plea Guilty to the Murder, the Judge did not tamper [sic] justice with mercy as reflected by the excessive nature of the sentence.
B. That the Sentence is harsh and excessice [sic] and cannot be justified when all the circumstances are taken into consideration.
C. Miscarriage of Justice:- That I was wrongly convicted for a crime I did not commit, but was force [sic] by an Area Leader to own such act.’
On 31 May 2015, a single judge of this court refused leave to appeal conviction and sentence.
On 9 and 10 December 2015, this matter was heard in the Court of Appeal on circuit, in Lucea, in the parish of Hanover. The court made the following order:
‘Application to appeal against conviction and sentence refused. The sentence is to be reckoned as having commenced on 15 December 2010.’
We promised then to put our reasons in writing in due course. These are the promised reasons and we apologise for the delay in providing the same.
Based on the manner in which this matter unfolded, it may be useful to set out the details of what transpired when the matter came before the court on 18 November 2010, before Pusey J. Crown Counsel stated the allegations as follows:
‘… on Thursday, the 27th day of March, 2008, at about 2:30 in the morning, the police received information that gunshots were being fired in the Savannah Cross District, in Clarendon. Constable Dave Lindsay went to the scene, where he discovered the body of a man lying in the yard with blood all over his body, with gunshot wound to his head. The body appeared to be that of a dead man.
He entered the dwelling house—- the same officer— m “Lord, which he noticed was ransacked. He noticed another body, that of a female, slumped over a bed. She was moving slightly. The officer then saw a little boy, about eight or nine years old, who told him that they had killed his mother and stepfather. Constable Lindsay rolled over the female and found a two year-old girl under the female's body. She, too, was covered in blood. The officer took both children to the service vehicle parked outside and the boy told him that, “A four boy do it and me know the four of them. One name Flicker, one name Kid, one name King and the other name Ricky.”…“The whole a dem and me mother used to be friends. Me all know weh dem live down a Hunts Bay and New Bowens.’”
Crown Counsel also informed the court that the scene had been later processed by the Scenes of Crime Unit and on 2 April 2008, at the post mortem examination the body of the female taken from the scene, Ms Indira Coleman (otherwise called Serena), had been identified by her sister Suzette Blair. The cause of death was stated to be laceration to the brain due to gunshot wounds. On 30 March 2008, gun samples had been collected and handed over to the police.
Crown Counsel informed the court that the applicant had given a cautioned statement in which it was stated that:
‘…he was approached by Kid and Flicker to go and collect money in Savannah. Kid told another man that they were going to rob somewhere. They went to the house of the deceased, kicked off the door and he, Mr. Mitchell, asked Coleman, the deceased, for money and she told him she had none. He was ordered by Kid to kill her and he went and shot her in her head. It was when he was leaving the scene, m'Lord, that he saw the body of the other deceased mentioned earlier. He was arrested and charged for the offence of murder. There is no indication, m'Lord, that he made any further statement when he was cautioned.’
The transcript revealed that after the statement of facts for the prosecution had been read out by Crown Counsel, the following exchange took place between the learned judge and counsel for the applicant:
‘HIS LORDSHIP: You are satisfied with that Mr. Clue, there is nothing else to add?
MR CLUE: I want her to add that there was a Question and Answer in which a number of questions were posed to him and he gave certain responses, M'Lord, in relation to Question 42.
HIS LORDSHIP: Maybe you can deal with them in the Plea in Mitigation
HIS LORDSHIP: Very well. Go ahead. Go ahead and swear.’
The antecedent report was tendered as indicated previously through Detective Corporal Julius. In summary, he stated that the applicant was born in the Leicesterfield District in the parish of Clarendon on 28 November 1985. He grew up with his parents in John's Hall District in Clarendon and had attended John's Hall Basic and All-Age Schools. However, due to financial difficulties, he had dropped out of school at 16 years of age. He was illiterate. After leaving school, he commenced farming, earning $3,000.00 and $7,000.00 weekly, while simultaneously learning the mason trade with one Mr Frank on construction sites where he earned $5,000.00 per fortnight. He was thus engaged at the time of his arrest. The applicant was single, had no dependents, and there were no previous convictions recorded against him.
In the SER dated 29 November 2010, details of the applicant's siblings were stated. His educational and work background were also set out. The report revealed that he had resided in an unfinished three bedroom concrete structure with detached sanitary and kitchen facilities. Additionally, he had developed a mental condition since being incarcerated, but there was no mental health history in his family ancestry. He appeared to have a cordial relationship with his siblings and family members generally. Unfortunately, his mother died in 2000 due to asthma, and his father was reportedly in prison.
In the applicant's community, several members spoke well of him and stated that he was a hardworking individual who tried to do various jobs occasionally, such as gardening and helping persons to ‘cut their yards and any other odd jobs’. However, he was described as an ardent ganja smoker which made some persons question his mental capacity, as he had been seen talking and laughing to himself, and even lying along the roadside. He was not seen as a troublemaker, although his behavioural patterns had seemed to change as he grew older, developing certain anti-social tendencies, and he had begun to associate with persons who had a negative influence on him.
In making their assessment and recommendation, the probation officers were concerned about the premature end to his educational pursuits leaving him illiterate; the impact of the death of his mother and his father's incarceration on him; and the negative influences in his life. They concluded, having examined all of the foregoing, as follows:
‘…[the applicant] is the product of an environment characterised by financial hardship which has seemingly caused instability in the different aspects of his life. Furthermore, it appears that his childhood was aborted due to those different obstacles and now as an adult he still struggles and the presence of negative influences further compounds his current situation.’
Of greater significance to the application before the court, was the further ‘partial’ SER, of the same date, which recounted the interview with the applicant at the Horizon Adult Remand and Correctional Centre. He was described as being polite, respectful and timid in his behaviour. His answers to questions posed to him produced the following account of the incident which had taken place on 27 March 2008, and in...
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