Harvey v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Dukharan, J.A.
• Judgment Date: 15 May 2009
• Neutral Citation: JM 2009 CA 153
• Docket Number: Criminal Appeal No. 41 of 2005
• Date: 15 May 2009

Court of Appeal

before

Panton, P.;

Cooke, J.A.;

Dukharan, J.A.

Criminal Appeal No. 41 of 2005

Harvey

and

R

Appearances:

Mr. O'Neil Brown for the appellant.

Miss Kamar Henry for the Crown.

Criminal Law - Appeal against conviction and sentence — Three counts of simple larceny — 1 year imprisonment on each count — Whether there was any reason to disturb the findings of the Resident Magistrate — Whether the sentences were manifestly excessive.

Dukharan, J.A.

1 The appellant Kevin Harvey was tried and convicted on three counts of simple larceny on the 10th October 2005 in the Savanna-la-mar Resident Magistrate's Court. He was sentenced on the 3rd November 2005 to 1 year imprisonment on each count with sentences to run consecutively.

2 The trial commenced on the 12th April 2005 and spread over some 16 days ending on the 10th October 2005. The case against the appellant arose out of several incidents involving the theft of motor vehicles. Count 2 of the indictment charged the appellant and one Dwayne Singh with stealing a 1998 Toyota Surf on the 11th February 2003, the property of Sharmon Hinds. Count 3 on the indictment charged the appellant that he and Jerwayne Salmon on the 27th March 2003 stole a 2000 Mitsubishi Montero Sport, the property of Dr. Janine Dawkins and on count 5 that on the 14th April 2003, he and Jerwayne Salmon stole a 2003 Mitsubishi Montero Sport, the property of Anthony Allison.

With respect to count 2, Stephen Broughton testified that he is a mechanical engineer and he knows the owner of the said motor vehicle Miss Sharmon Hinds.

3 He said that on the 12th February 2003 he and Miss Hinds went to the Constant Spring Police Station where she gave a statement to the Police concerning her missing Toyota Surf. He said that on the 24th April 2003 he went along with Miss Hinds to the Frome Police Station in Westmoreland where she identified the said Toyota Surf. motor vehicle as hers in the presence of the appellant, who said “This is the vehicle what mi did have”. Mr. Broughton said he was familiar with the vehicle as he had driven it before and done mechanical repairs on it. He said the front was changed with a different crash bar on it. The chassis number was also changed and the seats were changed from velvet to leather. He identified other features of the vehicle such as the colour and the stereo system.

He said that the number on the chassis was different as the last three digits were not correct and the licence plate on it was 4730 BS. Miss Hinds never gave evidence as at that time she was away in the United States of America.

4 Detective Sergeant Asa Campbell testified that he went to the home of Dwayne Singh, the appellant's co-accused, where he saw the Toyota Surf motor vehicle. He said Mr. Singh gave him a key which he used to open the driver's door of the vehicle; that when he searched the vehicle he found documents relating to the vehicle in the glove compartment and these were exhibited as exhibit 9b and were in the name of the appellant. Mr. Singh said he got the vehicle from the appellant who swapped it with him for a Toyota Harrier.

Detective Inspector Leonard Parsons testified that he was a serial number, restoration expert. He examined several vehicles including the Toyota Surf in question. He said the engine and the chassis numbers were tampered with.

5 Miss Margaret Leslie, the Collector of Taxes from the St. Andrew Collectorate at Constant Spring testified that from her records, licence No. 4730 BS was issued to one Kevin and Christine Harrison for a 1990 Nissan and that exhibit 9, which was the registration certificate with the appellant's name on it, was fraudulent as it was not issued from that office.

6 In respect to count 3, Dr. Janine Dawkins testified that on the 27th March 2003 at about 7:00 p.m. she parked her Mitsubishi Montero Sport motor vehicle registered 2241 AS at a parking lot on Red Hills Road in St. Andrew where she attended a function. On her return the vehicle was missing. On the 16th April 2003 at about 6:45 p.m. she was in Negril, Westmoreland, when she observed her Montero Sport parked at a supermarket with a different licence plate numbered 5494 DN. She informed the police and later saw the vehicle at the Negril Police Station. She had the documents for the vehicle in her possession. She observed that the LA number on the licence disc was similar to the one on the copy of the registration certificate that she had with her. She said she identified the vehicle in the presence of the appellant who said “the lady say it is her vehicle, it is her vehicle”.

7 Colin Smith testified that sometime in February of 2003 he had a discussion with the appellant for the purchase of a Tundra pick up. They entered into negotiations and tie paid the appellant $400,000.00 as a deposit. There was a...