Javone Leslie v R

• Jurisdiction: Jamaica
• Judge: Foster-Pusey JA
• Judgment Date: 15 December 2023
• Neutral Citation: JM 2023 CA 157
• Court: Court of Appeal (Jamaica)
• Year: 2023
• Docket Number: SUPREME COURT CRIMINAL APPEAL NOS 52 & 55/2019

Javone Leslie

Jamelia Leslie

and

R

[2023] JMCA Crim 60

BEFORE:

THE HON MR Justice F Williams JA

THE HON Mrs Justice Foster-Pusey JA

THE HON Mrs Justice Dunbar Green JA

SUPREME COURT CRIMINAL APPEAL NOS 52 & 55/2019

IN THE COURT OF APPEAL

Criminal Law — Sentencing — Three counts of murder — One count of arson- Guilty plea discounts — Clarification of sentences — Sentences of life imprisonment — Consideration of the stipulation of pre-parole periods — The Offences Against the Person Act, sections 2(1)(a), 2(2), 3(1), 3(1A) and 3(1C) — The Criminal Justice (Administration) Act, sections 42C and 42F

Sanjay Smith for Javone Leslie

Mrs Andria Whyte-Walters for Jamelia Leslie

Jeremy Taylor KC and Ms Kathrina Watson for the Crown

Foster-Pusey JA

1 Mr Javone Leslie and Miss Jamelia Leslie were charged on an indictment containing three counts for the murder of 29-year-old Kashief Jackson, her 23-month old son Aviere Williams, and her seven-day old daughter, Aranza Williams. The indictment also included one count of arson as the applicants had set fire to a dwelling house with Ms Jackson and her two children inside. On 21 March 2019, in the Home Circuit Court, both applicants pleaded guilty to all four counts on the indictment.

2 On 31 May and 7 June 2019, the sentencing judge imposed the following sentences on both applicants: count one - the murder of Kashief Jackson- life imprisonment with the stipulation that they each serve 36 years' imprisonment before they are eligible for parole, count two - the murder of Aviere Williams - life imprisonment with the stipulation that they each serve 21 years' imprisonment before they are eligible for parole, count three - the murder of Aranza Williams - life imprisonment with the stipulation that they each serve 21 years' imprisonment before they are eligible for parole, and count four - arson - 10 years' imprisonment. All the sentences were to run concurrently.

The grounds of appeal

3 Mr Leslie and Miss Leslie applied for leave to appeal their sentences on various grounds. For Mr Leslie's part, the original grounds were:

“ Unfair Trial: That the court did not temper justice with mercy as the sentences are harsh and excessive and cannot be justified in law.

Unfair Trial: That the learned trial judge did not temper justice with mercy as my guilty plead [sic] was not taken into consideration.

Unfair Trial: That based on the facts as presented the sentence [sic] are harsh and excessive and cannot be justified when taken into consideration.”

4 Miss Leslie, on the other hand, outlined as her grounds of appeal:

• “a) The judge did not take into consideration my side of the argument, as in my opinion the sentence is excessive.

• b) The judge should take the SER into account when handing down the sentence.

• c) The judge should take the emotional trauma I suffered into consideration.”

5 A single judge of appeal refused the applicants' applications on the basis that the overall sentences did not appear to be manifestly excessive for a triple murder and for the offence of arson.

6 The applicants renewed their applications for leave to appeal before this court. Their counsel did not seek leave to amend the grounds of appeal that were originally filed but focussed their submissions on the question as to whether the sentences imposed were manifestly excessive.

The facts outlined by the prosecution

7 It is difficult to find adequate words to describe the events of 18 July 2018. This was a horrifying incident that ended with three lives lost in what must have been terrifying circumstances for the now deceased. The applicants are brother and sister. Miss Leslie had a child for and a relationship with a man who will be referred to as “AW”. The deceased Ms Jackson bore two children, Aviere and Aranza, for AW.

8 Miss Leslie received information that AW was having an affair with Ms Jackson, who moved into AW's home along with the two children after giving birth to Aranza. On 18 July 2018, the applicants left their homes and went to AW's home for which Miss Leslie had a key. Miss Leslie and her brother entered the house and attacked Ms Jackson, stabbing her with a knife several times. They then set ablaze a bed in the house, left the two children in the house and returned to their home. Ms Jackson and the two children died. The postmortem reports reflected how their deaths came about.

The postmortem reports from Dr Althea Neblett

9 Ms Jackson's body was found on the floor at the entrance of the bedroom. There was a partially burnt mattress in the room. There was “a cluster of haemorrhagic stab and incised wounds (18 wounds) on the neck”, as well as numerous others on her cheek, in her chest wall and abdominal walls, on her left arm, left hand and palm. The summary of opinion as to the cause of death read as follows:

“Postmortem examination of the body revealed an adult woman who was covered lightly with soot. She had multiple sharp force injuries to the neck with injury to the trachea. She also had multiple, non-fatal, sharp force injuries of the face, torso and the upper limbs. There was soot in the mouth and soot, admixed with blood in the larger and smaller airways.

Postmortem toxicology revealed non-fatal concentration of carbon monoxide. The presence of soot in the airway, along with carbon monoxide in the blood, infer that she was alive at the start of the fire. Death is due to sharp force injuries of the neck and smoke inhalation.”

10 Aviere was found on the floor of the bedroom and then taken outside to the veranda, while Aranza was found in a bath pan on top of clothing in the bedroom. There was no obvious external trauma to either Aviere's or Aranza's bodies, however, they were covered with soot and had soot in their mouths, stomachs and airways. The postmortem toxicology revealed fatal concentration of carbon monoxide. Death for both children was due to “smoke inhalation and carbon monoxide toxicity”.

The submissions

The initial submissions for the applicants

11 Mr Smith and Mrs Whyte Walters filed joint submissions, however, Mr Smith summarized them orally. The applicants' attorneys submitted that the sentences could not be seen as manifestly excessive having regard to “the gruesome nature of the crime”. Counsel referred to Jowayne Alexander v R [2022] JMCA Crim 64 in which it was indicated that a person convicted of another murder committed on the same occasion could be sentenced to death or imprisonment for life. Counsel submitted that it was appropriate for the pre-parole period determined in the case at bar to be higher than that imposed in that case. Counsel also referred to Tyrone Gillard v R [2019] JMCA Crim 42 in which this court allowed the appeal on a sentence for murder and imposed a pre-parole period of 20 years' imprisonment for a single count of murder on a guilty plea. Counsel noted, however, that the usual practice was to impose a higher sentence on the subsequent counts instead of the highest sentence on the first count of murder. No issue was taken with the sentence handed down for arson.

12 Noting that the learned judge sentenced the applicants on 31 May 2019 and recalled them for clarification on 7 June 2019, counsel submitted that, on 7 June 2019, the sentencing judge was merely clarifying the sentences that she had handed down and was not varying them. As a consequence, no issue arose as to whether she was functus officio on 7 June 2019. Reference was made to Beswick v R (1987) 36 WIR 318 and again to Tyrone Gillard v R.

The initial submissions made by the Crown

13 The Crown, in its written submissions, highlighted that, notwithstanding the enormity of the crime perpetrated by the applicants, the Crown did not seek the imposition of the death penalty and the applicants were indicted on a ‘non capital’ indictment, the governing provisions being section 2(2) of the Offences Against the Person Act (‘OAPA’). Counsel for the Crown emphasized that the Crown could have indicted the applicants for murder committed in the course or furtherance of arson contrary to section 2(1)(a) of the OAPA.

14 Mr Taylor KC submitted that offences falling under section 2(2) of the OAPA were dealt with under section 42E of the Criminal Justice Administration Act (‘CJAA’) and that section 42F of the CJAA mandated a statutory fiction that for the purposes of the legislation life imprisonment is deemed to be a term of 30 years.

15 Referring to Meisha Clement v R [2016] JMCA Crim 26 and Daniel Roulston v R [2018] JMCA Crim 20 King's Counsel highlighted the principles guiding judges as they impose sentences. King's Counsel also submitted that the objectives of sentencing are retribution, deterrence, prosecution, and rehabilitation, however, the appropriate overriding principles to be applied in the case at bar ought to be retribution, denunciation and deterrence. He relied on R v Sydney Beckford and David Lewis (1980) 17 JLR 202 in which this court endorsed the principles laid down in James Sargeant v R (1974) 60 Cr App R 74 and commended Her Majesty the Queen v M (CA) [1996] 1 SCR 500 and Furman v Georgia 408 US 238 (1971) as justifying retribution as a sentencing principle of our law.

16 King's Counsel referred to a number of cases in which sentences were imposed for the offence of arson: R v Errol Hylton (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 40/1991, judgment delivered 11 November 1991- a 10-year sentence was affirmed on appeal; Anthony Atkinson and Paulston Mairs v R [2016] JMCA Crim 4, two counts of arson, four-year and five-year sentences were imposed and affirmed on appeal; and Lindell Howell v R [2017] JMCA Crim 9, where a sentence of 18 years was imposed but was reduced to 10 years on appeal. After reviewing the sentencing judge's approach, King's Counsel submitted that the sentence for arson was within the prescribed range although, given the...