Jermaine Channer v R
| Jurisdiction | Jamaica |
| Judge | G Fraser JA |
| Judgment Date | 11 March 2022 |
| Neutral Citation | JM 2022 CA 051 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2019CR00065 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 14
THE HON Mr Justice F Williams JA
THE HON Mrs Justice Dunbar-Green JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CRIMINAL APPEAL NO COA2019CR00065
IN THE COURT OF APPEAL
Mrs Delpharine Golding Jenkins for the appellant
Miss Donnette Henriques for the Crown
G Fraser JA (AG)
This is an appeal by Mr Jermaine Channer (‘the appellant’) against sentences imposed on him by Wiltshire J (‘the learned sentencing judge’) on 12 July 2019, in the High Court Division of the Gun Court, holden at Mandeville in the parish of Manchester. He was convicted for the offences of illegal possession of firearm contrary to section 20(1)(b) of the Firearms Act (count 1), illegal possession of ammunition contrary to section 20(1)(b) of the Firearms Act (count 2) and shop breaking and larceny contrary to section 40 of the Larceny Act (counts 3 and 4). The appellant was subsequently sentenced to 13 years’ imprisonment at hard labour each, with respect to counts 1 and 2 and eight years’ imprisonment at hard labour on counts 3 and 4. The sentences were ordered to run concurrently.
When the appellant was arraigned, on 30 May 2019, the indictment had initially contained six counts. He pleaded guilty to four of those counts. He pleaded not guilty in relation to counts 5 and 6, which averred the offence of shooting with intent contrary to section 20(1) of the Offences Against the Person Act. The prosecution accepted the guilty pleas on counts 1 to 4 and elected not to further pursue the shooting with intent charges (counts 5 and 6).
The particulars of the offences elicited by the prosecution are that on 16 May 2018, at about 2:20 am, police officers received intelligence regarding a shop breaking and proceeded to Sunny Lodge Hardware Farm and Variety Store situated at Walderston in the parish of Manchester. Upon their arrival, the policemen were greeted by gunfire and they reciprocated. The police observed two men fleeing from a Honda Civic motor car which was parked in close proximity to the hardware store. The men fled leaving the car behind. In the aftermath of the shooting, the police further observed that padlocks had been pried from the front metal door of the hardware and the entire building was ransacked. The car was searched by the police, who noted that it contained items pilfered from the hardware store and also items from a neighbouring building, which was also broken into.
On searching the surrounding locale, the police found a Browning 9MM pistol, containing a magazine with four rounds of ammunition and further recovered 21 spent casings, two warheads and five bullet fragments. The Honda Civic motor car abandoned at the scene was registered to the appellant's cousin, but the vehicle was owned and used on a daily basis by the appellant. The appellant was subsequently arrested at his home and charged for the aforementioned offences.
The appellant gave a written statement under caution. He confessed that he had met with two men, Jay and Shark and had discussions with them about robbing the hardware store. Shark had insider information about the operations of the hardware store and where the money was kept. According to the appellant, he left the discussion to attend to some domestic affair. On the morning of the offence, he received a phone call from Jay, at about 3:30 am, asking him to pick him up. The appellant drove to the hardware store and saw both Jay and Shark present there. He parked the vehicle, opened the trunk and proceeded to assist Shark in loading items into it. He confirmed that on the arrival of the police, Jay fired shots at them, whereupon he fled from the scene and went home.
On being charged with the several offences and after he was cautioned, the appellant made the following utterance, “I was there helping to put the things in the car, Jay fired the shots after the police”.
The appellant's initial grounds of appeal, filed on 23 June 2019, cited some six grounds. A single judge of this court considered and granted his application for leave to appeal his sentences. On 25 November 2021, at the hearing of the appeal before us, Mrs Golding Jenkins, counsel for the appellant, indicated, quite candidly, that after careful consideration of the matter, she was unable to advance those grounds. With the permission of the court, counsel abandoned the original grounds and advanced instead the following five supplemental grounds:
“1. In considering the sentence to be imposed, the learned Trial judge erred by failing to adopt the recommended approach to be used in arriving at a starting point. This failure denied the appellant a reasonable starting point and further led to a double up.
2. The trial judge erred by failing to give reasonable consideration and credit for all the facts forming the basis of the appellant's guilty plea. As a result part of the appellant's case was not considered by the trial judge.
3. The learned trial judge failed to grant the appropriate discount for an early guilty plea. Consequently, this amounted to the appellant receiving a sentence that is manifestly excessive, thereby resulting in a miscarriage of justice considering the circumstances of the case.
4. The learned trial judge failed to give valuable consideration to a number of mitigating factors. Consequently very essential consideration in the purpose of the appellant's punishment was ignored.
5. The sentencing judge was silent on very critical matters considered in the sentencing process, and had failed to demonstrate a clear balancing of these considerations and the weight attached to them.”
Counsel for the appellant strenuously argued that the learned sentencing judge failed to adopt the recommended approach for sentencing according to the Sentencing Guidelines for Use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017 (‘the Sentencing Guidelines’). She submitted that the appellant's previous similar offences were used as an aggravating feature in determining the starting point and again in determining the sentence, hence the addition of three years to the starting point of 15 years. Counsel submitted that this resulted in a double count. Counsel advanced that:
“[t]he recommended approach that should have been adopted is that a clear starting point should have been identified, independent of any aggravating or mitigating factor, then after identifying the starting point, it is only then that the aggravating and mitigating factors should have been applied.”
In seeking to buttress her argument, counsel relied on several authorities, including Regina v Everald Dunkley (unreported), Court of Appeal, Jamaica, Parish Court Criminal Appeal No 55/2001, judgment delivered 5 July 2002 and Denver Bernard v R [2019] JMCA Crim 13. Counsel also contended that the seminal case of Meisha Clement v R [2016] JMCA Crim 26, provided useful guidance for sentencing judges.
Based on the foregoing, counsel contended that the appellant was deprived of a fair sentence.
Counsel for the Crown, Ms Henriques, in response, argued that the learned sentencing judge in identifying a starting point had a full appreciation of the relevant issues. She referred to Meisha Clement v R. In particular, counsel highlighted that this court, at paragraph [29], had enunciated that a sentencing judge in arriving at an appropriate starting point should take into account the seriousness of the offence, the offender's culpability in committing the offence and any harm which the offence has caused, was intended to cause, or might foreseeably have caused.
Counsel continued that, in determining the seriousness of an offence, a 360-degree examination of the circumstances which include the offence and the offender had to be contemplated. As such, in considering the appellant's culpability as a part of the assessment of issues relevant to the starting point, the court was correct in not taking a one-dimensional view by only focusing on the appellant's level of participation, but also the character of the appellant as a participant which helped to inform his level of blameworthiness.
Counsel submitted that the learned sentencing judge's reference to the appellant's previous record and community report went to his bad character. His previous offences spoke to his degree of culpability. The learned sentencing judge at that point did not treat the appellant's antecedent as an aggravating factor. According to counsel, all that she said, before identifying a starting point, was pertinent to her fixing the starting point.
Counsel posited that the starting point utilized by the learned sentencing judge was entirely reasonable and that she “referenced the Sentencing Guidelines … when she identified the usual starting point as 10 years imprisonment”. Counsel relied on a decision of this court, Paul Lamoye v R [2017] JMCA Crim 41, a case which involved more than “possession of a firearm simpliciter” where the court had enunciated that, “a starting point, anywhere between 12 to 15 years would be appropriate”. Counsel pointed out that the offences to which the appellant pleaded guilty included shop breaking and larceny. Further, the appellant had not disputed that the firearm in question had been fired at the police officers while they were attempting to foil the criminal activities of the appellant and his cronies. These, therefore, are aggravating factors relevant to the offence.
According to counsel, aspects that relate to the...
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