Jessie Gayle v R
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 24 January 2018 |
| Neutral Citation | JM 2018 CA 54 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 90/2012 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA Crim 5
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
SUPREME COURT CRIMINAL APPEAL NO 90/2012
Ms Jacqueline Cummings for the applicant
Ms Maxine Jackson and Stephen Smith for the Crown
Messrs Jessie Gayle and Fabian Steele were both convicted on 22 June 2012 of the offences of illegal possession of firearm and shooting with intent. This was in the Western Regional Gun Court held in the parish of Saint James. They were each sentenced, on 30 July 2012, to 12 years imprisonment at hard labour for the count of illegal possession of firearm and to 18 years and 15 years imprisonment, respectively, on the count of shooting with intent. The sentences were ordered to run concurrently.
The evidence led by the prosecution at the trial was that, Messrs Gayle and Steele were the persons who shot at Constable Sasa-Marley Barrett and Special Constable Shawn McKenzie, while they were on duty, on 8 January 2010, at Harmony Town in the parish of Westmoreland. Mr Gayle was arrested on 20 January 2010 and Mr Steele on 20 April 2010.
Both men applied for leave to appeal against their respective convictions and sentences. Mr Steele's application has already been heard and dismissed. Mr Gayle's was deferred in order to have other counsel assigned to consider the application.
When Mr Gayle's application came on for hearing, Ms Cummings, who appeared on his behalf, candidly informed the court that she could find no basis to advance the application in respect of the convictions. We agree with her assessment. Mr Gayle's application for leave to appeal against the convictions should therefore be dismissed. Learned counsel did, however, advance Mr Gayle's application for leave to appeal against the sentence imposed on him for the offence of shooting with intent.
Mr Gayle's complaint is that there is an improper disparity between the sentence imposed on him, as opposed to that imposed on Mr Steele, for the offence of shooting with intent. Ms Cummings supported his stance. She submitted that the only difference between Mr Steele and Mr Gayle, for the purposes of that sentence, is that Mr Gayle had a previous conviction for unlawful wounding. Learned counsel argued that that difference would not warrant Mr Gayle receiving an increased sentence.
Ms Cummings made a further submission. She argued that the learned sentencing judge was wrong to have made negative comments, during sentencing, about Mr Gayle's refusal to accept the verdict. Learned counsel, very properly, argued that that is not a proper basis for increasing a sentence. She noted that there was no mention of that principle in the recently launched sentencing guidelines for the judiciary but that the principle was an established one.
As has become customary in recent times, the court sought assistance from the Crown in respect of sentence. Mr Smith, for the Crown, was also very helpful in this regard. Learned counsel argued that where there is a lack of remorse that may be considered an aggravating factor for the purposes of an appeal. Mr Smith submitted that sentences are not readily disturbed by this court and there needed to have been more in order to disturb the sentence imposed on Mr Gayle for the offence of shooting with intent.
As it relates to the disparity in sentence imposed on Mr Gayle and his co-offender (that is 18 years against 15 years), as complained of by Ms Cummings, guidance may be had from the cases of R v Kenneth John Ball (1951) 35 Cr App R 164 and R v Mary Richards (1955) 39 Cr App R 191. In R v Ball, the Court of Appeal of England stated that in deciding the appropriate sentence, the sentencing judge ought to have consideration, first and foremost, of the public interest and that “when two persons are convicted together of a crime…in which they have been acting in concert, it may be right, and very often is right, to discriminate between the two and to be lenient to the one and not to the other”, in the light of the “background, antecedents and character of the one and his whole bearing in Court” (page 166 of the report).
The court also rejected the argument that a severe sentence to one prisoner must be unjust because his co-accused, who was convicted of the same crime, received a lighter sentence or none at all. Hilbery J stated that the argument, “has neither validity nor force” (page 166), provided the differentiation in treatment is based on the differences in the characters and antecedents of the two convicted persons.
In R v Mary Richards, that court stated that the fact that a co-offender receives a shorter sentence is not a ground on which the court would ordinarily interfere. It considered a disparity between the sentences given to the appellant, Ms Richards, and her mother, with whom she had been jointly indicted. Ms Richards was sentenced to four years imprisonment, while her mother, although convicted for more offences than Ms Richards, received a sentence of only two years. The court noted that the...
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