Joel Deer v R

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 18 July 2014
• Neutral Citation: JM 2014 CA 73
• Docket Number: CRIMINAL APPEAL NO 114/2012
• Court: Court of Appeal (Jamaica)
• Date: 18 July 2014

Joel Deer

and

R

[2014] JMCA Crim 33

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

The Hon Miss Justice Mangatal JA (Ag)

CRIMINAL APPEAL NO 114/2012

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

CRIMINAL LAW - Illegal possession of firearm - Robbery with aggravation - Leave to appeal - Excessive sentence

Ms Althea McBean for the appellant

Orett Brown for the Crown

Phillips JA

1 The appellant, Joel Deer, was charged on an indictment containing one count of illegal possession of firearm and one count of robbery with aggravation. On 28 August 2012, he pleaded guilty to both counts, and on 2 November 2012, Fraser J sentenced him to 10 years and 16 years imprisonment at hard labour respectively, to run concurrently. The single judge who reviewed his application for leave to appeal against sentence granted the application on the ground that, although the trial judge referred to a discount for the guilty plea, the sentences imposed did not appear to reflect the discount.

2 The allegations as outlined by the prosecution were that on 2 July 2009 at around 1:30 pm, the appellant, armed with a firearm and in the company of another man, who also had a firearm, robbed Mr Linton Green of a wrist watch, a gold chain, $70,000.00 and two cellular phones, as he sat in his parked car at the corner of Marcus Garvey Drive and East Avenue in Kingston. On 8 October 2009, the appellant was pointed out by Mr Green at an identification parade.

3 The learned trial judge in handing down sentence stated:

‘Because you have pleaded guilty, you are entitled to the benefit of that in reducing your sentence because as your counsel has advanced, it is a display of remorse and it has saved the Court's time. I, however, also have to bear in mind, in addition to the guilty plea, that he has done three years after you have made help [sic], it has come after a previous conviction and other offences and so it cannot properly be said to be a guilty plea at the earliest possible opportunity. Nevertheless a guilty plea is a guilty plea and you have to be given the appropriate credit for that. Suffice [sic] to say that the discount will not be as large as it would have been had you gotten to it earlier. The guilty plea of course has to be looked at in lieu [sic] of the fact that you are currently serving a sentence in relation to the offences for which you have been convicted and I say that to mean that there has to be some balancing of your guilty plea against the fact that you now have previous convictions, all for serious offences, two for firearm, and two being involved in violence, Robbery with Aggravation, similar to this case, as well as Wounding with intent. So the Court has to take all those factors into account and I do take seriously what has been urged on your behalf and in particular, the expressions of faith and confidence which both Elder Evering and Your Counsel have indicated the remorse in you, in light of your interactions. We are taking everything into account.’

4 A single supplementary ground of appeal was filed on behalf of the appellant and the original ground abandoned. The ground reads:

‘The Learned Trial Judge erred in failing to grant an appropriate discount on the Appellant's sentence in light of his plea of guilty.’

5 Miss McBean submitted that there has been a long established principle of sentencing that the court will be more lenient on an accused who has pleaded guilty by giving him a discount in the sentence imposed because he has saved the court's time and resources. She also submitted that there has been a long established principle at common law that the discount the accused would receive is a reduction of one-third or a quarter of the sentence the accused would have received had he been tried and convicted, and not a discount on the maximum sentence. She cited the authority of Basil Bruce v R [2014] JMCA Crim 10 to show that a reduction of one-third has been adopted in our jurisdiction. She further submitted that the usual range of sentences for robbery with aggravation is 15 years, and two-thirds of that would be 10 years, but given the appellant's antecedents and the circumstances of this case, an appropriate sentence would be 12 years. Mr Brown, at the invitation of the court, submitted that the appellant may not have had the full benefit of the guilty plea as having waited for, it seems, three years, the benefit to be derived from the plea, that is, saving the court's resources, would have been diminished.

6 It is well accepted that when a person pleads guilty his sentence should be reduced ( Archbold: Criminal Pleading, Evidence and Practice 2013 edn:—Sentence and Orders on Conviction, para. 5–112 ). In R v Boyd (1980) 2 Cr App R (S) 234, the court stated that the policy of the courts is that where a man pleads guilty, ‘the court encourages a plea of guilty by knocking something off the sentence which would have been imposed if there had not been a plea of guilty’. This court endorsed that position in R v Everald Dunkley RMCA No 55/2001, delivered 5 July 2002 where, in referring to and applying its earlier decision in R v Delroy Scott (1989) 26 JLR 409, it stated that ‘this act of pleading guilty must be a prime consideration in favour of the offender, who has admitted his wrong on the first opportunity to do so before the court [and] [t]here ought to be some degree of discounting, that is in a reduction of sentence’.

7 It is of significance that the court in Everald Dunkley stated that the discount ought to be given where the plea of guilty was given at the first opportunity, the implication being that the court may not be as lenient if there is delay in giving the guilty plea. Indeed, in R v Hall (2007) 2 Cr App R (S) 42, the court noted that where an accused had not pleaded guilty at the first given or earliest opportunity the discount or credit given would be less than other accused who pleaded guilty at the first given opportunity. In that case, at a plea and case management hearing the accused pleaded guilty but on the basis of a plea put forward orally, which was not accepted by the Crown. The appellant then put forward a written basis of plea which was closer to the Crown's case, but that too was not accepted by the Crown. Finally, he caved in as...