Kenneth Hylton v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Harris JA
• Judgment Date: 06 November 2013
• Neutral Citation: [2013] JMCA Crim 57
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 99/2010
• Date: 06 November 2013

Kenneth Hylton

and

R

[2013] JMCA Crim 57

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CRIMINAL APPEAL NO 99/2010

JAMAICA

IN THE COURT OF APPEAL

Robert Fletcher and Mrs Nadine Atkinson-Flowers for the applicant

Miss Paula Llewellyn QC, Director of Public Prosecutions and Miss Melissa Simms for the Crown

ORAL JUDGMENT

Harris JA

1 On 24 September 2010, the applicant, Kenneth Hylton, was convicted in the High Court Division of the Gun Court of the offences of illegal possession of firearm and illegal possession of ammunition. He was sentenced to 15 years imprisonment for the illegal possession of firearm and 10 years imprisonment for illegal possession of ammunition. It was ordered that the sentences should run concurrently.

2 An application by him for leave to appeal against conviction and sentence was refused by a single judge. Before us is a renewal of that application.

Case for the prosecution

3 The facts are that on the morning of 22 January 2010, a team of police personnel was in Yallahs in the parish of Saint Thomas engaging in an operation in search of wanted men and illegal weapons. At about five o'clock, the police, armed with a search warrant, went to Abby Lobby Lane in Yallahs where the applicant lived with his nephew Ryan Hylton. Corporal Kevin Foster, a member of the police party, went to the side of the house, looked into a room through a partially opened glass louvre window, which he further opened, and saw the applicant who was dressed in a red mesh merino and a pair of black shorts.

4 Corporal Foster was about 5 or 6 feet away from him. The light was on in the room. Corporal Foster shouted, “Police don't move”. The applicant threw a firearm inside a wardrobe and then ran out of the room. During this time, Corporal Foster observed the applicant for about a minute. Soon after, Corporal Foster went to the front of the house where there were other policemen. There he saw the applicant again, he and his nephew having come to the entrance of the house. The warrant was read and handed to the nephew by Sergeant Bennett.

5 The applicant was taken back to the room from which he had run. In the room, Corporal Dave Francis opened the wardrobe from which the gun was recovered. It was a GB 9mm pistol containing nine millimeter cartridges. The firearm was shown to the applicant by the police and under caution, he said, “You dun si wah a gwaan areadi, boss, a my gun, mi nah rob and kill nobody wid it, nuh kill me.” He admitted ownership of the gun.

The applicant's case

6 The applicant gave sworn testimony in which he stated that on 22 January 2010, at about 4:35 in the morning he was asleep in his bed, dressed in his underwear. He said the light in his room was off. Having heard knocking on the door of his house, he went to the verandah and turned on the verandah light.

7 The glass louvre windows in his house, which had curtains, were closed.

8 He, and his nephew Ryan, who was also in the house, having gone to the verandah, he saw the police who told him that they had a search warrant. This search warrant was not shown to him. The police asked him to show them his room. When he arrived there, two other police personnel were already in the room and a female officer was conducting a search of it. He, having been dressed in underwear only, was told by the police to get dressed. In obedience to the command, he put on a red merino and a pair of black shorts.

9 The wardrobe was searched, following which, he felt a blow to his neck. Turning around, he saw one of the policemen holding a firearm. This policeman asked him for the rest of the firearms. He denied that he told the police that the gun was his and he had kept it for his protection.

Grounds of appeal

10 The original grounds of appeal were abandoned and the applicant was granted leave to argue the following supplemental grounds:

• “1. The sentence is manifestly excessive.

• 2. The learned trial judge failed to consider aspects of the evidence which could have raised the issue of motive to lie on the part of the officers and which would therefore have impugned their credibility.”

Submissions

11 Mr Fletcher argued that in sentencing, deterrence and prevention were the factors which the learned judge had taken into account, but although these factors may be relevant, rehabilitation is a requirement within the context of the sentencing process and ought to have been considered by the learned judge. The sentence should fit the crime and be tailored to fit the offender, he argued. It was his further submission that the applicant is 52 years old, had been actively employed and has a young child who is dependent on him and these factors ought to have been taken into account by the learned judge. All the relevant factors in the classical principles of sentencing can be accomplished by a reduction of the sentences which have been imposed by using a sentence of 10 years as the starting point for possession simpliciter, he submitted. In support of his submissions, Mr Fletcher cited the case of Daniel Robinson v R [2010] JMCA Crim 75, and made mention of the case of R v Beckford and Lewis (1980) 17 JLR 202 which was cited with approval in Robinson.

Ground one — Sentence

12 It has long been recognized that a trial judge is charged with the responsibility of fixing an appropriate sentence. The determination of an appropriate sentence being a discretionary matter for him or her, this court will not interfere with a sentence imposed save and except it is found to be manifestly excessive — see Alpha Green (1969) 11 JLR 283.

13 In R v Beckford and Lewis, Rowe JA (as he then was), carried out a review of the four classical principles of sentencing laid down by Lawton LJ in R v Sergeant (1974) 60 Cr App Rep 74 namely, retribution, deterrence, prevention and rehabilitation and stated that any sentence imposed must fit the offender and the offence.

14 The gravamen of Mr Fletcher's complaint is that the learned judge, in sentencing, concentrated on deterrence and prevention but failed to pay due regard to the rehabilitation element. It is perfectly true that in sentencing, rehabilitation should be taken into account in conjunction with the other principles laid down in R v Sergeant. The concept of rehabilitation embraces an assurance that if a custodial sentence has to be imposed, the length of the sentence should be such that it affords the offender, on release from incarceration, the opportunity to return to enjoy a useful and worthwhile life.

15 At the time...