Kevin Taylor v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 10 November 2023 |
| Neutral Citation | JM 2023 CA 146 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 88/2019 |
[2023] JMCA Crim 50
THE HON Mr Justice F Williams JA
THE HON Miss Justice Simmons JA
THE HON Mr Justice Brown JA
SUPREME COURT CRIMINAL APPEAL NO 88/2019
IN THE COURT OF APPEAL
Criminal law — buggery — whether the offence is triable in the Gun Court — whether the offence is classified as a felony or misdemeanour — Firearms Act, section 25 and Gun Court Act, sections 2 and 5(2)
Criminal law — Sentencing — illegal possession of firearm, assault, grievous sexual assault, rape, buggery — whether sentences are manifestly excessive
Ms Melrose G Reid instructed by Melrose G Reid & Associates for the applicant
André Wedderburn, Ms Dainty Davis and Kemar Setal for the Crown
The appellant, who was a licensed firearm holder, was tried in the High Court Division of the Gun Court in the parish of Kingston on 24, 30, 31 July and 3 September 2019, on an indictment charging him with eight counts. On 3 September 2019, he was found guilty on all counts and sentenced as indicated below:
Count 1 (illegal possession of firearm)
15 years' imprisonment at hard labour
Count 2 (assault)
3 years' imprisonment at hard labour
Count 3 (rape)
35 years' imprisonment at hard labour
Counts 4, 5, 7 & 8 (grievous sexual assault)
35 years' imprisonment at hard labour
Count 6 (buggery)
nine years' imprisonment at hard labour
The appellant, aggrieved by this outcome, filed an application for leave to appeal his conviction and sentence dated 30 September 2019. On 20 September 2021, a single judge of this court refused his application for leave to appeal his conviction. He was, however, granted leave to appeal his sentence.
The appellant renewed his application for leave to appeal his conviction before the full court, as is his right. In the written submissions filed on his behalf, counsel sought the court's permission to abandon the original grounds of appeal and to instead rely on the following six supplemental grounds of appeal:
“Ground 1 – The Appellant was wrongfully convicted under section 20(1)(b) of the Firearms Act for illegal possession of a firearm.
Ground 2 - The Learned Trial Judge (LTJ) erred in law when he heard and determined the sexual offences counts in the Gun Court, which were wrongly grounded vide section 20(1)(b) of the Firearms Act.
Ground 3 – The LTJ lacked jurisdiction to hear and determine the offence of buggery in the Gun Court.
Ground 4 – The LTJ erred in law when he heard and determined Count 2 being assault with a firearm vide section 20(1)(b) of the Firearms Act.
Ground 5 – The LTJ erred when he stated in his summation that he had jurisdiction to hear the matters, when he lacked jurisdiction to have heard all the counts on the indictment.
Ground 6 – The LTJ failed in his summation to give a balanced view of the case for the Appellant; and found him guilty on the evidence of the Complainant.”
The sentences imposed were challenged as follows:
“(1) The [learned sentencing judge] failed to apply the principles of sentences [sic] in all seven counts.
(2) The [learned sentencing judge] failed to apply the [l]aw in Count 2 – [a]ssault.”
The facts in this matter are quite disturbing. However, they are being set out to provide a full understanding of the factors that had to be considered in arriving at a decision on the appropriate sentences.
At trial, the Crown relied on the evidence of four witnesses; SW (‘the complainant’), LV, Corporal Elvis Bowers, and Detective Sergeant Andrea Allen. The appellant gave sworn testimony.
The complainant's evidence was that on or about 19 December 2017 at about midnight, she was standing at the Texaco gas station in Spanish Town, in the parish of Saint Catherine, awaiting a taxi to go home. The appellant, who was driving a motor car, drove up to her and asked if she wanted a lift. The complainant accepted and he took her to her home at Hampton Green in the same parish. On their arrival, the appellant came out of the car, pointed a gun at her, and entered the complainant's house. They went into the bedroom. Whilst still pointing the gun at her, the appellant told the complainant to take off her clothes. She complied and he pushed her on the bed.
The complainant was then instructed to, “[s]kin out [her] p…y”. The appellant then proceeded to put his finger in her anus. He then “pushed” his penis in her mouth and told her to suck it. He then had sexual intercourse with her without her consent. He also placed his penis in her anus. She stated that she tried to push him off because she was in pain. The appellant “boxed” her. When he was finished he pushed the gun in her mouth and told her to “suck off the gun” after which he placed the gun in her vagina and told her to “f..k [his] gun” whilst moving it inside of her. He then proceeded to place his mouth on the complainant's vagina. The complainant stated that she tried to push him off as it was painful. The appellant also gave the complainant a substance to drink, spat in her face and dragged her hair.
After it was over, the complainant pretended that she was looking for something, left the room and went into the kitchen where she grabbed a dress and ran barefooted to her brother, LV's house. Thereafter, LV reported the matter to the police. His younger brother L, the complainant and the police went to the complainant's home. The appellant, who was still there, was taken into custody.
LV gave evidence that at the time when the complainant arrived at his house, she was not wearing shoes and told him that she had been raped. He also stated that it would have probably taken the complainant approximately 25 or 30 minutes to run to his house from where she lived.
The appellant in his evidence stated that he was a police officer. His defence was that the complainant had consented to the acts for which he was charged.
At the commencement of this hearing, counsel for the appellant commendably sought and was granted permission to abandon grounds one, two, four, five and six of the grounds of appeal. Those grounds, except ground six, sought to challenge the jurisdiction of the court to hear the matter on the basis that the appellant, being a licensed firearm holder, was wrongly charged with illegal possession of a firearm pursuant to section 20(1)(b) of the Firearms Act. This issue was addressed in the recent decision of Phillip Simpson and another v R [2023] JMCA Crim 33, in which P Williams JA who delivered the decision of the court stated at para. [10]:
“…it is noted that section 20 of the Firearms Act deals with the possession of firearms and ammunition and specifies that a person shall not be in possession of a firearm or ammunition except under and in accordance with the terms and conditions of a firearm user's licence. The section lists the category of persons who are exempted from that prohibition and the circumstances of possession that would not attract the penalty provided for in section 20(4). No other offence is created under the section. A firearm offence, therefore, must be one in which a firearm is involved, and the possession of that firearm must be unlawful. Section 25 of the Act addresses circumstances where it can be established that the weapon that was used could have been an imitation firearm or where the person in possession of the firearm had a licence and would not be in illegal possession, per se. In those circumstances, if the firearm is used to commit certain offences, the possession is deemed illegal by virtue of section 20(5)(c) of the Act. This is the interpretation of the interplay between these sections, which this court has found to be correct and has followed for these several decades…” (Emphasis supplied)
The remaining grounds of appeal were ground three and those pertaining to the sentences imposed.
Ground three: The learned trial judge lacked jurisdiction to hear and determine the offence of buggery in the Gun Court.
Counsel for the appellant, Mrs Melrose Reid, submitted that the learned judge had no jurisdiction to hear and determine the matter in the Gun Court as the offence of buggery is neither a scheduled offence under the Firearms Act nor a felony. It was submitted that in the circumstances, the offence is only triable in the circuit court.
Ms Davis agreed with Mrs Reid's submission that the offence of buggery is not triable in the Gun Court and, as such, the learned judge had no jurisdiction to hear the matter. She stated that the offence of buggery is a common law offence and does not appear in the First Schedule to the Firearms Act. Additionally, there is no indication in the Offences Against the Person Act (‘OAPA’) as to whether the offence is a felony or misdemeanour. In this regard, Ms Davis stated that in the United Kingdom the offence has been classified as a felony by way of a statute.
Section 5(2) of the Gun Court Act which deals with the jurisdiction of the High Court Division of the Gun Court, states as follows:
“5(2) A High Court Division of the Court shall have jurisdiction to hear and determine –
(a) any firearm offence, other than murder or treason;
(b) any other offence specified in the Schedule,
whether committed in Kingston or St Andrew or any other parish, other than the parishes referred to in section 8A (3) or a parish designated under section 8D.”
A “firearm offence” is defined in section 2 of the said Act as:
“(a) any offence contrary to section 20 of the Firearms Act;
(b) any other offence whatsoever involving a firearm and in which the offender's possession of the firearm is contrary to section 20 of the Firearms Act;”
The appellant, who was the holder of a Firearm User's Licence, was tried and convicted for the offence of illegal possession of firearm contrary to section 20(1)(b) of the...
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