Kurt Taylor v R

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 01 July 2016
• Neutral Citation: JM 2016 CA 70
• Docket Number: CRIMINAL APPEAL NO 102/2014
• Court: Court of Appeal (Jamaica)
• Date: 01 July 2016

[2016] JMCA Crim 23

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sin Clair-Haynes JA

The Hon Mr Justice F Williams JA

CRIMINAL APPEAL NO 102/2014

Kurt Taylor

and

R

Yushaine Morgan for the appellant

Miss Paula Llewellyn QC, Director of Public Prosecutions and Miss Cheryl-Lee Bolton for the Crown

F Williams JA

1 On 13 June 2016 we heard this appeal and made the following orders:

• ‘1. The appeal is allowed.

• 2. The sentence of 5 years' imprisonment at hard labour imposed on 5 December 2014 is hereby set aside and a sentence of three (3) years' imprisonment is substituted therefor.

• 3. The court orders the immediate release of the appellant on compassionate grounds, and further orders that the remainder of his sentence of three years' imprisonment be suspended for a period of two years from today's date.

• 4. The sentence of three years' imprisonment is to be reckoned as having commenced on 5 December 2014.’

2 This is the fulfillment of our promise made then to put our reasons in writing.

3 This is an appeal against sentence only, the appellant having on 3 December 2014 pleaded guilty to the offence of knowingly possessing identity information of persons contrary to section 10(1) of the Law Reform (Fraudulent Transactions) (Special Provisions) Act, 2013 (the Act). By item 8 of the schedule to the Act, wherein are listed the offences and penalties, the penalty for a breach of the particular subsection under which the appellant was charged is stated to be:

‘Fine or imprisonment not exceeding fifteen years or both such fine and imprisonment’.

4 The guilty plea was entered in the circuit court for the parish of Saint Elizabeth. The appellant was sentenced on 5 December 2014 to serve a period of imprisonment of five years at hard labour.

5 He now appeals that sentence, having been granted leave to do so by a single judge of this court on 7 March 2016. In the notice of appeal filed by the appellant, these are the stated grounds:

• ‘a) That the sentence imposed by the Learned Trial Judge was harsh and manifestly excessive having regard to all the circumstances.

• b) That the Learned Trial Judge failed to give adequate consideration to the Appellant's Guilty Plea and Good Social Enquiry Report in passing her sentence.

• c) That the Learned Trial Judge erred in finding that the Appellant was not remorseful.

• d) That the Learned Trial Judge erred in taking into consideration the effect of illegal Lottery scamming on victims when that offence was not a part of the instance [sic] case or the facts outlined.’

6 However, in skeleton submissions dated and filed 9 June 2016, Mr. Yushaine Morgan, counsel for the appellant abandoned ground b and what he refers to as ground 5 (which, actually, does not exist), the former on the basis that it overlaps with ground c. In a nutshell, therefore, the bases of the appellant's challenge to his sentence are that: (i) it is manifestly excessive; (ii) the learned judge erred in regarding him as not having been remorseful; and (iii) the learned judge also erred in considering the effects of lottery scamming on victims.

The background facts

7 The facts as presented by the prosecution (to be found at pages 2 and 3 of the transcript) after the plea of guilty was entered were to the effect that, on 30 November 2013, the police, acting on information and with the intention of executing a search warrant under the Act, went to the appellant's residence in Jerusalem Housing Scheme, Santa Cruz, in the parish of Saint Elizabeth. A bunk bed in a bedroom in which the appellant was found was searched and a sheet of paper with names along with United States telephone numbers and addresses (commonly referred to as a “lead sheet”) were found below the top bunk. This sheet of paper was seized along with two cellular telephones. In the contacts folder of one of the phones, a name and telephone number that appeared on the lead sheet was found. On being cautioned after being arrested and charged, the appellant made no statement.

The sentencing process

8 In the sentencing process, the learned judge had the benefit of the antecedents of the appellant, a social enquiry report and the submissions of counsel who appeared for him.

9 In briefest outline, the antecedent report portrayed the appellant as someone who had been gainfully employed since leaving school, working at various times as a truck driver, mechanic and, at the time of his arrest, as a cellular-telephone technician. At age 32 at the time of his sentencing, he had no previous convictions. The general comments that ended the report stated:

‘The accused is said to be a very hard worker who works for his living and a good father who spends a lot of time with his daughter.’

10 The social enquiry report was not read into the record. However the learned judge made reference to its contents in her sentencing remarks and we were helpfully provided with a copy of it by counsel for the appellant. It mirrors the image of industry that emerged in the reading of the appellant's antecedent history. It indicated that even after being shot in 2010 and, as a result, being confined to a wheelchair, he continued to try to earn an honest living for himself and to provide for his then 10-year old daughter. The following were the words of parts of the last two paragraphs of the social enquiry report:

‘Citizens along with his sister have expressed how surprised they were when they learnt that he was charged for this current offence. They are in sympathy with him and are asking that he be given a non-custodial sentence.

Mr. Taylor is charged with a serious offence: when his antecedent prior to this incident and his physical status is [sic] considered however there appears to be ground for clemency. Perhaps the honourable court could consider a non-custodial sentence in disposing of this matter.’

11 The oral submissions made on the appellant's behalf in the sentencing process sought to capitalize on these positive features of both the social enquiry report and the antecedents. Counsel tried to persuade the learned judge not to impose a custodial sentencing, urging the learned judge to consider, inter alia , two cases in which he said that non-custodial sentences were imposed for similar offences: (i) one he referred to as R v Kemarley Ballentine in which he said that on 29 September 2014 a fine of $300,000.00 was imposed in the circuit court for the parish of St Catherine; and (ii) R v George Thompson, a 24-year old, in respect of whom he said a probation order was made in the circuit court for the parish of Saint James on 25 January 2014. Counsel also emphasized that the appellant was ‘extremely physically challenged’.

The sentencing remarks

12 In her sentencing remarks, or even during the plea in mitigation, the learned judge observed that there were cases other than those to which she was referred by defence counsel in which custodial sentences were imposed. And even in respect of those cases to which counsel referred, it appears from her questioning of counsel and his responses that the age of one person and the court regarding the other as destitute were considerations that helped to persuade the judges in those cases to have imposed non-custodial sentences.

13 It is clear, however, that what seems to have weighed heavily with the learned judge in this case was her perception, based on her interpretation of the contents of the social enquiry report, of what she regarded as the appellant's lack of remorse. This is reflected in the learned judge's observation at page 19 of the transcript, where the following is stated:

‘…it is significant to my mind, is that there is a lack of remorse expressed by Mr Taylor, not even an acknowledgement of the offence by Mr Taylor.’

14 Similarly, at page 21 of the transcript, the learned judge is recorded as saying that:

‘…he had not expressed one iota of remorse for the offence or whether or not he intends not to do such a thing again.’

15 Otherwise, the learned judge in her remarks demonstrates an awareness of and considers many of the various principles of sentencing. It was her view that a custodial sentence was suited to this appellant in this case.

The appeal

16 When this appeal came on for hearing, the court had the benefit of a new social enquiry report dated 25 May 2016. Its contents addressed in greater detail than the first social enquiry report did (and to some extent, could), the appellant's physical condition and the effects that that condition was having on him in serving his sentence.

17 These were among the more-significant passages indicating the challenges being faced by the appellant set out at page 5 of the report:

‘ Response to Social And Community Life in Prison

Mr. Taylor, from all indication has operated within his limitations. He participates as best as he can and has abided by the institution's rules and regulations and as such, he has no institution breach recorded against him. His conduct and rapport among fellow inmates and Correctional Officers is deemed commendable.

Current or Potential Welfare Problems

Due to his disability he is unable to receive adequate care.

Attitude Towards...