Lavar Whitter v R
| Jurisdiction | Jamaica |
| Judge | Laing JA |
| Judgment Date | 08 July 2022 |
| Neutral Citation | JM 2022 CA 91 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2019CR00019 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 44
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice D Fraser JA
THE HON Mr Justice Laing JA (AG)
SUPREME COURT CRIMINAL APPEAL NO COA2019CR00019
IN THE COURT OF APPEAL
Kemoy McEkron for the appellant
Mrs Sharon Milwood-Moore and Miss Monique Scott for the Crown
Laing JA (AG)
On 29 July 2017, at approximately 11:30 pm, the applicant was walking in Chancery Hall, Red Hills, in the parish of Saint Andrew, when he was stopped by police officers. A Smith and Wesson pistol with seven live rounds of ammunition was taken from his person.
The appellant was tried, before Graham-Allen J (‘the learned trial judge’), sitting without a jury, in the High Court division of the Gun Court holden at King Street, Kingston, on an indictment that contained two counts, which were for illegal possession of firearm (count one) and illegal possession of ammunition (count two). On 31 August 2018, he was convicted on both counts. On 12 October 2018, he was sentenced to 9 years and three months' imprisonment on each count. The sentences were ordered to run concurrently.
The applicant filed a Criminal Form B1 seeking leave to appeal his convictions and sentences. A single judge of this court considered and refused his application. Mr McEkron has sensibly conceded that there is no merit in a challenge to the conviction of the applicant and, accordingly, did not argue the single ground of appeal against conviction. The applicant renewed his application for leave to appeal his sentences and was permitted to argue before us the following supplemental ground:
“The sentencing judge erred in failing to adequately demonstrate how she arrived at her sentence and whether she applied the relevant principles in sentencing the applicant.”
Mr McEkron contended that on the face of it, the sentences do not appear to be manifestly excessive when one considers the range of sentences for the offences. However, based on the peculiarities of the case and the failure of the learned trial judge to carry out the sentencing exercise in accordance with the well-known principles of sentencing, this affected the eventual sentences that were passed on the applicant. Counsel referred to the guidance of this court given in the case of Meisha Clement v R [2016] JMCA Crim 26 (‘ Meisha Clement’) and submitted that the learned trial judge erred when she considered only one mitigating factor. Furthermore, in so doing, she did not demonstrate that she applied her mind to the said factor in arriving at her sentence. Counsel submitted that the following factors ought to have been demonstrably considered by the learned trial judge in mitigation of the sentence:
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(1) the age of the applicant;
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(2) the fact that the applicant was gainfully employed and his employer gave character evidence on his behalf;
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(3) the personal circumstances of the applicant, he being a father of four children who were all dependent on him. The applicant also had health concerns; and
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(4) the applicant had no previous conviction.
It was argued by counsel, that these mitigating factors, as identified, should have been weighed against the single aggravating factor identified by the learned trial judge in her determination of the sentences. Accordingly, her failure to do so provides a reason for this court to consider whether she acted incorrectly in exercising her discretion in the sentencing of the applicant.
It was also submitted by Mr McEkron, that the learned trial judge stated, “… I cannot close my eyes to the report of the probation officer”, in her exchange with counsel who represented the applicant at the trial. However, the learned trial judge did not indicate how the information contained in the social enquiry report from the probation officer influenced the sentences that were handed down.
Mr McEkron did not take issue with the learned trial judge using 10 years as the starting point for sentencing. However, he posited that had the appropriate mitigating factors been considered and the proper methodology been employed, the single aggravating factor would have increased the sentence to 12 years, but the mitigating factors would have reduced it to eight years. The period of nine months spent in custody on pre-trial remand would be deducted from this time, resulting in a sentence of seven years and three months in respect of each offence.
The essence of the submissions on behalf of the Crown was that the sentences imposed by the learned trial judge for the offences fell within the range of sentences that the court is empowered to impose and which is usually given for like offences committed in similar circumstances. Further, that although the learned trial judge did not engage in a mathematical calculation to arrive at the sentences, she evidently applied the relevant sentencing principles. Mrs Milwood-Moore, relied on the observations of P Williams JA in Kemar Effs v R [2022] JMCA Crim 9 at para. [58] and McDonald-Bishop JA in Lincoln McKoy v R [2019] JMCA Crim 35 at para. [54], in support of these submissions.
Reference was also made to several cases involving the offences of illegal possession of firearm and illegal possession of ammunition to illustrate the usual range of sentences imposed for these offences. Counsel cited, for instance, the case of Ian Wright v R [2011] JMCA 11, in which this court set aside a sentence of 12 years' imprisonment and substituted a sentence of 10 years' imprisonment for illegal possession of a firearm taken from the leg of the applicant's trousers. She also referenced Keith Reid v R [2014] JMCA Crim 39, in which the court upheld a sentence of 12 years' imprisonment for the offence of illegal possession of firearm, where the firearm was recovered under a pillow in a room occupied by the applicant and in circumstances where the applicant had a previous conviction recorded against his name for a similar offence.
The Crown also commended the case of R v Dwayne Taylor [2021] JMSC Crim 05 for this court's consideration. In this case, the firearm and ammunition were recovered from a hidden compartment in a motor car being driven by the accused. He was sentenced to 15 years' imprisonment in respect of the illegal possession of firearm and five years' imprisonment in respect of the ammunition.
Mrs Milwood-Moore submitted that when these cases are considered, the sentences imposed by the learned trial judge cannot be said to be manifestly excessive. However, if the court was of the view that the sentences should be reconsidered, an appropriate starting point would be 10 years. The aggravating factors would be the firearm recovered from the applicant, the fact that the applicant did not accept responsibility for his actions, the seriousness of the offence, the prevalence of illegal firearms in the society, and the need for the community to be protected. It was submitted that these aggravating factors would increase the sentence to 12 years.
It was further submitted that the mitigating factors would be the applicant's youth and the possibility of rehabilitation, the fact that he had no previous convictions recorded against his name, his four children for whom he provided and the fact that he was gainfully employed. It was suggested that these mitigating factors would reduce the sentence to 10 years, from which the nine months spent in pre-trial custody would be deducted, resulting in a sentence of nine years and three months' imprisonment.
We have considered whether the sentence passed by the sentencing judge warrants the intervention of the court, pursuant to section 14(3) of the Judicature (Appellate Jurisdiction) Act, which provides that:
“On an appeal against sentence the Court shall, if they think that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.”
In analysing this issue, due consideration was given to the authority of R v Ball (1951) 35 Cr App R 164, at page 165, and the principles espoused therein, which have been repeatedly referred to by this court, that:
“In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial Judge has seen the prisoner and heard his history and any witnesses to character he may have chosen to call. It is only when a sentence appears to err in principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene.”
In Meisha Clement, at para. [43], Morrison P, in delivering the judgment of the court, explained the role of this court in analysing the appropriateness of the sentence that was passed, as follows:
“[43] On an appeal against sentence, therefore, this court's concern is to determine whether the sentence imposed by the judge (i) was arrived at by applying the usual, known and accepted principles of sentencing; and (ii) falls within the range of sentences which (a) the court is empowered to give for the particular offence, and (b) is usually given for like offences in like circumstances. Once this court determines that the sentence satisfies these criteria, it will be loath to interfere with the sentencing judge's exercise of his or her discretion.”
At para. [41] of Meisha Clement, Morrison P offered a roadmap to the sentencing judge, which has been refined in Daniel Roulston v R [2018] JMCA Crim 20, where McDonald-Bishop JA, at...
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