Lennox Golding v R
| Jurisdiction | Jamaica |
| Judge | Laing JA (AG) |
| Judgment Date | 01 July 2022 |
| Neutral Citation | JM 2022 CA 075 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 1/2018 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 34
THE HON Miss Justice P Williams JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Mr Justice Laing JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 1/2018
IN THE COURT OF APPEAL
Kemar Robinson for the appellant
Ms Shauna-Kaye James for the Crown
The appellant was tried on an indictment that contained two counts, before George J (‘the learned trial judge’), sitting without a jury, in the High Court division of the Gun Court for the parish of Kingston. On 4 July 2017, he was convicted on both counts, which were for illegal possession of firearm (count one), and wounding with intent (count two). On 15 December 2017, he was sentenced to 15 years’ imprisonment on each count. The sentences were ordered to run concurrently.
The appellant filed a Criminal Form B1 seeking leave to appeal his convictions and sentences. A single judge of this court considered and refused his application for leave to appeal his convictions but granted leave to appeal the sentences. The appellant, as he is entitled to do, renewed his application for leave to appeal his convictions in relation to both counts of the indictment, before us.
On 3 June 2022, after previously hearing submissions from both parties in relation to that application for leave and appeal against sentence, we made the following orders:
At that time, we promised to put our reasons in writing. This is a fulfilment of that promise.
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1. The application for leave to appeal against conviction is refused.
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2. The appeal against sentence is allowed.
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3. The sentences are set aside and substituted therefor are the following:
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(a) Illegal possession of firearm: nine years’ and three weeks’ imprisonment at hard labour, (with 11 months and one week spent in custody on pre-sentence remand having been credited);
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(b) Wounding with intent: 14 years’ and three weeks’ imprisonment at hard labour, (with 11 months and one week spent in custody on pre-sentence remand having been credited).
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5. The sentences are to run concurrently and are to be reckoned as having commenced on 15 December 2017.
The case for the prosecution was that on 16 September 2015, at about 12:30 pm, Michael Calder, (‘the complainant’), was driving his taxicab (‘the taxi’), which was a Toyota Corolla motor car. He was heading in the direction of the Gregory Park community in Saint Catherine. There were three female passengers in the taxi. He pulled the taxi to the left of the roadway and stopped in front of the Watson Grove community in the same parish to allow a passenger (subsequently confirmed to be Ms Sharlene Smith), to disembark. After Ms Smith got out of the taxi, and before it moved off, the complainant heard the sound of a motorbike behind the taxi. He looked in his right door mirror of the taxi and noticed the appellant riding a motorbike (‘the bike’) with a pillion passenger, almost at the back door of the taxi, a distance which was estimated at between 8 – 10 feet. The complainant said he saw the face of the appellant, and having recognised him, he did not bother to drive off, but instead waited for him to approach the driver's side window, which was down. When the bike came up to the window next to him, and was about 6 inches away, he was looking through the window, when he heard a loud explosion that sounded like a gunshot, and he immediately experienced a numb feeling in his right shoulder. He saw the pillion passenger pointing a gun at him and so he sped off. The bike was being driven slowly behind the taxi and the complainant increased his speed and went on his way.
When the complainant reached a roundabout, the two remaining passengers disembarked. The complainant saw two police officers and after telling them of the incident, they escorted him to the Spanish Town Hospital where he was treated and remained for approximately a month.
The complainant's evidence in chief was that from the time he saw the appellant and the pillion through his side mirror to the time he sped off after the shooting was about 45 seconds and of that period, he saw the appellant's face for the majority of the time. The complainant, subsequently, on 30 September 2015, identified the appellant, by way of a video identification parade.
At the trial, the appellant gave sworn evidence and called three witnesses in his defence, Ms Sharlene Smith, Corporal Marvin Senior and Wayne Reeves. He deployed a defence of alibi. He accounted for his whereabouts on the day of the incident and stated that on 16 September 2015, at approximately 11:30 am, he was at the Spanish Town Hospital where he went to remove a pin from his injured thumb. He had reached the hospital at some “minutes to 11” and had ridden a motorbike that he had borrowed from his friend Dwight Richards. The doctors were on strike and after waiting between 30 to 45 minutes, he left the hospital and went to Tawes Pen in the same parish to visit his friend Wayne Reeves at a cook shop and grocery where he worked. The appellant remained there for about two hours “reasoning”, drinking and smoking until about 2:00 pm when he left and went to Gregory Park to a food shop.
Wayne Reeves gave evidence that the appellant rode a bike and visited him at his place of work at approximately 12 noon and they were together until the appellant left at 2:00 pm.
Ms Sharlene Smith was the passenger for whom the complainant had stopped, just before the shooting, to allow to disembark the taxi. She testified that after she alighted from the taxi, she heard the sound of a bike. As her back was turned to the main road, she did not know where the bike came from. After hearing the sound of the bike, she heard the sound of a gunshot and then she saw the taxi skidding. She then walked home. It was her estimation that from the time she heard the sound of the bike to when she saw the car skid, was not more than three seconds.
The evidence of Corporal Senior was that on the day of the incident, he interviewed the complainant at approximately 12:20 pm and he was not given the name of any of the two men who were on the bike.
Counsel for the appellant, Mr Robinson, sought and was granted permission for the appellant to abandon the original grounds of appeal. The renewed application for leave to appeal, before this court, proposed four supplemental grounds as contained in Mr Robinson's skeleton submissions, namely:
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“1. The Learned Trial Judge erred in her analysis of the evidence in relation to the identification by the complainant which resulted in her misdirecting herself that the opportunity for identification was good.
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2. The Learned Trial Judge erred in her analysis of the reliability and credibility of the Prosecution's case which resulted in her returning a verdict of guilty.
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3. The Learned Trial Judge's rejection of the appellants’ case, without analysis, was unreasonable and she failed to give fair consideration to the appellant's case without providing sufficient reason as to why his case was rejected despite his evidence being consistent and credible.
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4. [T]he prescribed minimum sentence of fifteen years for the offence of wounding with intent, in the circumstances of this case, is manifestly excessive and unjust.”
Before addressing the appeal, we noted that there was no issue joined between the parties as to the applicable provision under which the appellant had been charged. Section 20(1)(b) of the Firearms Act (‘the Act’) prohibits a person from being in possession of a firearm or ammunition except under and in accordance with the terms and conditions of a firearm user's licence. For the offence of wounding with intent, the relevant provision is section 20(1) of the Offences Against the Person Act. Section 20(2) states the punishment where a firearm is used and provides that a person who is convicted before a circuit court of wounding with intent with the use of a firearm, shall be liable to imprisonment for life or such other term not being less than 15 years, as the court considers appropriate.
It was undisputed that the appellant was not the person who did the physical act of shooting at the complainant and wounding him. This, on the case for the prosecution, was done by the pillion passenger.
Section 20(5)(a) of the Act provides as follows:
“20. - (5) In any prosecution for an offence under this section-
(a) any person who is in the company of someone who uses or attempts to use a firearm to commit-
(i) any felony; or
(ii) any offence involving either an assault or the resisting of lawful apprehension of any person,
shall, if the circumstances give rise to a reasonable presumption that he was present to aid or abet the commission of the felony or offence aforesaid, be treated, in the absence of reasonable excuse, as being also in possession of the firearm; ….”
It is now settled by cases such as R v Clovis Patterson, (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 81/2004, judgment delivered 20 April 2007, that the effect of this section is that where a person is found to be present to aid and abet the principal offender who is in unlawful possession of a firearm, and the principal offender uses or attempts to use that firearm in the commission of a felony, such as the offence of shooting with intent, the aider and abettor is deemed to also be in unlawful or illegal possession of that firearm.
Although it was not raised as a ground of appeal, we considered whether the learned trial judge was required to make an express declaration that she was relying on section 20(5) of the Act. We accordingly invited counsel to address us on this issue. Mr Robinson highlighted the fact that the appellant has denied being present at the material time and place of the...
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