Lindell Howell v R

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 17 March 2017
• Neutral Citation: JM 2017 CA 11,[2017] JMCA Crim 9
• Court: Court of Appeal (Jamaica)
• Docket Number: Criminal Appeal No 57/2015
• Date: 17 March 2017

Lindell Howell

and

R

[2017] JMCA Crim 9

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Miss Justice Edwards JA (AG)

Criminal Appeal No 57/2015

JAMAICA

Supreme Court

Criminal Appeal - Sentencing — Arson — Appeal against sentence — Whether the sentence imposed was excessive — Whether the judge failed to give sufficient weight to the fact that the appellant pled guilty — Whether the guilty pleas was an indication of remorse — Discount for guilty plea — Appropriate sentence — Starting point for sentence — Principles of sentencing.

Ian Wilkinson QC and Lenroy Stewart for the appellant

Mrs Karen Seymour-Johnson for the Crown

Brooks JA

1 Mr Lindell Howell, on 17 July 2015, pleaded guilty to the offence of arson. He had set fire to the dwelling house of Mrs Monica Bailey-Smith, while she and other persons were inside the building. That was on 13 June 2013. The learned sentencing judge ordered him to serve 18 years imprisonment at hard labour. This was in the Circuit Court for the parish of Saint Mary in July 2015. There is some uncertainty on the record as to whether it was 23 or 24 July 2015. The earlier date will be used to give Mr Howell the benefit of the doubt. Mr Howell's application for permission to appeal against the sentence was granted by a single judge of this court.

2 The case, as revealed by the material before this court, was that Mr Howell, who was 59 years old at the time of the offence, had a cordial relationship with Mrs Bailey- Smith. It seems that they did many favours for each other. Their relationship even caused Mrs Bailey-Smith's husband to accuse Mr Howell of having an affair with Mrs Bailey-Smith.

3 On 12 June 2013, Mr Howell confessed to Mrs Bailey-Smith that he had a romantic attraction toward her. She, however, expressed disinterest in such a situation. The following night, after she and the other occupants of her house had turned in, Mr Howell blocked the doors to her house with wood, in order to prevent an exit, and set the house afire. Fortunately, the occupants escaped unhurt. Mrs Bailey-Smith fled the building through a window.

4 On 14 June 2013, the police accosted Mr Howell and he admitted having set the house afire. He accused Mrs Bailey-Smith of having used him and having people laugh at him.

5 There was no explanation for the extended time that it took for the case to be committed to the circuit court. Mr Howell was in custody during the entire period.

6 A social enquiry report into Mr Howell's character and circumstances showed that he was industrious. The community was, however, not sympathetic toward him. In fact, his house had been burned after his arrest for this offence. The report indicated that Mr Howell seemed to have tried to justify his offence. He made vicious allegations against Mrs Bailey-Smith. The probation officer, who prepared the report, stated that “Mr Howell did not seem to express remorse”.

7 In the sentencing exercise, it was revealed that Mr Howell had three previous convictions for violence, but the learned sentencing judge did not take them into account because of the length of time that had elapsed since the last one. He did take into account, however, that Mr Howell had expressed a reason for setting the house afire. The learned sentencing judge, in assessing the appropriate sentence, considered the antecedents, the social enquiry report, defence counsel's submissions on behalf of Mr Howell, the time Mr Howell spent in custody and the guilty plea.

8 The learned sentencing judge was of the view that Mr Howell was not genuinely remorseful. That seemed to be a factor that was influential in the sentence.

9 In this appeal, Mr Wilkinson QC submitted, on behalf of Mr Howell, that the sentence was manifestly excessive. He argued that the learned sentencing judge:

Mrs Seymour-Johnson, for the Crown, who also assisted the court in regard to the appeal, did not resist the main thrust of the appeal. She did, however, indicate that there was material which suggested that Mr Howell did not plead guilty at the first opportunity.

• a. did not give sufficient weight to the fact that Mr Howell had pleaded guilty;

• b. failed to recognise that the plea of guilt was an indication of remorse; and,

• c. failed to demonstrate that he had given Mr Howell full credit for the time that he had spent in custody.

10 Mr Wilkinson did not stress ground one of Mr Howell's supplemental grounds of appeal. That ground dealt with the learned judge's comment that Mr Howell may not have pleaded guilty at the first opportunity. This was an aspect of the issue of the weight to be granted to the plea of guilt. Learned Queen's Counsel pointed out, however, that Mr Howell admitted to the police the very day after the fire, that it was he who had set it.

11 In respect of the point that a guilty plea should be treated as an expression of remorse, Mr Wilkinson pointed to Meisha Clement v R [2016] JMCA Crim 26 in support of his submissions. He argued that the learned sentencing judge's failure to recognise that principle of law resulted in a miscarriage of justice.

12 On the issue of the credit to be afforded for the time spent in custody prior to the sentencing, Mr Wilkinson also relied, in part on Meisha Clement v R. He submitted that the authorities now suggest that full credit must be given to a convicted person for the time that has been spent in custody prior to sentencing. Learned Queen's Counsel also relied on the decision of the Caribbean Court of Justice in Romeo DaCosta Hall v The Queen [2011] CCJ 6 in support of his submissions. He argued that the learned sentencing judge did not demonstrate that he had taken into account the two years that Mr Howell had spent in custody prior to the date of sentencing.

13 Mr Wilkinson also submitted that the learned sentencing judge had failed to use the right starting point in considering the appropriate sentence for Mr Howell. As a result, learned counsel submitted, the sentence imposed was out of range with the sentences normally given for such offences. He relied, in part, on R v Marcellous Robinson SCCA No 47/1997 (delivered 7 July 1998) and Anthony Atkinson and Paulston Mairs v R [2016] JMCA Crim 4, as for support of these submissions.

Analysis

14 It is agreed that the learned sentencing judge did not accept that Mr Howell's guilty plea was a true expression of remorse. He dealt with the point on two occasions. At page 19 of the transcript the learned judge assessed the very strong evidence against Mr Howell suggesting that he had no option but to have pleaded guilty. The learned judge then said:

“So one wonders in the fact of that [evidence], how sorry he really could have had [sic] in deciding whether to plea [sic] guilty or not guilty.”

15 At page 20 of the transcript the learned sentencing judge again dealt with issue of remorse. He said:

“…although a plea [of guilty] has been entered, it really does not appear from the reading of the Social Enquiry Report, that there is any genuine remorse. I can't say that there is.”

16 It is clear, however, that there were bases upon which the learned sentencing judge had arrived at that position. The first was the strength of the evidence and second was the fact that the social enquiry report had so indicated.

17 It must first be pointed out that, the general principle is that where an offender pleads guilty, he is entitled to expect some credit for having taken that stance. This was reiterated by Morrison JA (as he then was) in Bertell Myers v R [2013] JMCA Crim 58. The learned judge of appeal said at paragraph [10] of the judgment in that case:

“…There is no want of authority for the proposition that a person who pleads guilty ‘may expect some credit, in the form of a reduction in the sentence which would have been imposed if he had been convicted by the jury on a plea of Not Guilty' (Archbold, Pleading, Evidence and Practice in Criminal Cases, 1992, para. 5—152). Because a guilty plea, particularly at an early stage of the proceedings, invariably results in some public advantage by avoiding the expense and trouble of a trial, the court encourages such pleas where appropriate by offering in exchange a discount on the sentence usually imposed for the particular offence.” (Emphasis supplied)

18 Taking the point a little further, this court, in Meisha Clement v R, opined that a plea of guilty may be treated as an expression of remorse. Morrison P, at paragraph [37] of the judgment in that case, so stated:

“The view that a plea of guilty may be treated as an expression of remorse on the part of the offender has been adopted by this court on more than one occasion. In R v Everald Dunkley [RMCA No 55/2001 (delivered 5 July 2002)], for instance, P Harrison JA characterised the plea of guilty as ‘an indication of repentance and a resignation to the treatment of the court’. And, most recently, in Kurt Taylor v R [ [2016] JMCA Crim 23], F Williams JA reiterated that ‘the authorities have observed that a plea of guilty in and of itself may very well be regarded as an indication of remorse’.”

19 Similarly, in Christopher Brown v R [2014] JMCA Crim 5, the judgment, at paragraph [13], cited an authority from Barbados on the point:

“The aim of imprisonment in the concept of prevention involves ensuring that the offender does not re-offend. In considering the element of prevention, the court must take into account the fact that the offender has pleaded guilty. That plea, by itself may be indicative of remorse. Sir Denys Williams CJ, in delivering the judgment of the Court of Appeal of Barbados, commented on this aspect in Keith Smith v R (1992) 42 WIR 33. He said at pages 35—36:

‘It is accepted that a plea of ‘Guilty’ may properly be treated as a mitigating factor in sentencing as an indication that the offender feels remorse for what he has done. It is also clear...