Meisha Clement v R

JurisdictionJamaica
JudgeMorrison P,MR
Judgment Date22 July 2016
Neutral CitationJM 2016 CA 78
Docket NumberSUPREME COURT CRIMINAL APPEAL NO 18/2015
CourtCourt of Appeal (Jamaica)
Date22 July 2016
Between
Meisha Clement
and
R

[2016] JMCA Crim 26

Before:

The Hon Mr Justice Morrison P

The Hon Mrs Justice Mcdonald-Bishop JA

The Hon Miss Justice P Williams JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 18/2015

JAMAICA

IN THE COURT OF APPEAL

Cecil J Mitchell for the applicant

Mrs Natalie Ebanks-Miller for the Crown

Morrison P
Introduction
1

This is a renewed application for leave to appeal against conviction and sentence for the offence of possession of access devices, contrary to section 8(2) of the Law Reform (Fraudulent Transactions) (Special Provisions) Act (the Act). The application was initially considered on paper, and refused, by a single judge of the court (the single judge) on 7 September 2015. The applicant, as she is entitled to do, has now renewed the application before the court itself.

2

The Act came into force on 28 March 2013. It was passed as an explicit legislative response to a new species of criminality known as “lottery scams”. In the Memorandum of Objects and Reasons to the Bill which preceded the passing of the Act 1, the growth of illegal lottery scams was said to have ‘developed quickly and in a complex manner which has the potential to infiltrate all sectors of the society’. It was therefore thought necessary to initiate ‘effective legislative action to combat the growth of this criminal activity as the law in its present stage has proven to be ineffective in prosecuting offenders’. The Act is therefore relatively new legislation, designed to address what was perceived to be an urgent social need.

3

The amended particulars of the charge for which the applicant was convicted were that, on 24 August 2013, she fraudulently possessed ‘a number of credit/debit cards to use data from these access devices, whether authentic or not, to obtain service from them’.

4

An ‘access device’ is defined in section 2 of the Act as —

‘… any card, plate, code, account-number, electronic serial number, mobile identification number, personal identification number and any other means of access that can be used alone or with another device, to obtain a benefit or other thing of value, or that can be used to initiate a transfer of money.’

5

Section 8(2) of the Act provides that:

‘(2) A person commits an offence where that person fraudulently possesses, uses, trafficks in or permits another person to use any data from an access device (whether or not the data is authentic), that would enable such other person to use the access device or to obtain the services that are provided by the issuer of the access device.’

6

And, under item 6 of the Schedule to the Act, the penalty prescribed for an offence under section 8 is a fine, or imprisonment not exceeding 15 years, or both such fine and imprisonment.

The proceedings in the court below
7

The applicant and another (the co-defendant) were originally charged with two offences under the Act. Count one charged them with possession of identity information, contrary to section 10(1), while count two charged them with possession of access devices, contrary to section 8(2). But when the matter came on for trial before G Fraser J (the judge) in the Circuit Court for the parish of Trelawny on 6 March 2015, the co-defendant pleaded not guilty to both counts and was discharged after the prosecution offered no evidence against him. Upon the applicant's plea of not guilty on count one as well, the prosecution also offered no evidence against her on that count. However, the applicant pleaded guilty on count two and was in due course sentenced to eight years' imprisonment.

8

When the matter was called on before the judge on 6 March 2015, the prosecution was represented by Mrs Melony Domville. Mrs Domville it was who informed the court that the applicant was represented by Mr Peter Champagnie, but that Mr Martyn Thomas, who was present, was holding for him. After the applicant's plea was taken, Mrs Domville outlined the following facts to the court. At about 4:00 pm on 24 August 2013, police officers intercepted a motor cycle on which the applicant was a pillion rider. The applicant agreed to the police officers' request that they be allowed to search her house and, during this search, a bag containing several credit/debit cards, bearing the names of persons residing overseas, was found. When informed by the police officers of the offence of possession of access devices and cautioned, the applicant said, ‘officer, I used to pay taxes of persons, of overseas persons … so that is how I have the credit cards’. The court was told that a report received from the Communications Forensics and Cybercrime Unit (CFCU) of the Jamaica Constabulary Force indicated that the credit/debit cards were valid cards, bearing the names and card numbers of seven persons.

9

Towards the end of Mrs Domville's presentation of the facts, a discussion arose between counsel and the court on the nature and actual number of cards with which the applicant had been found. When counsel for the prosecution sought an amendment to the indictment to clarify these points, the following exchange ensued:

‘MR. M. THOMAS: I crave your indulgence, m'Lady. Before it is amended, can I have a word with my client? Might it please you, m'Lady …

HER LADYSHIP: Yes.

MR. M. THOMAS: M'Lady, and I apologize, though Miss Clement had indicated a certain course and I was here yesterday and I was asked to hold in the matter and I'm here holding in the matter and she has given me certain instructions. The prosecution had outlined that there were a certain number of credit/debit cards found. Having had further discussions with my friend and having looked at a report from the CFCU, we — I believe we can agree that eight of those cards were such cards.

HER LADYSHIP: No, Mr. Thomas, I was just asking if it's

MasterCard, credit card or a number of them, because count two says …

MISS DOMVILLE: I was asking for it to be amended, ma'am, to reflect what the CFCU indicates, credit/debit cards, ma'am.

MR. M. THOMAS: But, m'Lady, outside of that, my instructions are becoming a little bit more unclearer [sic] as we go along. M'Lady, I …

HER LADYSHIP: Mr. Thomas …

MR. M. THOMAS: Yes, m'Lady.

HER LADYSHIP: … instructions caan (sic) change. You get them, they are written and they are signed to, finis That is instructions, yes? Miss Clement, I don't have the time for this. Miss Clement, don't yank my chain. Is either you have the things or you don't have the things.

ACCUSED: No, ma'am, I'm not yanking your chain. I was just going off of what he is telling me.

HER LADYSHIP: My enquiry was in relation to what is the device the Crown is speaking of. Is it that there was a particular device or it's the credit card document, because it's a document itself. Isn't that what the count is about?

MISS DOMVILLE: Yes, m'Lady.

MR. M. THOMAS: Yes, m'Lady

HER LADYSHIP: So, what is your position, Miss

Clement?

ACCUSED: Guilty

HER LADYSHIP: Sorry?

ACCUSED: Guilty.

MR. M. THOMAS: Very well, m'Lady

HER LADYSHIP: Yes, madam Prosecutor. So, it should read what, a number of?

MISS DOMVILLE: Possessed a number of credit/debit cards, m'Lady.

HER LADYSHIP: So, the words “a MasterCard credit' to be deleted?

MISS DOMVILLE: To be deleted ma'am, and inserted [sic] “a number of credit/debit cards'.

HER LADYSHIP: Yes.

MISS DOMVILLE: I also ask for it to be form a part of the facts, m'Lady, the CFCU report.

HER LADYSHIP: Well, you have amended it.

You have any objections to the amendment, Mr …

MR

M. THOMAS: No, m'Lady.

HER LADYSHIP: Let her be repleaded on the amended

count.

REGISTRAR: Miss Meisha Clement, you are charged,

ma'am for the offence of Possession of Access Device. The particulars of this offence, ma'am, are that you, Meisha Clement, on the 24th day of August, 2013, in the parish of Trelawny, did fraudulently possess a number of credit/debit cards to use data from these access devices, whether authentic or not, to obtain services from them. How say you, are you guilty or not guilty?

ACCUSED: Guilty.’

10

Upon an indication from the judge that she would prefer to have sight of a social enquiry report and some further information about the applicant's antecedents before proceeding to the issue of sentence, the matter was adjourned to 20 March 2015. On that date, the social enquiry report and the applicant's antecedents were made available to the court. This material revealed that the applicant was born at the Falmouth Hospital on 1 April 1983 and migrated to the United States of America when she was six years of age. She was educated, allegedly up to the level of a bachelor's degree in business administration and worked in that country for a few years before returning home. Upon her return to Jamaica, she operated a clothing store in Montego Bay for about two years and, after giving it up, she continued to sell clothing, presumably on her own account. This is the business in which she was engaged at the time of her arrest. At the time of sentencing, she was a married person and the mother of two dependent children aged eight and nine years. The applicant had five previous convictions recorded against her name. But it appears that four of them, in respect of which she was given non-custodial sentences, arose out of the same incident, in which she was charged with separate counts of possession of and uttering forged documents as a result of a failed attempt to obtain a passport by false means. The fifth related to a breach of the Corrections Act, for which she was put on probation for 12 months.

11

The applicant's social enquiry report was essentially negative. The probation aftercare officer's conclusion was as follows:

‘The thirty-two year old offender, Ms. Meisha Clement is before the court for the offence of Possession of Access Device (s). She seemingly has had several run-ins with the law from 2012...

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    ...there were no established sentencing guidelines, and the learned judge did not have the benefit of the decision in Meisha Clement v R [2016] JMCA Crim 26. He conceded that he was unable to say what starting point was adopted by the learned judge in arriving at the sentence of 15 years. Howe......
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