Michael Evans v R

• Jurisdiction: Jamaica
• Judge: Mcdonald-Bishop JA
• Judgment Date: 18 December 2015
• Neutral Citation: [2015] JMCA Crim 33
• Date: 18 December 2015
• Court: Court of Appeal (Jamaica)

Bewteen

Michael Evans

and

R

[2015] JMCA Crim 33

The Hon Mr Justice Morrison P (Ag)

The Hon Miss Justice Phillips Ja

The Hon Mrs Justice Mcdonald-Bishop Ja

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CRIMINAL APPEAL NO 37/2013

Mcdonald-Bishop JA

1 This is an application for leave to appeal against sentence. On 13 March 2013 the applicant, Mr Michael Evans, appeared before Pusey J, sitting alone in the High Court Division of the Gun Court in Kingston. The applicant was charged on an indictment containing two counts. The first count charged him with the offence of illegal possession of firearm and the second count charged him with the offence of robbery with aggravation. The applicant pleaded guilty to both offences and on 20 March 2013, he was sentenced to 10 years and 15 years imprisonment at hard labour, respectively.The sentences were ordered to run concurrently with each other as well as with sentences he was serving at the time for two similar offences.

2 The applicant sought leave to appeal against sentence on the following grounds:

‘(1) Unfair Trial : — That the Sentences are harsh and Excessive and cannot be justified when all the circumstances are taken into consideration.

(2) That the Learned Trial Judge did not temper justice with mercy as the Sentences reflect the severity of the sentences.

(c) That the Learned Trial Judge relied on evidence and testimonies which are lacking in the facts and credibility. Thus rendering the verdict unsafe.’

3 The application was considered and refused by a single judge of this court on the basis that the sentences could not be viewed as being manifestly excessive. As a result, the applicant renewed his application before this court. On 25 November 2015, we refused the application for leave to appeal against sentence and ordered that the sentences are to be reckoned as having commenced on 20 March 2013, the date on which they were imposed. These are our reasons for that decision.

The background facts

4 The undisputed facts which gave rise to the plea of guilty, briefly stated, were as follows: On 7 November 2011, at about 7:10 pm, the complainant was sitting at a bus stop located on Marcus Garvey Drive in Kingston when he was approached by the applicant and another man. The applicant pointed a firearm at him and demanded what he had in his possession. In response, the complainant handed over to the applicant hisBlackberry cellular phone, which was valued at about $20,000.00. The applicant and his companion then left the scene. Subsequently, the complainant positively identified the applicant at an identification parade, which eventually led to charges being laid against him for the offences in relation to which he was sentenced that now form the subject of this appeal.

Grounds of appeal

5 Mr Harrison QC, who appeared for the applicant in renewing his application before this court, sought and was granted leave to abandon ground (c) of the original grounds (paragraph [2] above) on the basis that that ground was, in effect, an appeal against conviction, which the applicant was not pursuing. Leave was also granted to the applicant to pursue and argue a single supplemental ground of appeal which, essentially, encompasses the original grounds ( 1) and (2). The relevant ground of appeal reads:

‘The sentence imposed by the learned sentencing judge in relation to both offences, with which the applicant was charged, was manifestly excessive.’

Submissions

6 Mr Harrison, in advancing the ground of appeal, maintained that the sentences were manifestly excessive because the learned judge had failed to take into account and/or to properly treat with several matters that have caused him to err, in principle, in sentencing the applicant. The complaints of the applicant with respect to these matters are conveniently divided into four sub-issues as follows:

• (i) failure of the learned judge to procure a social enquiry report to assist in the determination of the appropriate sentences;

• (ii) failure of the learned judge to accord any discount in the sentences for the guilty pleas;

• (iii) failure of the learned judge to pay regard to the possibility of the applicant's rehabilitation;

• (iv) failure of the learned judge to take into account a mitigating factor that should have weighed in the applicant's favour.

Each sub-issue will now be examined, in turn.

Discussion

(i) failure of the learned judge to procure a social enquiry report to assist in the determination of the appropriate sentences

7 Mr Harrison noted that after the applicant had pleaded guilty to the offences, his counsel, at the time, appeared to have ‘presumed’ that sentencing would have proceeded with a social enquiry report. The learned judge, however, did not seek to obtain a social enquiry report, which may have been helpful to him in sentencing the applicant. According to learned Queen's Counsel, the information usually derived from the antecedent report is of limited assistance to a trial judge engaged in the sentencing process as it is usually ‘bare and sketchy’ and so a social enquiry report would be more helpful. He argued that in the special circumstances of the applicant's case (‘tending to suggest incipient recidivism’), the more ‘detailed, and searching, material’ usually presented in the typical social enquiry report would have been warranted. Therefore, to do justice in sentencing the applicant, he argued, the learned judge should haveavailed himself of the social enquiry report that defence counsel, ‘seemingly, envisaged would have been obtained’.

8 In considering this point raised by learned Queen's Counsel, it is observed that there is nothing in the record of the proceedings which indicates that there was a definitive application made by defence counsel for a social enquiry report. So, it cannot be said that the learned judge had denied an application for a social enquiry report to be obtained. Evidently, the learned judge had formed the view that a social enquiry report was unnecessary and that he could have sentenced the applicant with the aid of the antecedent report only.

9 We do recognize the utility of social enquiry reports in sentencing and cannot downplay their importance to the process. Indeed, obtaining a social enquiry report before sentencing an offender is accepted as being a good sentencing practice. John Sprack in A Practical Approach to Criminal Procedure, tenth edition, page 395, paragraph 20.33, in his discussion of the provisions of the Powers of Criminal Courts (Sentencing) Act 2000, as they relate to the use of pre-sentencing reports in the UK, noted:

‘Even if there is no statutory requirement to have a [social enquiry] report, the court may well regard it as good sentencing practice to have one, particularly if it is firmly requested by the defence. Nevertheless, even where the obtaining of a pre-sentence report is “mandatory”, the court's failure to obtain one will not of itself invalidate the sentence. If the case is appealed, however, the appellate court must obtain and consider a pre-sentence report unless that is thought to be unnecessary.’

10 Mr Harrison, in making his submissions, has not argued that it was mandatory for the learned judge to obtain a social enquiry report in the circumstances of this case and neither did he say that there was a firm request from defence counsel for one to have been obtained. Of course, we do accept that the learned judge, even in the absence of any mandatory requirement or a request from defence counsel, could have requested one on his own volition and in his own discretion. The question for this court, therefore, is whether the learned judge erred, in principle, when he failed to obtain a social enquiry report in the circumstances of this case, thereby rendering the sentences he imposed on the applicant manifestly excessive.

11 We have observed that although Mr Harrison had contended that a social report was necessary to do greater justice to the applicant, he had not, in the end, pointed to anything pertaining to the circumstances of the applicant that could persuade this court to the view that a social enquiry report could have...