Miguel Moss v R
| Jurisdiction | Jamaica |
| Judge | Foster-Pusey JA |
| Judgment Date | 11 February 2022 |
| Neutral Citation | JM 2022 CA 17 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 46/2017 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 10
IN THE COURT OF APPEAL
THE HON Miss Justice Straw JA
THE HON Mrs Justice Foster-Pusey JA
THE HON Mr Justice Brown JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 46/2017
Miss Melrose Reid for the appellant
Mrs Christine Johnson Spence and Janek Forbes for the Crown
The appellant was arrested and charged on an indictment for the offences of burglary and larceny, rape, grievous sexual assault and robbery with aggravation. On 21 November 2016, he pleaded guilty to the charges of rape and grievous sexual assault before D Palmer J (‘the sentencing judge’), in the Home Circuit Court in Kingston. The prosecution offered no evidence in respect of other two charges.
On 6 April 2017, the appellant was sentenced to serve 15 years' imprisonment at hard labour for rape and grievous sexual assault. The sentencing judge clearly believed that those sentences were the mandatory minimum which had to be imposed, but made it clear that if he had not believed himself to be so bound, he would have imposed a sentence of six or seven years. Relying on section 42K of the Criminal Justice (Administration) (Amendment) Act (‘the Act’), to which counsel sitting in court (but not involved in the matter) had referred him when he asked for assistance, he issued an oral certificate that the sentence of 15 years' imprisonment was manifestly unjust.
The appellant sought permission to appeal on the grounds that the sentences imposed were harsh and excessive, and the sentencing judge “did not temper justice with mercy” as his guilty plea was not taken into consideration. On 12 April 2021, a single judge of this court granted the appellant leave to appeal on the strength of the sentencing judge's “oral certificate”.
We heard this appeal on 7 December 2021. After hearing the submissions of counsel, we made the following orders:
“(1) The appeal against sentence is allowed.
(2) The sentences imposed by the learned sentencing judge are set aside and sentences of nine years and seven months for the offences of rape and grievous sexual assault are substituted therefor; however, in giving credit for the time of four months spent in custody before sentence, the appellant is to serve nine years and three months' imprisonment at hard labour. The appellant is to serve six years and two months before becoming eligible for parole.
(3) The sentences are to be reckoned as having commenced on 6 April 2017, the date the appellant was originally sentenced.”
We promised to provide brief reasons for our decision and now do so.
On 11 January 2015, at about 2:00 am, the complainant was sleeping at her home in the parish of Saint Catherine. On awakening to fetch her cell phone to make a call to a friend, she heard a loud sound coming from her back door which was then kicked open. Two men entered her home, ransacked it and demanded money. The men took her outside and forced her to kneel under a tree. One of them pointed a gun at her head and demanded to know “where the money was”. However, worse was to come.
One man had sexual intercourse with her at first and the other forced her to perform oral sex. She began choking and vomiting and the other man then also had sexual intercourse with her. The men then left.
The complainant was assisted by the police to the police station and was also taken to the May Pen Hospital for examination. While she was at the Old Harbour Police Station, a man, later identified as the appellant, was brought in. The complainant pointed him out as one of the persons who had raped her. Under caution, the appellant stated, “Officer, a noh mi alone, a me an Jerome. Wi split di ting after we mash di works”.
DNA analysis was conducted on a pair of shorts taken from the appellant. The analysis showed that the sperm and spermatozoa found in the complainant's vagina matched the sample taken from the appellant's shorts.
Counsel for the appellant, Miss Melrose Reid, sought leave to abandon the original grounds of appeal and to, instead, argue the following:
“1. Both Crown Counsel and Defence Counsel failed to assist the LSJ in the law, resulting in the LSJ imposing a sentence under the incorrect section of the Law.
2. The LSJ erred in law in believing that he had to impose the statutory minimum sentence of 15 years; — the Accused having taken a plea of guilty and further at the first relevant date.
3. The LSJ failed to specify a period before becoming eligible for parole in accordance with the law.
4. The LSJ erred in his application of Section 42K of the Criminal Justice Administration (Amendment) Act.
5. That the LSJ failed to apply the principles of sentencing in imposing the sentence of 15 years (albeit he ‘issued’ a certificate).” (Emphasis as in original)
We granted permission for counsel to abandon the grounds originally filed, and to pursue the grounds of appeal outlined at sub-paragraphs (2) – (5) above. Counsel for the appellant, after some discussion, acknowledged that the proposed ground 1 would not qualify as a ground of appeal and so did not pursue it. Counsel, however, asked the court to address the issue.
Miss Reid, on behalf of the appellant, referred to and relied on sections 42D and 42H of the Act. Counsel submitted that these provisions empowered the sentencing judge to impose lesser sentences than the prescribed minimum penalties outlined in the Sexual Offences Act (‘SOA’) for the offences of rape and grievous sexual assault, and this could be done without the judge issuing a certificate. Counsel further submitted that section 42K of the Act, on which the sentencing judge relied when he issued an oral certificate, applied when a defendant was tried and convicted, and not when a defendant pleaded guilty. Counsel argued that, due to the sentencing judge's reliance on section 42K of the Act, he failed to apply the principles of sentencing generally, and in addition, did not take into account the time the appellant had spent in custody.
Counsel submitted that the sentencing judge had also failed to comply with section 42(D)(3)(b) of the Act, as he had not specified the period which the appellant should serve before he would be eligible for parole. Counsel relied on a number of cases including R v Kenneth Ball [1951] 35 Cr App R 164, Meisha Clement v R [2016] JMCA Crim 16 and Callachand and another v The State [2008] UKPC 49 in support of her submissions. She agreed with the sentences, which Crown Counsel recommended to the court in their written submissions.
Mr Janek Forbes, in making submissions for the Crown, conceded grounds of appeal 2, 3 and 4. He, however, disagreed with the appellant's argument, as outlined in ground 5, that the sentencing judge had failed to take into account the relevant sentencing principles. Counsel submitted that the sentences which the sentencing judge had imposed ought to be set aside, and instead sentences of nine years and three months' imprisonment imposed for each offence with the appellant being eligible for parole after serving six years' imprisonment. He referred to Horace Gordon v R [2020] JMCA Crim 2, in which the appellant pleaded guilty to the offence of having sexual intercourse with a person under the age of 16 years and successfully challenged the sentence of eight years and nine months which was imposed by the sentencing judge.
While in its written submissions the Crown had asked that a suspended sentence imposed on the appellant in respect of a separate offence arising out of different circumstances be activated, counsel abandoned this submission in his oral arguments.
It is important to outline in a little more detail, the remarks made by the judge during sentencing. The sentencing judge stated that the particulars of the offences outlined to the court were very disturbing. He noted that the complainant was made to gag, and certain acts performed on her. He stated that the appellant was 17 years old, was being influenced and acted along with an adult, was otherwise of good character, had no previous conviction and had spent some time in custody as a result of the offences.
The sentencing judge also noted that, by virtue of the appellant's early plea, there would usually be an automatic discount in any sentence the court would consider. He, however, went on to state at pages 59 – 60 of the transcript:
“However, there are no mandatory guidelines in relation to sentence of this type, both Rape and Grievous Sexual Assault. That carries with it a mandatory period of imprisonment of 15 years imprisonment. However, the Court may, where it deems it suitable, and I believe this is one of those instances where it is suitable, to direct that a certificate be prepared.”
The sentencing judge indicated that, but for what he believed to be the mandatory sentence, he would have been prepared to give the appellant a sentence closer to six or seven years in light of the appellant's age, the fact that he was influenced by an adult, and he did not waste the court's time “from day one”.
In the course of the sentencing exercise, the sentencing judge asked for assistance. Counsel seated in court, though not appearing in the matter, in a bid to assist the sentencing judge, referred him to section 42K of the Act. The sentencing judge relied on that section of the Act as well as section 42A(1) and ultimately sentenced the appellant to 15 years' imprisonment for each offence. He orally certified that he considered that the prescribed minimum penalty of 15 years was manifestly excessive.
Grounds 2, 3, 4 and 5 were interlinked and, consequently,...
To continue reading
Request your trial