Oneil Murray v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 09 May 2014
• Neutral Citation: JM 2014 CA 53
• Docket Number: CRIMINAL APPEAL NO 69/2010
• Court: Court of Appeal (Jamaica)
• Date: 09 May 2014

Oneil Murray

and

R

[2014] JMCA Crim 25

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Miss Justice Mangatal JA (Ag)

CRIMINAL APPEAL NO 69/2010

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

CRIMINAL LAW - Rape - Illegal possession of firearm - Plea of guilty - Leave to appeal - Whether sentence manifestly excessive

Leroy Equiano for the applicant

Mrs Kamar Henry-Anderson and Miss Patrice Hickson for the Crown

Morrison JA

1 This is an application for leave to appeal against the sentences imposed on the applicant by Sinclair-Haynes J sitting in the Western Regional Gun Court on 20 May 2010. The single issue which arises on the application is whether the sentences imposed by the learned trial judge were manifestly excessive in the circumstances, particularly having regard to the applicant's plea of guilty.

2 On 5 May 2010, the applicant was brought before the court on two indictments (nos 197200/2009 and 84–87/2010), arising out of two separate incidents, less than a month apart. The prosecution's case was that (i) on 19 March 2009, the applicant, armed with a gun, abducted and raped a 12 year old schoolgirl (“the first incident”); and (ii) on 14 April 2009, the applicant, again armed with a gun, abducted and raped a young woman of 22 years (“the second incident”). When pleaded on each of these indictments, the applicant pleaded guilty to the counts relating to illegal possession of firearm and rape.

3 On 20 May 2010, the applicant was sentenced to five and 23 years' imprisonment respectively for illegal possession and rape in respect of the first incident; and five and 19 years' imprisonment respectively for illegal possession of firearm and rape in respect of the second incident. The learned judge ordered that in each case the sentences should run concurrently.

4 On 15 July 2013, a single judge of this court refused the applicant's application for leave to appeal against these sentences, which were ordered to commence on 20 May 2010. This is therefore the applicant's renewed application for leave to appeal against the sentences. Before coming to the grounds of this application, it is necessary to say something of the facts of each incident, as outlined to the court by counsel for the prosecution.

5 In the first incident, the complainant, who was awaiting a ride to go to school at 7:00 in the morning, got into the applicant's car, supposing it to be a taxi. At a point, after the applicant had driven off, with her being the only passenger on board, the complainant realised that they were not travelling in the direction of her school. When she asked the applicant why this was so, his reply was, ‘Ah tek wey yuh jus get tek wey.’ The complainant was then taken to an isolated area in Bogue Heights, where the applicant produced a gun from his waist, forcibly removed her clothing and proceeded to have sexual intercourse with her without her consent. When he was finished, the applicant ordered the complainant to put on her clothes and then drove her back into Montego Bay, where he let her off. He left her with the threat that he would kill her if she told anyone what had happened.

6 In the second incident, the complainant boarded a taxi driven by the applicant at Catherine Hall at about 2:30 in the afternoon, aiming to get to downtown, Montego Bay. Instead, the applicant drove her to Fairfield, Irwin. There, after pointing a gun at her and threatening to shoot her, he had sexual intercourse with her against her will. After robbing her of a cellular telephone and a bank card, the appellant drove off.

7 The antecedent report provided to the court showed the applicant to be a man of 32 years, married, with five dependent children and no previous convictions. Perhaps unusually, his wife of five years gave character evidence on his behalf. She described him as a ‘nice person’, both to her and ‘to the people dem in the area’. She testified that she did not know the applicant to be ‘capable of so much things that I hear he have done [sic]’, and asked the court to ‘give him a second chance that he will turn over his life to God, and come back and look after his children’.

8 In passing sentence on the applicant, Sinclair-Haynes J characterised the first incident as not only an ‘egregious violation of a woman's right…[but]…a breach of trust…’. The judge acknowledged that the applicant had pleaded guilty, thus entitling him to ‘the necessary deductions’. She also referred to the fact that he had no previous convictions, that he was gainfully employed at the time of the offences and a source of support to his children, and that ‘his wife speaks well of him’. Nevertheless, taking into account the factors of rehabilitation, deterrence and punishment, the judge considered that, ‘…in balancing, when the necessary deductions are made,…the appropriate sentence [for rape] must be 23 years at hard labour’.

9 As regards the second incident, the judge observed that although the 22 year old complainant was ‘a little older’, rape is ‘…still an awful offence’. She accordingly considered 19 years' imprisonment (taking into account the year spent in custody by the applicant) to be an appropriate sentence for rape in the case of this complainant.

10 When the matter came on for hearing before us, Mr Leroy Equiano for the applicant was given leave to argue a single ground of appeal; that is, that the judge's sentence was manifestly excessive. In considering the appropriate sentence in a given case, Mr Equiano submitted, the court should have regard to the gravity of the offence and any aggravating factors along with the antecedents of the offender and any mitigating factors in his favour. Further, the court should strive for an appropriate balance between the aggravating and the mitigating factors and the need for public order, taking into account similar sentences previously given for like offences. Principal among the mitigating factors relied on by Mr Equiano in this case is the fact that the applicant pleaded guilty to both indictments.

11 Taking all the relevant factors (some of which he listed) into account, Mr Equiano submitted that the appropriate sentencing ranges for illegal possession of firearm and rape, following on from a plea of guilty, were periods of imprisonment of five to six and seven to 15 years respectively. In these circumstances, it was submitted that, while no complaint could be made about the judge's sentences for the firearm offence, a maximum sentence of no more than 15 years would have been appropriate for the offence of rape.

12 At our invitation, both Mr Equiano and Miss Patrice Hickson, who appeared for the prosecution, provided us with brief reports of previous sentences for like offences given in the court below and/or approved by this court. We are grateful to counsel for their efforts in this regard.

13 We will deal firstly with a group of cases in which there was no appeal against sentence, but appeals against convictions for rape were dismissed and the sentences imposed in the Supreme Court were by that means implicitly approved.

14 In R v Trevor Clarke (SCCA No 26/1996, judgment delivered 2 June 1997), the appellant was tried and convicted of illegal possession of...