Paul Brown v R

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 08 February 2019
• Neutral Citation: JM 2019 CA 7
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 8/2014
• Date: 08 February 2019

Paul Brown

and

R

BEFORE:

THE HON Miss Justice Phillips JA

THE HON Mr Justice F Williams JA

THE HON Miss Justice Edwards JA

SUPREME COURT CRIMINAL APPEAL NO 8/2014

IN THE COURT OF APPEAL

Linton Gordon and Obiko Gordon for the applicant

Miss Patrice Hickson for the Crown

F Williams JA

Background

1 This is a renewed application for leave to appeal against sentence only. The application for leave to appeal against both conviction and sentence was refused by the single judge on 14 December 2014. The applicant was convicted of the offence of murder on 8 November 2013 and, on 14 November 2013, sentenced to life imprisonment with a stipulation that he serve 35 years' imprisonment before becoming eligible for parole.

Summary of the Crown's case

2 The Crown's case, shortly stated, was to the effect that, on 25 December 2006, around 4:00 o'clock in the afternoon, the applicant opened gunfire at one Linval Murray who ran but was chased by the applicant who continued to fire shots at him, resulting in Mr Murray's death from gunshot wounds. Evidence was given by an eyewitness, a brother of the deceased.

3 The issues on which the jury had to deliberate were those of identification and credibility. The guilty verdict was unanimous.

4 Before us, Mr Linton Gordon, on behalf of the applicant, candidly conceded that, having combed through the transcript, there was nothing that he could usefully advance on the applicant's behalf in relation to the conviction, the learned judge's summation having sufficiently and fairly addressed the central issues. Having perused the transcript ourselves, we find that the concession was quite properly made.

The challenge to the sentence

5 The main submission and ground argued on the applicant's behalf was that the sentence is manifestly excessive. Mr Gordon sought to emphasize that the applicant, who was 43 years old at the time of the commission of the offence and 49 years old at the time of sentencing, (having been born on 28 November 1963), had had, up to then, an unblemished record, with no previous convictions and was gainfully employed.

6 Not enough consideration had been given, he submitted, to the sentencing object of rehabilitation.

7 In an attempt at illustrating the correctness of his submission that the sentence is manifestly excessive and outside the normal range, Mr Gordon provided a summary of cases in which murder convicts were sentenced to various periods of imprisonment. Those cases indicate as follows:

Name of Case	Summary of Facts	Sentence imposed
1. Massinissa Adams et al v R [2013] JMCA Crim 59	The appellant was convicted of the murder of an assistant commissioner of police.	Life imprisonment -30 years before eligibility for parole.
2. David Russell v R [2013] JMCA Crim 42	The appellant was convicted of two counts of murder.	Count 1: 30 years’ imprisonment at hard labour. Count 2: Life imprisonment- 40 years before eligibility for parole
3. Patrick Taylor v Regina (unreported) Court of Appeal, Jamaica, Supreme Court Criminal Appeal No 85/1994, judgment delivered 24 October 2008	The appellant was convicted for four counts of non-capital murder. Death sentence commuted.	Life imprisonment – 35 years before eligibility for parole
4. Alton Health, Desmond Kennedy, Marlon Duncan and Chadrick Gordon v R [2012] JMCA Crim 61	The accused men were convicted of two counts of murder in furtherance of abduction or rape or indecent assault.	Life imprisonment – 35 years before eligibility for parole; and for the alleged ringleader (Chadrick Gordon) re-sentenced some time after – 27 years before eligibility for parole.
5. Jeffrey Perry v R [2012] JMCA Crim 17	The appellant was convicted of three counts of murder of children. Death sentence commuted.	Life imprisonment – 45 years before eligibility for parole.
6. Ian Gordon v R [2012] JMCA Crim 11	The appellant was convicted of two counts of murder. Death sentence commuted.	Life imprisonment – 30 years before eligibility for parole.
7. Calvin Powell and Lennox Swaby v R [2013] JMCA Crim 28	The appellants were convicted of two counts of murder.	Count 1: life imprisonment. Count 2: life imprisonment – 35 years before eligibility for parole.
8. Roderick Fisher v R (unreported), Court of Appeal, Jamaica, Supreme Court Criminal Appeal- No 49/2006, judgment delivered 21 November 2008	The appellant was convicted of three counts of murder. Death sentence commuted.	Life imprisonment – 40 years before eligibility for parole.
9. Jason Palmer v R [2018] JMCA Crim 6	The applicant was convicted of one count of murder.	Life imprisonment–25 years before eligibility for parole (reduced on appeal from 30 before eligibility for parole).

8 These cases show a range of sentencing of between 45 years' and 25 years' imprisonment before eligibility for parole, with the higher figures in the range being stipulated in cases involving multiple counts of murder.

9 Counsel's ultimate submission was that the range that the learned trial judge should properly have considered was between 20 and 25 years' imprisonment before eligibility for parole; and that he should have given credit for the four years or so that the applicant had spent in pre-trial custody.

The Crown's position

10 On behalf of the Crown, Miss Hickson indicated that she could see no basis on which to oppose the application; and that she would leave the ultimate sentence to the discretion of the panel (that is, if the court were minded to grant the application and allow the appeal).

Discussion

11 A reading of the sentencing remarks discloses that not much was said to reflect the court's thinking in arriving at the sentence and the stipulated period of imprisonment before consideration of the applicant's eligibility for parole. The focus of such things as were said in the summation was on the brazen nature of the murder.

12 Whilst we entertain no difficulty with the imposition of the sentence of life imprisonment (neither was any submission advanced to challenge it), we have a concern about the period stipulated to be served before eligibility for parole, which we will now explore.

The time spent on pre-trial remand

13 At pages 113 to 114 of the transcript is recorded a somewhat-lengthy discussion between the court and defence counsel concerning the time that the applicant spent in custody before the commencement of the trial. The following is what was recorded:

“…I ask, m'Lord, that Mr. Brown, who has actually been in custody on this particular case since 2009.

HIS LORDSHIP: Since when?

MRS. ATKINSON-FLOWERS: In 2009?

HIS LORDSHIP: When in 2009?

MRS. ATKINSON-FLOWERS: M'Lord, the matter was

committed to —initially he was in custody from the 8 ^th of October, 2007, and he was offered bail, which he took up, on the 25 ^th of March, 2009, that bail was revoked on 5 ^th of October, 2009, when the matter ended.

Apparently.

HIS LORDSHIP: So from the time he said he was offered bail on the 8 ^th of October '07?

MRS. ATKINSON-FLOWERS: And did take up said bail 2009, and when the preliminary enquiry ended, the bail was revoked and he was committed to circuit.

HIS LORDSHIP: In custody?

MRS. ATKINSON-FLOWERS: Yes, m'Lord.

HIS LORDSHIP: So that was from the 25 ^th of March '09?

MRS. ATKINSON-FLOWERS: No, m'Lord, that is when he actually took up the bail that was offered.

HIS LORDSHIP: Oh, I see.

MRS. ATKINSON-FLOWERS: So, we ask and we know that the honourable court will take that into consideration.

HIS LORDSHIP: But what I am interested to find out, how long has he been —has he been in custody since '09?

MRS. ATKINSON-FLOWERS: Yes, m'Lord.

HIS LORDSHIP: And from which date that is?

MRS. ATKINSON-FLOWERS: On or about October, in October, 2009, m'Lord.

HIS LORDSHIP: Yes.”

14 In Meisha Clement v R [2016] JMCA Crim 26, Morrison P, at paragraph [56], made the following observation in relation to a sentencing court's duty in considering time spent in...