Paul Tomlinson v R
| Jurisdiction | Jamaica |
| Judge | D Fraser JA |
| Judgment Date | 27 February 2023 |
| Neutral Citation | JM 2023 CA 24 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2021CR00007 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Crim 13
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Straw JA
THE HON Mr Justice D Fraser JA
SUPREME COURT CRIMINAL APPEAL NO COA2021CR00007
IN THE COURT OF APPEAL
Miss Tamika Menzie for the applicant
Miss Natalie Malcolm for the Crown
On 15 October 2020, following a trial before Morrison J (‘the learned trial judge’), the applicant, Paul Tomlinson, was convicted in the High Court Division of the Gun Court, at King Street in the parish of Kingston, on an indictment that charged him with the offences of illegal possession of firearm (count 1) and wounding with intent (count 2). On 28 January 2021, he was sentenced to a term of 10 years' imprisonment at hard labour on count 1 and 15 years' imprisonment at hard labour on count 2.
On 19 April 2022, a single judge of this court refused the applicant leave to appeal his convictions and sentences. As is his right, he renewed his application before the court. The cases advanced at trial by the prosecution and the defence will now be outlined to provide the context for the grounds of appeal filed and the submissions made by counsel on each side.
The case for the prosecution is that sometime after 9:45 pm on 1 July 2019, the complainant, Jeremiah Bailey, was sitting in his car outside his yard in the parish of Kingston, when a grey car being driven by “Mad Head” also called “Dwayne” drove up beside the complainant's car. The area was well-lit by street lights. The right-back window of the grey car was rolled down, through which the complainant saw the applicant, known to the complainant as “John Boops” or “Johnny Boops” from his same community for over 25 years. The complainant saw the unobstructed face of the applicant. His evidence was that “[i]t don't take a minute to see him, because when mi look pon him when the car stop and me see him, me see him good good”. The complainant also saw another man known to him as “Yankey”, sitting in the back of the car.
After the window was rolled down, the complainant saw “a gun come up” and the applicant shot the complainant twice — once in his eyebrow, with that shot exiting through his ear and secondly in his right shoulder. The grey car then sped off. Under cross-examination, the complainant denied suggestions that he was telling lies on the applicant because he wanted the applicant, “Mad Head” and “Yankey” off the road as they were competing for drug turf.
The applicant gave sworn evidence in which he acknowledged knowing the complainant and “Mad Head”. He, however, raised an alibi, maintaining that he was at home making slippers at the time of the incident and that he heard about it the following day. He also stated that both the complainant and “Mad Head” had competing drug operations “beside each other”.
Counsel for the applicant did not seek to challenge the convictions of the applicant. She was granted leave by the court to abandon the initial five grounds of appeal and to pursue two supplemental grounds filed 1 December 2022, challenging the sentences of the applicant. These are, ground 1: “The Learned Trial Judge failed to take into consideration the time spent on remand awaiting trial” and ground 2: “The sentence imposed is manifestly excessive”. Given the nature of the submissions advanced on each ground and the manner in which they were responded to, it will be convenient to treat with them together.
The central complaint raised in respect of both grounds, was that the learned trial judge failed, in keeping with settled principles, to give the applicant full credit for the one year, six months and 14 days he spent in pre-sentence custody. Counsel relied on the well known cases of Callachand & Anor v The State of Mauritius [2009] 4 LRC 777; Romeo Da Costa Hall v The Queen [2011] CCJ 6 (AJ); Meisha Clement v R [2016] JMCA Crim 26 and Daniel Roulston v R [2018] JMCA Crim 20.
Counsel for the Crown submitted that having regard to statutory requirements and the Sentencing Guidelines for use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017, the sentences imposed on both counts were well within the range of sentences usually imposed for such offences and were not manifestly excessive. However, counsel also observed that the learned trial judge had not followed the formulaic approach recommended in cases such as Meisha Clement v R and Daniel Roulston v R and had not specifically credited the applicant with the time he spent in pre-sentence custody. Consequently, in accordance with settled law as outlined in Callachand & Anor v The State of Mauritius, counsel advanced that in respect of count 1, the court should credit the applicant with the time spent in custody and resentence him to a period of imprisonment for eight years and six months.
Conversely, in relation to count 2, counsel argued that the mandatory minimum sentence having been imposed, the failure of the learned trial judge to credit the applicant for the time he spent in custody, did not warrant the intervention of the court based on the peculiar facts of this case. In particular, the significant aggravating features of this case would not justify the sentence of the applicant being reduced below the statutory minimum. In support of her submissions, counsel relied on the Judicature (Appellate Jurisdiction) Act (‘JAJA’), the Criminal Justice Administration Act (‘CJAA’) and the cases of Paul Haughton v R [2019] JMCA Crim 29; Kerone Morrison v R [2021] JMCA Crim 10 and Lennox Golding v R [2022] JMCA Crim 34.
As submitted by counsel, it is now settled law that a defendant being...
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