Percival Campbell v R

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 10 October 2013
• Neutral Citation: JM 2013 CA 108
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 35/2010
• Court: Court of Appeal (Jamaica)
• Date: 10 October 2013

Percival Campbell

and

R

[2013] JMCA Crim 48

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 35/2010

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Rape - Whether sentence excessive - Whether judge ridiculed antecedents of the appellant

Linton Gordon and Miss Tamiko Smith for the appellant

Mrs Karen Seymour-Johnson for the Crown

Morrison JA

1 On 25 September 2013, the court announced that the appeal against sentence in this matter would be allowed and the sentence of 21 years' imprisonment imposed by the learned trial judge set aside. In its stead, the court substituted a sentence of 18 years' imprisonment at hard labour and stipulated that it should commence from 26 February 2010. These are the reasons for this decision.

2 On 11 February 2010, the appellant was convicted after a trial before DO McIntosh J and a jury of the offence of rape. On 26 February 2010, the learned trial judge sentenced him to imprisonment at hard labour for a period of 21 years.

3 On 16 June 2011, the appellant having applied for leave to appeal against his conviction and sentence, a single judge of this court refused the application in respect of the conviction, but granted it in respect of the sentence imposed by the learned trial judge.

4 On 13 January 2013, pursuant to the leave thus granted, the appellant filed supplemental grounds of appeal in the following terms:

‘1. That the sentence of imprisonment at hard labour for twenty one (21) years imposed on the appellant by the Learned Trial Judge is excessive given all the circumstance [sic] of the case and should therefore be reduced.

2. That the circumstances under which the offence was committed and the conduct of the Defendant in committing the offence do not justify a period of twenty-one (21) years imprisonment of [sic] hard labour, that the period of twenty-one (21) years is in excess of the usual sentence given for a Rape in these circumstances and should be reduced.

3. That the Learned Trial Judge fell into error and imposed an excessive sentence when he went on to ridicule the antecedents of the Appellant when he should have used it to guide and assist him in arriving at an appropriate sentence given the circumstances of this case.’

5 This is therefore an appeal against sentence only. Before turning to Mr Gordon's submissions in support of these grounds, it is first necessary to outline briefly the circumstances of the case. On 27 July 2007, which is the date on which the offence was committed, the appellant was 47 years of age. The complainant, who was then 11 years of age, was the granddaughter of the appellant's wife. On the day in question, the complainant, who was told by the appellant that her grandmother was calling her, went to the house at which the appellant and her grandmother lived. When she got there, the complainant was dragged by her blouse by the appellant into the house and, in answer to her question, was told by him that her grandmother was not home. Once inside the house, the appellant pushed her to the floor in the back room of the house and there had sexual intercourse with her without her consent. While he was in the act, she told him to leave her alone and bit him, to which he responded by hitting her on the head. When he was done, the appellant gave the complainant a $500.00 bill and, after telling her that she ‘must be his little girlfriend’, sent her away. On her way home, the complainant tore up the $500.00 bill into pieces. Some two weeks later, the complainant made a report to her mother and in due course the appellant was arrested and charged with rape.

6 The appellant now makes no complaint about the verdict of guilt, at which the jury arrived after retiring for just over 10 minutes. The report on the appellant's antecedents revealed that he had two previous convictions, the first for shop breaking and larceny in 1989 and the second for larceny of a cow in 2006. In mitigation, the appellant's counsel offered the appellant's age (49 years at the date of trial); that he had been married to the same woman for 17 years; that they had two young children in high school; that he was responsible financially for his family, including his 71 year old mother; and that he was recognised by members of his community as ‘not being a troublemaker and…[was] a hard worker and a jovial person’. Counsel also pointed out that his two previous convictions were for offences dissimilar to the one for which he had been found guilty in the instant case and asked that they not be taken into consideration.

7 In pronouncing sentence on the appellant, the learned trial judge said this:

‘Now sir, your attorney has said, reading from the antecedents, that you are such a nice, jovial person that the community admires you and reports that you are not a troublemaker and that you are a hard-working person. So, obviously the community does not know that you are a thief because I cannot see that they can be admiring you as a jovial, hard working and no trouble person when you are a thief. But, what is worst [sic] is the offence which you committed to the little child who is your wife's granddaughter and, you know, everybody expects the Court to condone this type of behaviour and to say, “Oh, well, first time being caught, give you a warning; tell you not to do it again.” And then your family and your friends all gather together and support you and condone your behaviour and expect the Court to do likewise. And when we send you to prison, they weep and wail and gnash their teeth because, no doubt, they are supportive of you. I am happy that you are smiling. I am happy that you are smiling because it means that you understand perfectly where I am going. Well, I don't condone your behaviour. The law does not condone your behaviour and the sentence of this Court is that you be imprisoned and kept at hard labour for 21 years.’

8 Before us, Mr Gordon submitted that the sentence of 21 years' imprisonment at hard labour is excessive and out of line with that which is usually imposed upon a conviction for rape in circumstances similar to those in the instant case. He pointed out the absence in this case of any evidence of the use of a weapon or what he described as ‘any wanton act of violence’ and the fact that the complainant had suffered no serious injuries, ‘apart from what might have been associated with the act of penetration’. As regards the remarks of the judge quoted in the foregoing paragraph, Mr Gordon complained that, instead of using the comments favourable to the appellant in the antecedent report as a guide to sentencing him, the judge had ridiculed them, as he had the submission that the offences for which the appellant had been convicted in the past bore no similarity to the offence of rape. And finally, Mr Gordon complained that it does not appear from the transcript of the trial that a Social Enquiry Report had been produced, notwithstanding the fact that defence counsel appeared to have canvassed the possibility of one after the jury had returned its verdict.

9 In support of these submissions, Mr Gordon referred us to a number of cases, the first of which is R v Roberts [1982] 1 All ER 609, a decision of the English Court of Appeal. In that case, Lord Lane CJ said this (at page 610):

‘Rape is always a serious crime. Other than in wholly exceptional...