Peter Dougal v R

• Jurisdiction: Jamaica
• Judge: PANTON P , COOKE JA , HARRISON JA , MORRISON JA , PHILLIPS JA
• Judgment Date: 01 April 2011
• Neutral Citation: JM 2011 CA 23
• Judgment citation (vLex): [2011] 4 JJC 0103
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 135/2007
• Date: 01 April 2011

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON P

THE HON. MR JUSTICE COOKE JA

THE HON. MR JUSTICE HARRISON JA

THE HON. MR JUSTICE MORRISON JA

THE HON. MISS JUSTICE PHILLIPS JA

SUPREME COURT CRIMINAL APPEAL NO 135/2007

PETER DOUGAL

v

R

CRIMINAL LAW - Murder - Death penalty - Whether sentence of death was wrongly imposed and manifestly excessive

PANTON P

1 On 20 December 2010, we allowed the appeal against sentence in this matter and promised to give written reasons for this decision. This we now do. The facts of this case are contained in the judgment written by my learned brother Harrison JA. Consequently, I do not propose to repeat them here. It is sufficient, I think, to say that the appellant murdered the two deceased persons while they slept in their bed at their home in the early morning of 5 June 2005. Norma McIntosh J sentenced him to suffer death in the manner authorized by law. Dr Randolph Williams conceded that there is no ground on which the conviction may be properly challenged, but has argued that the sentence of death was wrongly imposed and is manifestly excessive.

2 Dr Williams submitted that the case of Trimmingham v The Queen [2009] UKPC 25 provides the necessary guidance in respect of a sentence for the offence of murder where the death penalty is an option. Therein, the Privy Council said in paragraph 20:

‘Judges in the Caribbean courts have in the past few years set out the approach which a sentencing judge should follow in a case where the imposition of the death sentence is discretionary. This approach received the approval of the Board in Pipersburgh v The Queen [2008] UKPC 11, and should be regarded as established law.’

3 To see the approach that the Board approved and said should be regarded as established law, one necessarily has to look at the judgment in Pipersburgh. In paragraph [33] thereof, the Privy Council said:

‘The approach to be adopted by a judge when considering whether to impose a death sentence was further discussed in the Eastern Caribbean Court of Appeal by Rawlins JA Ag in Moise v The Queen 15 July 2005. He referred to a number of previous decisions where the proper approach had been discussed and continued, at para 17:

“17. The cases mentioned in the foregoing paragraph establish that the first principle by which a sentencing judge is to be guided in these cases is that there is a presumption in favour of an unqualified right to life. The second consideration is that the death penalty should be imposed only in the most exceptional and extreme cases of murder. At the hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating facts are obvious from the evidence given at the trial. The burden to rebut the presumption then shifts to the Crown. The Crown must negative the presence of mitigating circumstances beyond a reasonable doubt. The duty of the sentencing judge is to weigh the mitigating and aggravating circumstances that might be present, in order to determine whether to impose a sentence of death or some lesser sentence.

18. It is a mandatory requirement in murder cases for a judge to take into account the personal and individual circumstances of the convicted person. The judge must also take into account the nature and gravity of the offence; the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder; the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person. The death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by any other means. The sentencing judge is fixed with a very onerous duty to pay due regard to all of these factors.

19. In summary, the sentencing judge is required to consider, fully, two fundamental factors. On the one hand, the judge must consider the facts and circumstances that surround the commission of the offence. On the other hand, the judge must consider the character and record of the convicted person. The judge may accord greater importance to the circumstances, which relate to the commission of the offence. However, the relative importance of these two factors may vary according to the overall circumstances of each case.”

It is the need to consider the personal and individual circumstances of the convicted person and, in particular, the possibility of his reform and social re-adaptation which makes the social inquiry and psychiatric reports necessary for all such sentence hearings.’

4 So, from the above, it is seen that the Privy Council has endorsed what Rawlins JA said: that the sentencing judge should consider the circumstances of the commission of the offence as well as the character and record of the convicted person. Having endorsed what was said in Pipersburgh , the Privy Council in paragraph [21] of Trimmingham said, with reference to the approval it gave in Pipersburgh :

‘It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, “the worst of the worst” or “the rarest of the rare”. In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled”.’

5 Dr Williams has urged on us that the Privy Council has herein said that matters of character that are adverse to the convicted person must not be considered; only matters in his favour may be considered. I do not accept that interpretation. One has only to look back at what was stated as approved in Pipersburgh to conclude that the Privy Council did not intend any such construction to be placed on its statement. Surely, if a convicted murderer has a record of convictions for other murders committed on other occasions, it would be necessary to consider same in determining whether there is scope for the rehabilitation of such a person. In my view, to think otherwise defies commonsense and makes a mockery of the legislation.

6 It is interesting to note that since the hearing of the arguments in this appeal, a three-person panel of the Privy Council (Lord Rodger, Lady Hale and Sir John Dyson) handed down a judgment in White v The Queen [2010] UKPC 22, an appeal from Belize. In the judgment delivered by Sir John Dyson on 29 July 2010, a qualification to the basic principles referred to above was offered. After quoting paragraph [21] of Trimmingham , Sir John Dyson said the following at paragraph [14]:

‘With one qualification, the Board repeats and wishes to emphasise the importance of applying these two principles. The qualification is as to the apparently absolute prohibition on taking into account against the offender his bad character and any other relevant circumstances that may weigh against him. There may be cases where an offender's previous offending is so bad and the previous offences are so similar to the index offence that they are relevant to its gravity. An example might be where the index offence is the latest in a series of sadistic murders. There is the further point that the second basic principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment cannot be achieved by any means other than the death penalty. There may be cases where an offender's previous offending is so persistent and his previous offences so grave that they may properly lead the sentencing judge to conclude that there is no reasonable prospect of reform and that the object of punishment can only be achieved by means of the death penalty.’

7 This extract quoted from White confirms my view that Dr Williams' submission that previous convictions ought not to be considered is flawed, and unacceptable. At the same time, it is not to be thought that every conviction of whatever kind is to be considered. It is my view that the court ought to consider previous offences that involved killings or other very serious offences against the person, as well as any other that might reasonably impact on the question of likelihood of reform.

8 In Trimmingham , the circumstances of the killing were in my view horrendous. Their Lordships of the Privy Council described the case as ‘undeniably a bad case, even a very bad case, of murder committed for gain’. The following facts are set out in the judgment of the Privy Council. The appellant had a firearm. He decided to rob the deceased. He held the deceased on the ground at gunpoint, and demanded money. The deceased said he had given whatever money he had had to his daughter, and offered the appellant his goats as a substitute. The appellant struck the deceased in his stomach, causing him to fall on the bank of a rain water ditch. The appellant threw the deceased into the ditch, then proceeded to cut his throat with a cutlass which he had taken from the deceased. He went further - he cut off the head of the deceased and wrapped it in the trousers of the deceased which he had removed from the body. He handled the penis of the deceased and made what the Privy Council described as ‘a ribald remark’ about it. He then slit...