R v Lindell Powell
| Jurisdiction | Jamaica |
| Judge | F Williams JA |
| Judgment Date | 28 October 2022 |
| Neutral Citation | JM 2022 CA 106 |
| Docket Number | PROSECUTION'S CRIMINAL APPEAL NO COA2021PACR00001 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA Crim 53
THE HON Mr Justice F Williams JA
THE HON Miss Justice Simmons JA
THE HON Mr Justice Brown JA
PROSECUTION'S CRIMINAL APPEAL NO COA2021PACR00001
IN THE COURT OF APPEAL
Miss Paula Llewellyn KC, Director of Public Prosecutions, Miss Renelle Morgan and Marvin Richards for the Crown
Mrs Dionne Meyler-Barrett for the respondent
This matter comes before us as the first appeal by the Crown, against a sentence passed by a judge of the Supreme Court (‘the learned judge’), since the law was amended giving the Crown the right of appeal.
The Judicature (Appellate Jurisdiction) ( Amendment) Act, 2021, (‘the Act’) came into effect on 2 November 2021, amending the Judicature (Appellate Jurisdiction) Act (‘the principal Act’).
The relevant section of the Act is the newly-introduced section 18A(2), which reads as follows:
“(2) Subject to subsections (4) and (5), in any case, tried on indictment in the Supreme Court, the prosecutor may appeal to the Court of Appeal against-
(a) ….
(b) sentence imposed by the Supreme Court on conviction, if the appeal is on the grounds that-
(i) the Supreme Court did not have the power to impose the sentence; or
(ii) the sentence imposed is manifestly inadequate or unduly lenient (unless the sentence imposed is the maximum sentence permitted under the applicable laws).”
Also of relevance to this appeal as indicating the options available to this court on hearing such an appeal, are sub-paragraphs 18A(8)(a)(i) and (ii), the wording of which is as follows:
“(8) Upon hearing an appeal under this section, the Court may-
(a) in the case of an appeal against sentence-
(i) quash the sentence imposed by the trial court and substitute such sentence as the Court considers appropriate; or
(ii) affirm the sentence of the trial court and dismiss the appeal;”
The Crown has brought this appeal on two grounds, namely, that:
-
“(a) The Judge of the Supreme Court did not have the power to impose the sentence in accordance with section 42E(3) of the Criminal Justice (Administration) (Amendment) Act, 2015 [sic]. That is, he went below the mandatory minimum sentence of fifteen (15) years for the offence of Murder. In the alternative;
-
(b) that the sentence imposed by the Court below is manifestly inadequate or unduly lenient.”
By way of further background, it is useful to set out the charges contained in the indictment and also, although it will add considerably to the length of the judgment, the facts outlined to the court in respect of the offences.
The indictment charged the respondent with two counts of murder. The particulars of the offence of the first count stated that: “Linden Powell on the 07 th day of January 2017 in the parish of Westmoreland murdered Oral McIntosh”. The particulars of the offence in relation to the second count averred that: “Linden Powell on a day unknown between the 25 th day of March 2017 and the 26 th day of March 2017, in the parish of Westmoreland murdered Ika Clarke”. It is to be noted that the respondent was not charged pursuant to any specific statutory provision for either of the counts. Each statement of offence simply states: “Murder”.
On 17 November 2021, the respondent pleaded guilty to both counts of murder charged in the indictment in the Circuit Court for the parish of Westmoreland. As the pleas were taken near to the end of that circuit, the respondent's sentencing exercise was transferred to the Circuit Court for the parish of Hanover, in which the learned judge was next scheduled to preside. A social enquiry report and an antecedent report were ordered. On 2 December 2021, the respondent was sentenced to 12 years' imprisonment at hard labour on each count with the stipulation that he serve 10 years' imprisonment before becoming eligible for parole.
The following are the facts as outlined to the court on 2 December 2021, (and contained at page 4, line 25 to page 10, line 25 of the transcript of proceedings below), which, due to their importance in this appeal, are reproduced verbatim:
“ FACTS
The facts are, m'Lord, in respect of count one, that treats with the murder of Mr. Ika Clarke. On Sunday the 26 th day of March, in the year 2017, at approximately 7:45 in the morning, Francesco Clarke, father of deceased, Ika Clarke, went to his farm in Mount Mountain, Grange Hill, Westmoreland, where he observed that a hut where his son Ika was living, and a hut which is on his farm, that is Mr. Francesco Clarke, was [sic] on fire. On approaching the hut he saw that his son was also set ablaze. He noticed that there was wood and fire around him. He pulled off the wood and dragged his son's body from the fire. He appeared to be dead at the time.
Mr. Clarke then went to the police station at the Morgan's Bridge area and made a report. The police then had taken him back to the scene and he identified his son's body to the police using a scar that was on his left foot.
The scene was processed by Detective Constable Cox who removed a .40mm [sic] spent casing which was some forty feet from the hut. Also five (5) 9 millimeter spent casings and one expended bullet was removed from inside the hut.
M'Lord a Question and Answer interview was held with Mr. Lindell Powell who had been apprehended sometime thereafter. In that Question and Answer, my Lord, he stated that he knew one Carlington Godfrey, otherwise called Tommy and that it was he and Carlington Godfrey that ‘mek step or do work’. He said — officer asked him when he said, ‘mek step or do work’ what he meant by that. He said when Ika Clarke was murdered. When asked the following question: ‘What part did you play in Ika Clarke's murder?’ He answered, in quotation, ‘Fire five shots in a him chest.’
The accused then went on to state that it was Carlington Godfrey, otherwise called Tommy, that chopped up Ika Clarke and another person had burnt him. He states that this was done on Saturday, the 25 th day of March 2017, between the hours of 10:30 p.m. and 3:00 a.m. He states that Ika Clarke was killed because ‘Him did a mek talk say mi cousin, Bleachers, caan bury and then mi a go dead and him already kill one a mi friend, Jabez’. He also stated that the gun that the police had found on him on the 14 th of July 2017, when he was apprehended, was one of the weapons used to kill Ika Clarke.
A postmortem examination was conducted on the 26 th of June 2017, by Dr. S.D. Channa Perera where the cause of death was revealed to be multiple gunshot wounds to the chest.
In relation to Count 2, m'Lord, the murder of Mr. Oral McIntosh. On Saturday the 7 th of January 2017, some three (3) months before the death of Mr. Ika Clarke, at approximately 5:00 a.m., Mr. Oral McIntosh was shot and killed at his home at Top Lincoln District, Grange Hill, Westmoreland. A witness indicated, m'Lord, that he and Oral were on the outside of Oral's premises in the vicinity of the back door. He was assisting the now deceased to remove items from the deceased's vehicle. Whilst doing so he heard a voice say, ‘Don't move, lie down pon unnu face.’ The witness complied with these instructions. The witness said he saw two men, however, he could not identify them. He observed that Oral was approximately then (10) feet away from him and that he, Oral, the deceased, had also gotten down flat on his belly. The witness’ phone started ringing and one of the gunmen said, ‘Gimmi that phone.’ The witness removed his phone and placed it on the ground. One of the men then asked if he had a firearm and he said no. He then heard when the man asked the deceased, Oral, if he had a gun with him. Further, that if he had a gun he would die. He then heard the same voice said, ‘Gi mi dis.’ M'Lord, it should be noted that the deceased was a licensed firearm holder. The witness then heard a loud explosion and heard footsteps leaving and he got up and called out to the deceased and realized that he was not responding. He observed that the deceased was lying on his back and blood was running from his head.
During an examination of the scene of the crime, one 9mm spent casing was removed from beside the deceased man's body.
On the 9 th of March 2017, a postmortem examination was conducted on the body of Mr. Oral McIntosh and the cause of death was deemed to be a single gunshot wound to the face.
In a Question and Answer interview, m'Lord, interview which was conducted on the 15 th of July 2017, accused, Mr. Lindell Powell, indicated that on the morning in question he was in the company of Mr. Logan Miller, otherwise called Alkaline, who, m'Lord, is now deceased. He said on Saturday, the 7 th of January 2017, at about 5:00 a.m. when Mr. Oral McIntosh was killed, he states that he and Alkaline were on the road robbing men and women and he saw two men in a yard. He went to them and said, ‘Go pon unnu face.’ And whilst they were on their face he was searching the van. Alkaline then told them to turn over on their backs and he started searching them. He said Logan Miller, otherwise called Alkaline, found a gun on Oral and told him Powell to come. So Powell went to him and he Alkaline took the firearm that Lindell Powell was armed with at the time, and shot Oral in his head. He said Alkaline then took the gun from the deceased and both of them went into the bushes.
He indicated that they took the deceased man's phone and gun and robbed him of about $32,000.00. He indicated that the firearm which was robbed from the deceased, Oral McIntosh, was a Taurus 18 shooter.
M'Lord, the examinations indicates [sic] -- had shown that that firearm had featured in the murder of the 26 th of March 2017.
M'Lord, those are the facts.
His Lordship: You want to replead him?
Mrs. A. Martin-Swaby: I don't know if he has changed his mind. So, m'Lord, the only thing that had been tweaked m'Lord,...
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