R v Romario Brown
| Jurisdiction | Jamaica |
| Judge | Shelly-Williams J |
| Judgment Date | 24 May 2019 |
| Neutral Citation | [2019] JMSC Crim 1 |
| Date | 24 May 2019 |
| Docket Number | CASE NO. 2018 CR 00446 |
| Court | Supreme Court (Jamaica) |
[2019] JMSC Crim 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Shelly-Williams, J.
CASE NO. 2018 CR 00446
Ms Tamara Merchant for the Crown
Mr Donald Bryan for the Defendant
Sentence — Manslaughter — Provocation — Larceny from the dwelling — Simple Larceny
The Defendant on the 10 th day of April 2019 pleaded guilty to the offences of Manslaughter, Larceny from the dwelling contrary to section 18(a) of the Larceny Act and Simple larceny contrary to section 5 of the Larceny Act. The accused man was charged originally for murder, but it was reduced to manslaughter due to provocation.
The Defendant on the 29 th day of August, 2017 was at the home of the deceased Mr Dexter Pottinger. The Defendant was at Mr. Pottinger's home cutting up “weed” ie ganja with the now deceased. Mr. Pottinger left the room and returned undressed, in an aroused state, and was approaching Mr Romario Brown. The Defendant on seeing this used the said knife he had been using to cut up the “weed” and stabbed the deceased once. The deceased then turned and went into his bedroom. The Defendant followed him and continued to stab him. The post mortem report indicated that the deceased was stabbed a total of twenty-five (25) times. The Defendant then took a bath, removed the television from the house of the deceased along with his watch, loaded them into the Honda CRV belonging to the deceased, and then drove away.
The Defendant was arrested and charged for the offence of murder and after being cautioned, confessed the offences to the investigating officer. He then gave a caution statement which enhanced the details of the confession he had made to the investigating officer. The Defendant pleaded guilty to the offences listed above.
The court on the 10 th day of April, 2019 made an order for the Honda CRV, the television and the watch that were recovered by the police during the course of their investigation to be released to the father of the deceased.
In approaching this sentence I will consider:
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a) previously decided cases,
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b) the sentencing guidelines launched in January 2018.
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c) legislation that provides for discounts to be awarded by the court under certain circumstances.
In the case of R v Lorde (2006) 73 WIR 28 Barbados (Bds CA) the accused was charged for the offence of murder but he pleaded guilty to the offence of manslaughter. The plea was accepted due to the issue of provocation. The trial judge sentenced Mr Lorde to 20 years imprisonment. The Court of Appeal in that case reduced the sentence to 12 years and found that the trial judge did not properly balance the aggravating and mitigating matters.
The Court went on to give general guidance on sentencing for manslaughter which was later approved by the Caribbean Court of Jamaica (CCJ) in Burton v R, Nurse v R — (2014) 84 WIR 84, CCJ.
Per Simmons, CJ: starting at paragraph 13 of his judgment stated:-
AGGRAVATING AND MITGATING FACTORS RELEVANT TO MANSLAUGHTER
The offence of manslaughter may be committed in a wide variety of circumstances. We shall eschew the temptation to set out a list of the variety of such circumstances in this judgment but nothing that we say applies to ‘motor manslaughter’. Our observations relate to cases where original charges of murder result in convictions for manslaughter. For example, three types of cases are commonplace.
(1) On a charge of murder, the accused pleads not guilty but is found guilty of manslaughter by the jury.
(2) On a charge of murder, the accused pleads not guilty of murder and the prosecution accepts a plea of guilty of manslaughter.
(3) On a conviction for murder, the Court of Appeal substitutes a conviction for manslaughter because of judicial error in the summation.
In deference to the submissions of both counsel and their generous citation of authority we now identify some of the aggravating and mitigating factors that ought to be considered by the court where they are relevant. They relate both to the offence and the offender.
Aggravating factors relating to the OFFENCE may include —
(a) planning or premeditation;
(b) use of a firearm or dangerous weapon;
(c) being armed with a weapon in advance;
(d) excessive force in self-defence even though the issue of selfdefence is rejected by the jury;
(e) in cases of domestic violence, the fact that the killing was the culmination of a history of violence by the offender.
Aggravating factors relating to the OFFENDER may include—
(a) previous convictions;
(b) indifference to the offence.
Mitigating factors relating to the OFFENCE may include —
(a) spontaneous action rather than premeditation;
(b) provocation (in the technical and non-technical sense);
(c) some evidence of self-defence even if rejected by a jury.
Mitigating factors relating to the OFFENDER may include—
(a) age;
(b) clear evidence of remorse or contrition;
(c) a timely plea of guilty.
The court will always be required to balance the competing factors in deciding what is the appropriate length of a sentence.
Simmons J, continue at para. 35.
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1. In a contested trial where death was caused by a firearm and the facts are on the borderline of murder with no mitigating features, the range of sentence should be 25 years and upwards, including, in a proper case, life imprisonment.
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2. In a contested trial where death was caused by a firearm and the facts are grave but mitigating factors such as provocation exist, the range of sentence should be 18 to 22 years. However, an early plea of guilty in a non-contested case on similar facts will attract a lower sentence in the range of 14 to 18 years.
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3. In a contested trial where no firearm was used and there are no mitigating circumstances, the range of sentence should be 16 to 20 years. An early plea of guilty in this type of case will reduce the range of sentence to 10 to 14 years.
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4. In a contested trial where no intrinsically dangerous weapon was used and there are mitigating features, the range of sentence should be 8 to 12 years. An early plea of guilty in this type of case may attract a sentence of less than 8 years.”
The court has promulgated sentencing guidelines that were launched in January 2018. These sentencing guidelines seek to promote, among other things, some consistency in the sentences that were handed down by Judges. In the sentencing guidelines as it relates to manslaughter the following terms are established:-
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(1) The statutory maximum is life.
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(2) The usual starting point for manslaughter is five (5) years.
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(3) The range of sentences for manslaughter is between three (3) to ten (10) years.
In utilising the sentencing guidelines, I embrace the purpose of the guidelines, however, I am aware that it is not a fetter to the discretion of the court. This view was also advocated in the cases of Burton v R, Nurse v R — (2014) 84 WIR 84, CCJ (from Bds CA)
Burton, was 15 years old whilst Nurse was 17 years old. The Accused, were schoolboys who had been engaged in a fight with another schoolboy, Wright. Burton stabbed Wright in his chest which caused his death. On arraignment both pleaded not guilty to murder but guilty of manslaughter. Their pleas were accepted.
There were a number of mitigating factors including their age, unblemished records, remorse and their assistance to the police. They also had favourable presentencing reports.
The judge took into account the sentencing guidelines and mitigating factors and sentenced Burton to 7 years and Nurse to 5 years imprisonment. The judge indicated that he had taken into account the time spent on remand but it was not clear that the full discount had been given.
It was argued, that judicial sentencing guidelines had not been followed. The CCJ ruled that guidelines were not intended to take away from the discretion of a judge.
Per Anderson, JA:
“[13] We agree that the exercise of judicial discretion is and must remain at the heart of the sentencing process. The guidelines cannot place the sentencing judge into a strait-jacket or in any way fetter that judicial discretion. …
[14] As has been said repeatedly, the guidelines are only guidelines and not meant to be applied slavishly to every case. They provide assistance to the sentencing judge not rules from which departure is...
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