Richard Brown v R

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 14 October 2016
• Neutral Citation: JM 2016 CA 91
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 28/2003
• Court: Court of Appeal (Jamaica)
• Date: 14 October 2016

[2016] JMCA Crim 29

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mr Justice Williams JA

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 28/2003

Richard Brown

and

R

Mrs Caroline Hay and Neco Pagon for the appellant

Mrs Sharon Milwood-Moore for the Crown

F Williams JA

1 This matter came before us as an appeal against sentence only, the appellant's appeal against conviction having been dismissed by this court on 11 March 2005 and by the Judicial Committee of the Privy Council (the Privy Council or the Board) on 3 December 2015.

2 On that date, the Privy Council allowed the appellant's appeal against sentence and remitted the matter to this court for further consideration. There were two bases for the matter being remitted: one was the Board's doubt as to what allowance the learned trial judge had made for the time that the appellant spent in custody pending trial, in setting the time to be served before he might become eligible for parole. The other was the appellant's longstanding mental health problems, which it said ought to be an additional factor to be considered by way of personal mitigation.

3 On 23 September 2016 we made the following orders:

• ‘(i) The appeal against sentence is allowed;

• (ii) The sentence that was imposed is varied in that the minimum period stipulated for the appellant to serve before becoming eligible for parole is reduced from 25 years to 18 years.

• (iii) The sentence of life imprisonment is to be reckoned as having commenced on 23 January 2003.’

4 These are our promised reasons for making the above-stated orders.

Summary of the case against the appellant

5 On 16 January 2003 the appellant was convicted of the murder of Errol Lynch on 22 September 1998. The deceased had been shot to death. The Crown's case was that the appellant and two other men went to the home of the deceased, where, after an argument, the appellant shot him. The details of the trial need not detain us, in light of the dismissal of the appellant's appeal against conviction by both this court and the Privy Council. Suffice it to say that the appellant was sentenced to life imprisonment with the stipulation that he should serve 25 years before becoming eligible for parole.

The appeal against sentence

6 Mrs Hay, for the appellant, applied for and was granted leave to argue one ground of appeal; that is that:

• ‘1. The sentence is manifestly excessive in all the circumstances of the case and ought to be set aside and this Honourable Court ought to substitute [such] sentence as it deems just.’

7 As might have been expected, given the observations of the Privy Council, this appeal proceeded on two main bases: (i) that there was no clear reflection of how the learned trial judge accounted for the appellant's time spent in custody before trial; and (ii) the appellant's history of mental illness. The Caribbean Court of Justice (CCJ) decision of Romeo DaCosta Hall v The Queen [2011] CCJ 6 (AJ) was cited in support of the contention that there ought to be a clear reflection of how time spent in custody before trial should be accounted for. It was Mrs Hay's submission that, in the sentencing of the appellant, the discretion to take into account time spent on remand prior to trial was improperly exercised. It was also submitted, in relation to the second limb of the challenge to the sentence, that the appellant's long history of mental illness was to be considered as a mitigating factor in determining the number of years to be served before the appellant was to become eligible for parole; or in deciding whether a determinate sentence might be substituted for the sentence of life imprisonment with 25 years to be served before the appellant might become eligible for parole.

Discussion

The accounting for the time spent in custody before trial.

8 in relation to the time before trial that the appellant had spent in custody, the learned trial judge (at page 259, lines 5 to 7, of the transcript) stated as follows:

‘I also take into account that you have been in custody from 1998, and this will be reflected in the sort of sentence I am going to impose on you.’

9 Later, at lines 16 to 17 of the same page of the transcript, the learned trial judge is recorded as saying:

‘…I take into account that you were in custody for some four years plus…’

10 In fairness to the learned trial judge, although, with the benefit of several recent judgments, we may be tempted to look askance at his approach to the matter, his approach reflected what, at the time of sentencing in 2003, was regarded as the conventional and widely-accepted way of dealing with time spent in custody before trial.

11 It is with the benefit of the guidance provided in cases such as Romeo DaCosta Hall; and the Privy Council judgment in this case, among others, that what might now be accepted as the current, standard approach has emerged.

12 In Romeo DaCosta Hall, the appellant sought to challenge his sentence of six years' imprisonment, which was imposed after he had pleaded guilty to the offence of causing grievous bodily harm with intent. The main basis of his appeal was that the learned trial judge and the Court of Appeal of Barbados (which had affirmed the sentence) erred in law in failing to take into account, each day that he spent on remand in custody, which would have resulted in a reduction in his sentence. Nelson J, writing on behalf of the majority, gave the following guidance in dealing with crediting presentence custody, at paragraphs [26] and [27] of the judgment:

‘[26] …The judge should state with emphasis and clarity what he or she considers to be the appropriate sentence taking into account the gravity of the offence and all mitigating and aggravating factors, that being the sentence he would have passed but for the time spent by the prisoner on remand. The primary rule is that the judge should grant substantially full credit for time spent on remand in terms of years or months and must state his or her reasons for not granting a full deduction or no deduction at all…

[27] In the interests of transparency in sentencing and in keeping with the principles relating to the imposition of custodial sentences in the Penal System Reform Act, Cap. 139 a sentencing judge should explain how he or she has dealt with time spent on remand in the sentencing process. As indicated above, if the judge chooses to depart from the prima facie rule of substantially full credit for time served prior to the sentence, he or she should set out the reason for such departure. See also Callachand at [11] ¹¹ .’

13 Wit J, at paragraph [30] of the judgment, dissenting from the majority, helpfully and succinctly outlined the areas of agreement between himself and the majority as follows:

‘[30] For the most part I am in agreement with the majority judgment delivered by Nelson J. We agree that the lower courts did not apply the appropriate principles in arriving at the sentence of six years and that the appeal should therefore be allowed. We also agree, in principle, that time spent in custody should fully or at least substantially be taken into account by the sentencing judge when calculating the length of a custodial sentence. We further agree that this constitutes a prima facie rule from which the judge may only depart in a limited number of cases…’

14 At paragraphs [50] and [51] of the judgment, Wit J also states the guiding principles to be as follows:

‘[50] The method by which time spent on remand is to be credited should at all times be transparent, reasonable and just. But it should equally be practical, predictable and simple. Ergo, there should not be too much leeway for varying outcomes and the discretionary power of trial judges should therefore be construed as quite narrow lest their sentencing practices be perceived, arguably with some justification, as arbitrary and unpredictable. Any departure from the prima facie rule of full credit for time served in presentence custody must be contemplated with great caution and can in my view only be grounded on exceptional circumstances which constitute some form of abuse of the process…

‘[51] In any event, in order to ensure that custody time will be fully credited in a consistent and transparent wav, the reasons for departing from the rule should be compelling and stated in open court when passing sentence. Moreover, the time that must be set off against the sentence must be clearly specified by the sentencing judge. Clarity demands no less .’ (Emphasis added)

15 Also significant in this regard is the case of Ajay Dookee v The State of Mauritius and Another [2012] UKPC 21, cited by Mrs Hay. There, at paragraph 12, the Board, in a judgment written by Lord Brown, considered, among others, the case of Callachand and Another v State of Mauritius [2008] UKPC 49, and made the following observations:

12…The real question arising here is how to deal with the 14 months earlier spent by the appellant in custody awaiting trial. This question, as to the proper approach to time spent in custody awaiting trial, was considered by the Board in Callachand v State [2008] UKPC 49, [2009] 4 LRC 777. The following passages from Sir Paul Kennedy's judgment for the Board are now in point:

“9 The Board is not concerned in the present case with time spent in custody as an appellant. So their Lordships need not consider the need to deter frivolous appeals. But they are concerned with the basic right to liberty. In principle it seems to be clear that where a person is suspected of having committed an offence, is taken into custody and is subsequently convicted, the sentence imposed should be the sentence which is appropriate for the offence. It seems to be clear too that any time spent in custody prior to sentencing should be taken fully into...