Roland Bronstorph v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: McDonald-Bishop JA
• Judgment Date: 31 July 2024
• Neutral Citation: JM 2024 CA 093
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 59/2019

Roland Bronstorph

and

R

[2024] JMCA Crim 29

Before:

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mrs Justice Dunbar-Green JA

THE HON Mr Justice Laing JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 59/2019

IN THE COURT OF APPEAL

Criminal law — Sentencing — Murder — Whether sentencing judge has a duty to give notice before imposing a sentence of life imprisonment — Whether judge erred in imposing life imprisonment — Principles governing the imposition of life imprisonment — Principles governing the fixing of the pre-parole period (minimum term) — Whether sentence manifestly excessive — The Offences Against the Person Act, ss 2(2), 3(1)(b), 3(1E)

Hugh Wilson for the appellant

Miss Ashtelle Steele, Janek Forbes and Miss Sharelle Smith for the Crown

McDonald-Bishop JA

1 On 31 December 2014, the appellant, Roland Bronstorph, fatally stabbed the deceased, Kenroy Smith, at the Rural Metropolitan Bus Terminus on Darling Street in the parish of Kingston, following an altercation between them arising from the loading of two public passenger vehicles. The appellant was subsequently charged for murder.

2 He was tried in the Home Circuit Court on divers days in March and April 2019 before a judge (‘the learned judge’) sitting with a jury. His defence was one of self-defence. The learned judge also left the defence of provocation for the jury's consideration. The jury rejected the defences and returned a unanimous guilty verdict. On 7 June 2019, the learned judge sentenced the appellant to imprisonment for life and ordered that he serve 15 years' imprisonment before becoming eligible for parole.

The case at trial

A. The prosecution's case

3 The prosecution's case was that, on 31 July 2014, the appellant and the deceased were conductors on public passenger buses that plied the Kingston to Ocho Rios route. The bus on which the deceased was a conductor was parked inside the terminus and was almost full. The deceased's bus had been waiting in the terminus for approximately three hours. The appellant's bus drove into the terminus and the appellant started to call out for passengers. The long delay in leaving the terminus caused all the passengers seated in the deceased's bus to leave and board the appellant's bus.

4 The deceased left his bus, which was parked over 35 feet away from the appellant's bus, and approached the appellant. Heated words were exchanged between them and the altercation became physical. The men were, however, separated by onlookers, including the Crown's sole eyewitness, Sergeant Irons, an off-duty policeman. Sergeant Irons introduced himself to the disputants as a policeman. He reprimanded the appellant and instructed him to move his bus because the bus was now full. Onlookers took the deceased away from the location where the altercation had taken place.

5 The appellant moved away from Sergeant Irons and went to the back of his bus. Shortly after, Sergeant Irons heard a commotion coming from the location where the deceased was taken to earlier by onlookers. Sergeant Irons went to the area to investigate the cause of the commotion. He saw the appellant and the deceased in a “tussle”. The appellant had a knife in his hand stabbing the deceased. Sergeant Irons saw nothing in the deceased's hands. Sergeant Irons tried to disarm the appellant but was unsuccessful because the appellant was resisting. He managed to secure the assistance of onlookers to disarm the appellant and eventually, the knife fell from the appellant's hand. Sergeant Irons retrieved the knife.

6 Sergeant Irons observed the deceased fall to the ground with blood coming from his chest. He gave instructions for the deceased to be taken to the Kingston Public Hospital. With the assistance of onlookers, Sergeant Irons escorted the appellant to the Darling Street Police Station where he handed the appellant over to police personnel on duty there. The knife was also handed over for safekeeping. The appellant, upon being cautioned by Sergeant Irons at the scene, responded by saying that the deceased and his friends had attacked him and that Sergeant Irons was not present when that occurred. Sergeant Irons asked him to show him where he was hit by the deceased and his friends but the appellant did not indicate. Sergeant Irons noticed no marks of violence on the appellant's body.

7 The deceased succumbed to his injuries the same day. Subsequent post-mortem examination of his body revealed that he had three injuries, namely, (i) a stab wound to the right chest which broke or fractured the third and fourth ribs and penetrated the upper lobe of the right lung and the upper part of the heart; (ii) a stab wound to the left chest, causing the left lung to collapse; and (iii) a stab wound to the front of the right thigh, which was a superficial wound. The cause of death stated was shock and bleeding haemorrhage. The pathologist who conducted the post-mortem examination opined that a severe degree of force would have caused the injury to the right chest and a moderate to severe degree of force would have caused the injury to the left chest. He described those wounds as fatal wounds.

8 Before the appellant was charged, he was advised that he was a suspect, and upon being cautioned, he responded, “officer a him and him friends them rush me and mi just swing mi knife”. The police subsequently interviewed him in the presence of his attorney-at-law, and he did not comment on the questions asked. Following the interview, he was charged with murder, and upon caution, he remained silent.

B. The appellant's case

9 In his defence, the appellant gave sworn evidence raising the defence of self-defence. He gave his age as 57 years old. He said while he was loading his bus, the deceased approached him and “draped” him, saying “country bwoy, yuh nah load before mi, eenu”. He “draped back” the deceased because the deceased had first draped him. A fight ensued and Sergeant Irons parted them. He continued to load his bus and then about 20 minutes later, he left to purchase a phone card and was returning to his bus, when the deceased and three other men approached him. As he was about to pass the deceased, the deceased attacked him and grabbed his throat. Due to the tight grip of the deceased's hand on his throat, he felt as if he was going to die as he could not breathe. It was then that he took out his knife and flashed it towards the deceased. He said that any stab the deceased received was a result of him (the appellant) fighting for his life.

The appeal

10 Aggrieved by the verdict and sentence of the court below, the appellant applied to this court for permission to appeal conviction and sentence, which was granted by a single judge. At the hearing of the appeal, the appellant through his counsel, Mr Hugh Wilson, chose not to pursue the appeal against conviction. He sought the leave of the court to abandon the original grounds on which leave was granted by the single judge and to argue instead two supplemental grounds of appeal concerning sentence only. The appellant's application was granted. Therefore, the appeal is restricted to a consideration of the sentence only.

11 The appeal against sentence proceeded on the two supplemental grounds of appeal formulated in these terms:

“1. The sentencing judge erred in law in sentencing the appellant to an indeterminate sentence of life imprisonment without prior warning to counsel for the appellant of her intention to do so and inviting counsel to make submissions as to why life imprisonment should not be imposed on the appellant.

2. The sentencing judge erred in law in imposing on the appellant a term of life imprisonment, which was manifestly excessive having regard to the circumstances of the case.”

12 The supplemental grounds of appeal and the arguments presented in support of them raise questions as to the appropriate procedure to be adopted by a judge who contemplates imposing a life sentence for murder falling within section 2(2) of the Offences against the Person Act (‘OAPA’) (which for ease of reference will be referred to as ‘section 2(2) murder’ in contradistinction to murder falling within section 2(1) which will be termed ‘section 2(1) murder’) and the circumstances in which it is appropriate to impose a sentence of life imprisonment for section 2(2) murder.

13 There is some overlap in the arguments presented by Mr Wilson under each of the grounds of appeal. Given the overlapping arguments and this court's usual approach to appeals against sentence, as set out in Alpha Green v R (1969) 11 JLR 283 at 284 and Meisha Clement v R [2016] JMCA Crim 26 (‘ Meisha Clement’) at paras. [42] – [43], the arguments raised by the appellant are most conveniently dealt with under the rubric of two issues, namely:

• (1) whether the learned judge erred in her approach to imposing a sentence of life imprisonment; and

• (2) whether the sentence imposed was manifestly excessive in the circumstances.

14 Resolving these issues requires an appreciation of the provisions of the OAPA, which comprise the statutory framework for sentencing in section 2(2) murder cases. Therefore, it is necessary to provide a summary of those provisions and their applicability to the instant proceedings.

The statutory framework

15 Before 2005, the mandatory sentence for section 2(2) murder was life imprisonment. The sentencing judge was empowered, then, to stipulate a mandatory minimum term of no less than seven years before eligibility for parole (see section 3A of the OAPA, introduced into law by Statutory Instrument 14 of 1992). Under the then-section 3A, a sentencing judge had no discretion to impose any other sentence for the offence. In 2005, Parliament, through the passage of section 3(1)(b) of the OAPA, gave sentencing judges the discretion to impose a sentence for section 2(2) murder ranging from a minimum of 15 years' imprisonment to a maximum of life imprisonment.

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