Sheryl Wilson v R
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop P |
| Judgment Date | 08 April 2022 |
| Neutral Citation | JM 2022 CA 049 |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2022PCCR00001 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 22
THE HON Mrs Justice McDonald-Bishop P (AG)
THE HON Miss Justice Simmons JA
THE HON Mr Justice Brown JA (AG)
PARISH COURT CRIMINAL APPEAL NO COA2022PCCR00001
IN THE COURT OF APPEAL
Charles Williams for the appellant
Ms Paula Llewellyn QC, Director of Public Prosecutions, and Roneiph Lawrence for the Crown
McDonald-Bishop P (AG)
The appellant, Mrs Sheryl Wilson, was charged on an indictment containing six counts for the offences of making a false declaration (count 1), obtaining passport by forged documents (count 2), and uttering forged documents (counts 3 —6).
Based on the background information offered by the appellant and the facts outlined by the prosecution, the facts are that on 14 December 2010, the Passport Immigration and Citizenship Agency (‘PICA’) issued the appellant with a Jamaican passport with an expiry date of 13 December 2020. The passport was issued in her legal name, “Sheryl Suzette Pretrenia Wilson”. After she was issued said passport, she travelled to the Bahamas in 2010. Whilst in the Bahamas, she secured employment in that country and resided there for several years. However, as a result of overstaying her visit in the Bahamas, the appellant returned to Jamaica in 2014. In October 2014, the appellant obtained another passport from PICA under the name “Sherika Simone Murray”, which she used to regain entry into the Bahamas. The appellant travelled on this passport to the Bahamas on multiple occasions: 30 October 2014, 22 August 2015, 18 September 2016 and 27 November 2016. The appellant secured a work permit from the Bahamas under the fictitious name “Sherika Simone Murray”. She subsequently returned to Jamaica after being unsuccessful in obtaining a further work permit in the fictitious name from the Bahamian authorities. As a result, she re-entered the Bahamas using her legitimate passport issued in her legal name, “Sheryl Suzette Pretrenia Wilson”. Thereafter, the appellant obtained employment in the Bahamas and has resided there since.
In December 2020, the appellant sought to re-new her legitimate passport. Upon review of the appellant's application, by way of their facial recognition software, PICA discovered that the photograph submitted by the appellant matched an existing photograph in the passport issued in the name “Sherika Simone Murray”. This discovery led to an investigation, resulting in the appellant being subsequently arrested and charged.
On 20 August 2021, in the Corporate Area Parish Court — Criminal Division, before Her Honour Mrs Dennis-McPherson (‘the learned Parish Court Judge’), the appellant pleaded guilty to all six counts on the indictment. On 23 November 2021, she was sentenced to six months’ imprisonment on each count. The sentences were ordered to run concurrently.
The appellant appealed against the sentences imposed on her, and on 23 March 2022, this court, having heard and considered the submissions of counsel for both parties, within the framework of the applicable law, made the following orders:
“(1) The appeal is dismissed.
(2) The sentences of six months' imprisonment at hard labour for each count on the indictment to run concurrently are affirmed.
(3) The sentences are to commence forthwith on 23 March 2022.”
Although the court had orally indicated its reasons during its discourse with counsel at the hearing, it was considered useful to reduce them to writing at a later date. These are the written reasons for the decision of the court.
In her notice and grounds of appeal, dated 6 December 2021, the appellant set out the following grounds of appeal:
“(a) The Judge misdirected herself when she said that a suspended sentence is inapplicable because the Appellant resides in the Bahamas;
(b) The Judge ignored section 6 of the Criminal Justice (Reform) Act;
(c) The Judge failed to give herself directions as to why the substantive points raised in the Social Enquiry Report were not considered favourably.
(d) The Judge failed to take into account the dicta of the Honourable Justice Dennis Morrison of the Court of Appeal of Jamaica in his opinion that a custodial sentence should be the last resort, particularly when the accused pleaded guilty and had no previous convictions.
(e) The sentence of imprisonment was manifestly excessive in all the circumstances of this case.” (Punctuations as in original)
However, during his oral submissions, Mr Williams, counsel for the appellant, indicated that he was not contending that the sentences were manifestly excessive. He said the appellant is asking the court to impose a suspended sentence under section 6 of the Criminal Justice (Reform) Act (‘CJRA’).
In his written submissions, counsel stated that the court is being asked to consider the following:
“(i) Whether the learned Judge erred by not considering suspended [sic] sentence under Section 6 of the Criminal Justice Reform [sic] Act?
(ii) Whether the learned Judge erred in not taking into account several important factors?”
In consideration of these questions, we bear in mind the principle from R v Ball (1951) 35 Cr App Rep 164, where Hilbery J, at page 165, stated that:
“In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence… It is only when a sentence appears to err in principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene.” (Emphasis added)
Mr Williams argued that the learned Parish Court Judge erred in sentencing the appellant by failing to consider section 6 of the CJRA. Counsel further argued that the learned Parish Court Judge erred when she directed herself that a suspended sentence is inapplicable as this was based on an incorrect conclusion that the appellant resided in the Bahamas. He contended that the appellant is not a resident of the Bahamas and that even if she were, a suspended sentence could be imposed on a foreign national.
Mr Lawrence, on behalf of the Crown, agreed with Mr Williams that the learned Parish Court Judge was incorrect in her determination that the appellant was a resident (at least a legal one) of the Bahamas. In his written submissions, he submitted that as gleaned from the facts, the appellant is a Jamaican citizen who was periodically employed in the Bahamas. Counsel also submitted that section 6 of the CJRA is not restrictive or limited to persons who reside in Jamaica and, therefore, the learned Parish Court Judge erred in two respects when she did not give adequate and due consideration to a suspended sentence.
Section 6 of the CJRA states that:
“6. -(1) A court which passes a sentence of imprisonment on any offender for a term of not more than three years for any offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than three years from the date of the order (hereinafter referred to as the ‘operational period’), the offender commits in Jamaica another offence punishable with imprisonment for a period exceeding six months (hereafter in this section and sections 7 and 8 referred to as a ‘subsequent offence’) and thereafter a court having power to do so orders under section 7 that the original sentence shall take effect:
Provided that the above provisions of this subsection shall not apply where the offence involved the use, or the illegal possession of, a weapon referred to in the First Schedule, a firearm or imitation firearm.
(2) A court shall not deal with an offender by means of a suspended sentence unless the case appears to the court to be one in respect of which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence by an order under subsection (1).
(3) A court which passes a suspended sentence on any offender for an offence shall not make a probation order in the offender's case in respect of another offence of which he is convicted before that court.
(4) Where a court passes a suspended sentence on an offender in respect of an offence and a term of imprisonment in respect of another offence the court shall direct that the suspended sentence be concurrent with the term of imprisonment.
(5) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under section 7, if during the operational period he commits a subsequent offence punishable with imprisonment.” (Emphasis added)
Accordingly, there is no question that the court is empowered under section 6 of the CJRA to impose a suspended sentence within the circumstances specified under the CJRA. However, a judge is not obligated to do so as this sentencing option remains solely within the judge's discretion.
It is clear from the learned Parish Court Judge's reasons that she considered a suspended sentence under section 6 of the CJRA but found it to be inappropriate in the circumstances. In expressing her reasons for imposing a term of imprisonment on the appellant, the learned...
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