Sylburn Lewis v R

• Jurisdiction: Jamaica
• Judge: Morrison P
• Judgment Date: 28 October 2016
• Neutral Citation: JM 2016 CA 95
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 2/2014
• Court: Court of Appeal (Jamaica)
• Date: 28 October 2016

Sylburn Lewis

and

R

[2016] JMCA Crim 30

Before:

The Hon Mr Justice Morrison P

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Mcdonald-Bishop JA

SUPREME COURT CRIMINAL APPEAL NO 2/2014

JAMAICA

IN THE COURT OF APPEAL

Trevor Ho-Lyn for the appellant

Miss Paula Llewellyn QC, Jason Alliman and Mrs Sharon-Milwood Moore for the Crown

Morrison P

1 On 12 December 2013, the appellant was convicted of the offence of wounding with intent, contrary to section 20 of the Offences Against the Person Act (the Act), after a trial before Sykes J (the judge) and a jury in the Circuit Court for the parish of Saint Elizabeth. On 13 December 2013, the judge sentenced the appellant to 28 years' imprisonment at hard labour. In arriving at this sentence, it appears that the judge only took into account in mitigation the fact that the appellant had spent approximately two years in custody pending his trial.

2 The appellant's application for leave to appeal against his conviction and sentence was considered on paper by a single judge of appeal on 11 August 2015. The application was refused in respect of the conviction, but granted in relation to the sentence imposed by the judge.

3 At the conclusion of the hearing of the appeal on 19 September 2016, the court made the following orders:

1

The application for leave to appeal against conviction is dismissed. 2. The appeal against sentence is allowed and the sentence of 28 years' imprisonment imposed by the judge is set aside. 3. In its stead, the court imposes a sentence of 17 years' imprisonment at hard labour, such sentence to be reckoned as having commenced on 13 December 2013.

4 This judgment is written in fulfilment of the promise made by the court at that time to give reasons for its decision. In this regard, it is first necessary to state in outline the brief facts of the case. The appellant was charged with wounding Oshane Wilson (the complainant), with intent to do him grievous bodily harm, on 7 December 2013. The case for the prosecution was that, on the morning of that day, the appellant, who was armed with a machete, launched an unprovoked attack on the complainant. When the complainant put up his right hand to ward off the attack, the appellant chopped him with the machete, injuring his hand and severing three of his fingers. The complainant started to run away, but he was chased by the appellant, who then chopped him again, causing him to fall to the ground. The appellant continued to swing the machete at the complainant, chopping him on his left foot, while the complainant tried to block him with his left hand, receiving multiple chops to that hand in the process. The appellant then chopped the complainant just below his shoulder, with such severity that it broke the bone in his arm, causing it to fall across his head. At this point, the complainant said, the appellant remarked, ‘Yu dead now’, and then went on his way. As a result of these injuries, the complainant was hospitalised for a period of three weeks, during which time, he told the court, he underwent three operations on his left arm, shoulder, ‘coming down to the wrist’.

5 The appellant's case was that he acted in self-defence. According to him, as he was going about his lawful business, he honestly apprehended an attack by the complainant and two other men. The appellant said that the complainant was armed with a fish gun and that, it was as the three men advanced towards him, with the complainant coming closest to him, that he swung his machete at them and heard a sound as though it had hit the fish gun. The appellant contended that any injuries sustained by the complainant were therefore the result of his effort to repel the complainant's attack.

6 The judge gave the jury full and accurate directions, about which no complaint is now made, on the law relating to self-defence. Thus, the jury were told that if the complainant received his injuries in the manner described by the appellant, no offence had been committed. The jury were also directed that the appellant was not obliged to prove anything, but that it was for the prosecution to prove to their satisfaction that the appellant had not acted in lawful self-defence. The jury also had the benefit of an unexceptionable standard good character direction from the judge.

7 After retiring for just under an hour, the jury returned a unanimous verdict of guilty of the offence of wounding with intent. The antecedent report presented to the court by the police revealed that the appellant was a man of 38 years of age; that, although the appellant had attended school for some nine years, he was ‘not able to read and write well’; and that the appellant had one previous conviction (which he admitted) for possession of ganja some 15 years before, for which he had been fined $100. 00 or 10 days' imprisonment. In a plea of mitigation made by counsel for the appellant, the court was told that he had spent two years and three months in custody pending his trial.

8 In his sentencing remarks, the judge observed as follows:

‘Having regard to the evidence presented by the Prosecution, it is clear that this case, in the world of Wounding with Intent cases, has to be regarded as one of the more severe cases of Wounding with Intent. Why do I say this? This shows a premeditated, planned attack on the complainant … Because clearly you had to track down the [complainant], find out where [he] was and then you were coming stealthily behind him, clearly it was behind and he turned around in time to see the machete virtually on its way down, put up his hand and with that first chop, he lost three of his fingers. Must have been a lot of blood. But even the sight of the blood and the even serious injury did not give you cause for thought. There was no sense of wait, the man was given a serious injury, what is this I have done? Nothing like that. He is on the ground there and you are chopping at him. He kicks you and is trying to get away, you still chopping at him. You chopped him on his foot.

He gets up, runs away from you … He runs down on the road and you were there in hot pursuit. You chopped him in his back. He falls to the ground again. And all the chops after he fell the second time are aimed at the upper part of his body. This explained why he had multiple chops on his left hand. He is on the ground using his hand to prevent you from chopping him in his head or neck. That still doesn't stop you. One chop was so severe, the force was so severe that it broke his arm, the bone of his arm and the arm fell listlessly across his head and not even that stopped you. What stopped you was that you formed the view that he was now dead because those were the words that the complainant heard. ‘Yu dead now.’ So, mission accomplished and you are on your way. So this is no product of a fight. This is not the product of a single chop. The attack ceased because you thought he was dead.’

9 The judge then pointed out that, for a fairly serious case of wounding with intent, the sentence of the court would usually be between 15 to 18 years. But this was, the judge said, a different kind of case:

‘… what you did to this gentleman was not just wicked, it was really bordering on evil. Because you set out to maim this young man and your sole plan was to kill him. Fortunately, you did a bad job. That's why he is alive here. So in this kind of case, the usual sentence of 15 to 18 years really is inadequate.

So the position is … that for this kind of attack, the severity of the injuries, your expressed intent at the time, that the man is to die … the sentence of the Court ought to reflect the seriousness of the attack in this case, the absence of any kind of compassion.’

10 In the result, after indicating that he would take into account the time spent by the appellant in custody, which he approximated at two years, the judge sentenced the appellant to 28 years' imprisonment.

11 On 1 December 2015, the appellant filed a single supplemental ground of appeal, by which he contended that the sentence imposed by the judge was manifestly excessive. In particular, the appellant complained that the judge failed to take into account the usual sentences imposed for offences such as the one for which he was convicted and to balance the aggravating factors against the mitigating factors to arrive at the appropriate sentence.

12 The matter first came before the court, sitting in Lucea in the parish of Hanover, on 7 December 2015. At that time, Mr Ho-Lyn for the appellant sought and was granted leave, without objection from the learned Director of Public Prosecutions, to argue the supplemental ground...