Thomas (Damion) v R

• Jurisdiction: Jamaica
• Judge: PHILLIPS, J.A.
• Judgment Date: 18 December 2009
• Neutral Citation: JM 2009 CA 122
• Judgment citation (vLex): [2009] 12 JJC 1808
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON, J.A THE HON. MR JUSTICE DUKHARAN, J.A THE HON. MISS JUSTICE PHILLIPS J.A

DAMION THOMAS

v

R

Nancy Anderson for the appellant

Maxine Ellis, Crown Counsel for the Crown

CRIMINAL LAW - Murder - Sentence - Whether sentence manifestly excessive

PHILLIPS, J.A

1 This is an appeal against a sentence of life imprisonment, with no possibility of parole before 25 years, imposed on the appellant Damion Thomas on March 3, 2006 at a re-sentencing hearing, which took place pursuant to the Offences Against the Person (Amendment) Act, 2005. The appeal was heard on the 21 ^st September, 2009, and decision was given on the 4 ^th December, 2009. We promised to put our reasons in writing. This we now do.

2 The appellant was born on November 21, 1980. On November 18, 2002, he was convicted of murdering Donovan Brown on February 4, 1998 and, since this was his third non-capital murder conviction (the first murder had been committed in 1994), he had originally been sentenced on December 3, 2002 to suffer death as authorized by law.

3 On July 7, 2004 the Judicial Committee of the Privy Council (JCPC) decided, in the case of Lambert Watson v R (2004) 64 WIR 241, that the mandatory imposition of a sentence of death was unconstitutional in Jamaica. As a consequence of this decision, the Offences against the Person Act was amended on February 18, 2005 to reflect this and to make provision for a re-sentencing hearing in the case of persons who were already under a sentence of death (S. 8). As a result, the appellant was re-sentenced to life imprisonment as set out in paragraph 1 above.

4 At the appellant's re-sentencing hearing, it was submitted on his behalf that the only appropriate sentence which ought to have been imposed, him being 17 years of age at the date of the offence, was detention at the Court's pleasure. However, on March 26, 2004, the Child Care and Protection Act was promulgated and section 78(1) of the Act states:

"Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years, but in place thereof such person shall be liable to be imprisoned for life."

On the basis of this provision, the Crown contended successfully that the appellant was liable to imprisonment for life.

The grounds of appeal

5 Miss Nancy Anderson, who appeared for the appellant before us, sought and was granted leave to rely on and argue three grounds of appeal which are set out below:

• "1. The Learned Trial Judge erred in law in failing to hold that the legislation in force at the time of the commission of the offence by the appellant and the date of conviction was section 29(1) of the Juveniles Act, as modified by the Judicial Committee of the Privy Council in DPP v Mollison (2003) UKPC 6.

• 2. By imposing a life sentence, the Learned Trial Judge erred in law in that he applied section 78(1) of the Child Care and Protection Act retrospectively in contravention of the general presumption against the retrospective operation of statutes.

• 3. The Learned Trial Judge erred in law in imposing a sentence that was in breach of section 20(7) of the Constitution which prohibits the imposition of a punishment more severe than any available at the time of the commission of the offence."

The appellant's submissions

6 At the hearing of the appeal, Miss Anderson set out in detail the history of the relevant legislation, as well as the rules, which greatly assisted the Court in our deliberations. Her submissions revealed the following:

• (i) Since the enactment in 1951 of the Juveniles Act, persons under the age of 18 years convicted of murder, were detained during Her Majesty's pleasure in accordance with section 29(1) of the Act.

• (ii) In 1975, as a result of the decision of the JCPC in Baker v R [1975] AC 774, section 29(1) of the Act was amended to make it clear that the relevant age with regard to the statutory prohibition against the imposition of the death sentence on a juvenile was the age of the juvenile at the time of the commission of the offence, rather than at the time of...