Worrell Wint v R

• Jurisdiction: Jamaica
• Judge: Edwards JA
• Judgment Date: 22 March 2019
• Neutral Citation: JM 2019 CA 53
• Date: 22 March 2019
• Court: Court of Appeal (Jamaica)

[2019] JMCA Crim 11

SUPREME COURT CRIMINAL APPEAL NO 26/2014

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA

Worrell Wint

and

R

Ravil Golding for the applicant

Miss Patrice Hickson for the Crown

Criminal Law - Wounding with intent — Appeal against sentence — Whether 25 years' imprisonment at hard labour was manifestly excessive.

Edwards JA

1 This is an application for leave to appeal against sentence only. The applicant was tried in the Trelawny Circuit Court by Gayle J sitting with a jury, on an indictment containing one count for the offence of wounding with intent. He was convicted and sentenced to 25 years imprisonment at hard labour. His application for leave to appeal against his conviction and sentence was considered by a single judge of this court and was refused. The single judge of appeal saw no basis on which to disturb the conviction and sentence. The applicant has renewed his application before this court, as he is permitted by law to do.

2 At the hearing of the application, counsel Mr Ravil Golding, frankly and admirably, we believe, conceded that an examination of the judge's summation revealed no basis to launch a challenge to the applicant's conviction. Counsel, on behalf of the applicant, requested and was granted permission to abandon the original grounds of appeal filed against conviction and sentence, and to argue the supplemental grounds of appeal against sentence, filed 10 January 2019. He, therefore, argued that based on the supplemental grounds of appeal, the sentence of 25 years, imposed on the applicant, was manifestly excessive.

The grounds of appeal

3 The supplemental grounds of appeal were:

• “a. The learned trial Judge erred when sentencing the Applicant to twenty-five (25) years imprisonment at hard labour which sentence is manifestly excessive and outside of the range of sentences as contained in the now Sentencing Guidelines for Judges of the Supreme Court and Parish Courts of December 2017;

• b. The learned trial Judge fell into error because he failed to take into consideration some of the factors relevant to sentencing of convicted persons.”

The facts

4 The events which led to the arrest, charge and conviction of the applicant were undeniably startling. This summary of the facts is taken from the learned trial judge's summation. On the night of 4 July 2010, the applicant and the complainant were gambling, when a dispute arose between them over the ‘princely’ sum of $50.00. They both “collar up”, which is a colloquialism for the fact that they both held on to each other. They were parted and warned to behave. The evidence was that the persons in the shop tried to push the complainant outside, but he held onto the applicant and dragged him outside. The complainant then moved to a window on the outside and the applicant was heard threatening to kill him. The applicant was then seen moving towards the complainant and hitting at the complainant in his head. The complainant staggered and fell to the ground. The applicant stood over him, and held his chin, “going down with a knife to stab him”. The applicant was asked whether he was going to kill the complainant to which the applicant is supposed to have said “[k]ill him yaa, because everybody in di shop and nobody to split the difference” or words to that effect. The complainant was unarmed.

5 The applicant stabbed the complainant several times. Two of the resulting injuries to the head and back proved to be near fatal. The complainant suffered debilitating injuries to his brain and lung.

6 Three doctors gave evidence at the trial outlining the injuries suffered by the complainant. Dr Christopher Fletcher gave evidence that he was in the accident and emergency section of the Percy Junor Hospital when the complainant was brought in. Several doctors attended to the complainant that night, and he was one of them. The complainant was unconscious and had lost a lot of blood. He had multiple lacerations to his body. He had lacerations to the forehead, chin, two deep lacerations to the left arm, one deep wound to the left upper back penetrating the lung, and a deep wound to the left side of the head, penetrating the brain. The wound to the left side of the head and the one to the back were very serious and resulted in serious complications. The doctor's evidence was that great force was used to get past the skull into the brain, and great force was also used to penetrate the fat and bones to get to the lungs.

7 Various complications arose from those wounds. Due to the wound to the left foetal skull, the complainant's conscious level fell and he was unable to effectively communicate, that is, “he could not say where he was, who he was with, who he was talking to”. He had weakness to the right upper limb, and his lung was also punctured preventing air from getting inside. The latter injury required immediate surgery. The stab wound to the brain, Dr Fletcher said, would have disabled the complainant immediately. The wound to the lung would also have had a disabling effect but not as immediate.

8 Dr Ghazzan Ahamad also gave evidence. He too saw the complainant at the hospital on the night of the incident when he was brought into the Accident and Emergency section. He said he saw him again on 10 July 2012. At that time, the complainant had to be treated for seizure, secondary to a penetrating head trauma. The complainant could not communicate but was able to understand “some things”. The description given by Dr Ahamad of the complainant's condition some two years after the incident may be summarised as follows:

• i. weakness in the right upper and lower limbs;

• ii. facial weakness;

• iii. a surgical scar to the left side of the head, and another non-surgical scar beside the surgical scar;

• iv. a scar relating to surgical drainage inserted in the left chest to decompress the collapsed lungs, and another non-surgical scar to the upper back;

• v. bruises to the left knee and forehead; and

• vi. incoherency.

9 A third doctor, Dr Rory Dixon, gave evidence that he is an orthopaedic surgeon specializing in bones. He saw the complainant at the Sir John Golding Rehabilitation Clinic on 17 August 2010. At that time, the complainant had several scars, and was weak on the right side, both in his upper and lower limbs, and he had difficulty speaking. His right upper leg was paralysed. There was little improvement in speech, despite speech therapy, and he concluded that the complainant would have a speech impairment for the rest of his life. He could only walk with assistance, the weakness in his right upper limb was permanent, and his right arm would never function again. The doctor found that the complainant was brain damaged in an area of his brain which affected his ability to speak, and he concluded that the complainant would never be able to walk or speak properly again. The complainant would also be required to take medications to prevent seizures. He had lost 60% of his total bodily function.

10 The injuries left the complainant so severely incapacitated that he had to use a walker to amble about, assisted by others, and his speech was permanently impaired.

11 The applicant's version of the events was that an incident did take place with the complainant, but he claimed the complainant was the aggressor. In his cautioned statement to the police, he said:

“Mi hold on pon di wall and him pull mi off di wall and two of us drop. After mi drop, mi see a knife… and mi pick it up. Di man get on top of mi and start to lick mi in a mi face and lick mi all over and then mi start to fist him wid di knife in a mi hand. After mi start to lick back, mi find sey di man let goh mi.”

12 The applicant gave an unsworn statement in which he claimed that after a quarrel and minor tussle with the complainant about money, the complainant took something from his pocket and threatened to kill him if he did not get back his money. He also said he was pulled outside by the complainant and they both fell and a knife dropped. He held the knife whilst they wrestled. The complainant ‘fist’ him in the face all over and he ‘fist’ back the complainant, who then let him go and he ran off.

13 He admitted several previous convictions, one of which was for unlawful wounding for which he was sentenced to 12 months imprisonment in 1998, and another for malicious destruction of property, for which he received a suspended sentence in 1995. There was a more recent conviction in 2012 for simple larceny, which the judge did not mention in his sentencing remarks. The remaining two convictions were for ganja which the judge also did not consider in arriving at his sentence.

Submissions

For the applicant

14 Counsel for the applicant submitted that the principles and guidelines relating to sentencing have been set out in a number of decisions in the court, notably in Meisha Clement v R [2016] JMCA Crim 26, Demar Shortridge v R [2018] JMCA Crim 30 and Jason Palmer v R [2018] JMCA Crim 6. He pointed out that the Sentencing Guidelines for Use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017 (the Sentencing Guidelines), which are now of ‘some importance’, were not in existence in 2014 when the applicant was tried and convicted. Counsel argued that by virtue of the principles enunciated in the cases, and by virtue of the Sentencing Guidelines, the sentencing judge “is not at large”. Counsel pointed to the recognition in the guidelines of the need for greater objectivity, transparency, predictability and consistency in sentencing.

15 Counsel submitted that based on the authorities and the Sentencing Guidelines, the trial judge should seek to ascertain the normal range of sentences for that kind of offence, and having identified the norm, he should look at any aggravating and mitigating factors affecting the commission...