Barbados Supreme Court

BARBADOS.

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Criminal Appeal No.20 of 2008

BETWEEN:

CLYDE DACOSTA CLARKE Appellant

AND

THE QUEEN Respondent

Before: The Hon. Sir David Simmons K.A., B.C.H., Chief Justice, the Hon. Peter Williams, and the Hon. Sherman Moore, Justices of Appeal

2009: 5 and 17 June; 10 November

Ms. Carol-Ann Best for the appellant

Mr. Roy Hurley for the respondent

DECISION

Introduction

SIMMONS CJ: This is an appeal against sentence on the ground that it is excessive. The appellant was indicted for the murder of Kera Boyce (the deceased) on 4 October 2006. On arraignment, he pleaded not guilty of murder but guilty of manslaughter. Chandler J sentenced him to 12 years' imprisonment.

Background

[2] The events leading to the death of the deceased are not complicated. They tell of unrequited love and killing in a rage. In outlining the facts to the sentencing judge, the Director of Public Prosecutions, Mr. Charles Leacock Q.C., explained that the appellant was a labourer on a construction site in St. James. The deceased shared a house nearby with another woman who sold food to the workers on the site. The appellant befriended the deceased and, it appears, became infatuated with her. She had no regular job and the deceased gave her weekly sums varying between $300 to $500.

[3] In his written confessional statement, the appellant said, inter alia, that on more than one occasion the deceased invited him for sexual intercourse. But, in fact, they never had sexual intercourse. Prior to the date of the murder, he had seen the deceased twice with another man. He confronted her about the association but there was no violence between them.

[4] On 23 September 2006 the appellant was on his way to work at the construction site in a minivan. He saw the deceased and her house-mate in the gallery of the house which they shared. The deceased had a towel wrapped around her. The appellant says that he disembarked from the van and he observed that the house was closed and the house-mate had gone. The appellant called the deceased on his cellular telephone. She did not answer. He then asked one of his fellow workers to accompany him to the house to see what was happening. They went to the house. The appellant pulled the blinds of the bedroom window which was open.

[5] What he saw enraged him. He observed the deceased in flagrante delicto. His statement recounted:

"I see she and a man on the bed naked. I say, "You spending my money and that is what you doing to me?" I get real vex and I climb in the house through the window. When I get in, the man chuck me. She ran out the bedroom into the house. I ran behind she and tell she that I don't deal with women who got men. Kera hit me in my stomach and we start fighting. I hit she a few times on she head with a piece of wood off the bed. She was spending my money and promising me pussy. She fall down on the floor. She was bleeding from she head. I jumped through the bedroom window and called my best friend and tell he what had happened."

[6] The deceased was taken to hospital in an unconscious state. She died on 4 October 2006 from severe traumatic head injuries received on 23 September 2006.

[7] Chandler J had for his consideration before passing sentence, a report of Ms. Dixon, a probation officer; a psychological assessment of the appellant conducted by a registered psychologist, Ms. Dianne Holder; and a medical report of Dr. Brian MacLachlan, consultant psychiatrist. Ms. Holder also gave oral evidence on which she was cross-examined by Ms. Carol-Ann Best, the appellant's attorney-at-law.

The Ground of Appeal

[8] Ms. Best deployed a variety of submissions in support of her contention that the sentence was excessive. We deal with them seriatim. First, it was submitted that the sentencing judge had not taken account of Ms. Holder's opinion that on the Global Assessment Functioning Scale (GAF), the appellant scored 40; indicating that he was a person without empathy, was impulsive and socially isolated. It was counsel's submission that these were special peculiarities going to mitigation. We reject this submission. At p.47 of the transcript of the proceedings, the trial judge intervened during Ms. Best's submission on the various reports. He was clearly alert to the contents of Ms. Holder's report.

[9] Then at pp.59-60, in the course of his sentencing remarks, Chandler J expressly said that he had taken into account the reports of Ms. Holder and Dr. MacLachlan. He observed:

"The report of Dianne Holder shows that you know that you are impulsive; you are aware of your personality and the difficulty of making friends."

With respect to Dr. MacLachlan's report, the sentencing judge said that it showed that -

"you did show some remorse for your actions. There are no significant reported psychological issues arising from your childhood or adolescence, no drug or illicit substance abuse….He recommends anger management counselling and so does the clinical psychologists."

[10] The second submission was that the sentencing judge took no account of the opinion of Ms. Holder that the appellant should undergo a period of treatment for "one to two years". This submission is without foundation. Immediately after imposing the sentence of 12 years upon the appellant, Chandler J said:

"It is further ordered that you undergo psychological counselling while incarcerated, with a view to assisting you to get over your anger problem. The psychological counselling will have particular reference to anger management."

[11] In her third submission Ms. Best criticised the sentencing judge for failing to take into account the appellant's alleged spontaneous action. The transcript shows that the sentencing judge mentioned that counsel had asked him to bear in mind the spontaneity of the appellant's actions. At p.58 of the transcript, the judge expressed the opinion, as he was entitled to do, that he did not think "that it could truly be said that this offence was spontaneous having regard to the evidence of Jacinta Scantlebury." It is clear that Chandler J did address his mind to the question of the spontaneity or otherwise of the appellant's actions.

[12] The fourth submission of counsel prompted a written rather than an oral decision on this appeal. It was that the learned judge erred in taking into consideration the evidence of Jacinta Scantlebury. The record of appeal contains no evidence given by Ms. Scantlebury, since the appellant had pleaded guilty. However, at p.57 Chandler J said:

"Having reviewed the entire file, I have noted that in the evidence of Jacinta Scantlebury, one of the deponents in this matter, she had overheard you saying negative things about the deceased. The words she said, if it was the case that Kera was involved in a relationship with someone and you had known it from the first time that you had started to talk, you would not be bothered. But that you felt used in the whole issue. And she said that you said, "I feel real fucking hurt about what Kera do to me, but she going to get what the fuck she deserves.' Her understanding was that that meant that you were going to do her something wrong."

[13] The issue raised by Ms. Best is this. Is it proper for a sentencing judge in Barbados to take into account evidence contained in the depositions of witnesses at the preliminary inquiry? Or, is the judge limited to a consideration of only those facts outlined by the prosecution and to which the defence took no objection? Mr. Roy Hurley, for the respondent, submitted that the sentencing judge was entitled to use his knowledge of the case gleaned from a perusal of the depositions.

[14] For as long as memory serves, the practice in Barbados has been that a trial judge receives, in advance of the date of hearing, the file containing the indictment and the depositions of witnesses at the preliminary inquiry. The judge is expected to read the file before trial in order to make himself/herself broadly conversant with the evidence as revealed by the depositions.

[15] It is not usual that a judge will be apprised of a defendant's likely plea upon a first reading of the file. Indeed our experience suggests that a judge will often read a file on the assumption that the trial will be contested. So, before the date of hearing, the conscientious judge will be, to some extent, familiar with the likely evidence.

[16] Where a defendant pleads guilty, it would be unrealistic to expect instant excision from the judicial mind of the facts and impressions imprinted on that mind during a pre-reading of the file. Thus, when the facts are outlined by the prosecution, the trial judge will have had some prior appreciation of them. Moreover, having read the file, there may be some aspect of the evidence which may strike the judge in a different way from the prosecutor.

[17] In R. v. Tolera [2001] UKHL 53; [1999] 1 Cr.App.R. 29, Lord Bingham CJ (as he then was) considered the procedure to be adopted on a plea of guilty. He pointed out that, ordinarily, sentence would be passed on the basis of the facts disclosed in the witness statements of the prosecution and the facts opened on behalf of the prosecution. Together, these could be called "the Crown case". In this jurisdiction, we would hold that relevant parts of the evidence on the depositions on the judge's file consistent with the plea and the outline of the facts by the prosecution, together constitute "the Crown case". And a sentencing judge is entitled to consider "the Crown case" when making up his mind on an appropriate sentence.

[18] Were a sentencing judge to be fettered by the prosecution's outline of facts only, the possibilities for injustice would be stark. To permit a sentencer to bring to bear on his sentence his own opinion of the facts assisted, of course, by counsel, may well be salutary and serve to be an insurance against a possible injustice or perversion of the course of justice. The English Court of Appeal has held that "the prosecution should not lend itself to any agreement whereby a case is presented to a sentencing judge to be dealt with….on an unreal and untrue set of facts" - R. v. Beswick [1996] 1 Cr.App.R. (S) 343 at 346. If the defendant has a version of the facts different from those outlined by the prosecution, he will, of course, be free to apply to the judge for a Newton hearing - see R. v. Newton 77 Cr.App.R. 13.

[19] However, although on a guilty plea a sentencing judge may make use of the evidence on the depositions to assist him in sentencing, the judge should nevertheless always be conscious of the basis upon which the prosecution accepted the plea. For example, where the prosecution on a charge of murder accepts a plea of guilty of manslaughter by reason of provocation, there are inferences which are readily deducible from the very fact that the plea was accepted on the basis of provocation - see Attorney General's Reference (Nos.74, 95 and 118 of 2002) (Suratan and Others) [2003] 2 Cr.App.R. (S) 42 which was recently followed in this jurisdiction in Ricardo Griffith v. The Queen (Criminal Appeal No.6 of 2007, unreported decision of 19 June 2009).

[20] In this appeal, the Director of Public Prosecutions accepted the plea of guilty of manslaughter because, as he saw it, this was "the classic case of provocation". In those circumstances the Suratan principles would apply.

[21] When the trial judge referred to the evidence of Jacinta Scantlebury to the effect that the appellant had told her that he intended to do Kera 'something wrong', and that he was relying on the file "notwithstanding everything urged" by the Director of Public Prosecutions, it seems to us that he was treating this evidence as being more consistent with murder than manslaughter. In our opinion, it was inappropriate for the sentencing judge to refer to this evidence in a manner which suggested inconsistency with the basis of the accepted plea. In fact, the trial judge exposed the fallacy in his approach when he said at p.57 - "I have to take the case in its totality in terms of what evidence there is which is available."

[22] In our judgment, a sentencing judge is entitled to rely not only on the outline of the facts by the prosecution but also on such evidence as is disclosed on the depositions as being consistent with the basis of a plea of guilty. Judges should be especially astute to avoid giving the appearance of relying upon critical evidence which may be inconsistent with the guilty plea. However, we make this observation: in Barbados, the practice does not exist whereby prosecution and defence counsel agree a written statement of facts to be presented to the court upon a guilty plea. In our view, it is a practice well worth adopting in this jurisdiction.

The Appropriate Length of Sentence

[23] Counsel's final submission was that the sentence was excessive in light of the guidelines set out by this Court in Pierre Lorde v. R. 73 WIR 28. Very recently, a differently constituted panel of this Court (Peter Williams, Connell and Moore JJA) specifically considered the approach to sentence required where a defendant pleads not guilty to murder but guilty of manslaughter in a domestic or quasi-domestic situation - Ricardo Griffith v. The Queen (supra). That panel dealt so extensively with the relevant considerations and authorities that it would be superfluous for this panel to repeat the discussion in that case in any detail.

[24] Nevertheless, we think it worthwhile to emphasise that where, as here, the Crown accepts a plea of guilty of manslaughter by reason of provocation, the starting point must be s.5 of the Offences Against the Person Act, Cap.141. Thereafter the sentencing judge should bear in mind the assumptions that ought to be made and were adumbrated in Attorney General's Reference (Nos.74, 95 and 118 of 2002) (Suratan and Others) (supra). Moreover, the sentencing judge should remind himself/herself that the Privy Council in Attorney General for Jersey v. Holley [2005] UKPC 23; [2005] 2 AC 580 has rejected the authority of R. v. Morgan Smith [2000] UKHL 49; [2001] AC 146 in respect of the law of provocation.

[25] In Holley, a House of Lords Bench of nine Law Lords held (6:3) that, for the purposes of the defence of provocation, a defendant is to be judged by the standard of a person having ordinary powers of control. At para.22 of his speech in Holley, Lord Nicholls of Birkhead said of the majority view in Morgan Smith:

"This majority view, if their Lordships may respectfully say so, is one model which could be adopted in framing a law relating to provocation. But their Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change ('develop') the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in s 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the provocation ('whether the provocation was enough to make a reasonable man do as [the defendant] did') is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'."

[26] In this appeal, Ms. Best pressed upon us that the report of Ms. Dixon referred to the poor relationship which the appellant had with his mother and the exchanges of verbal abuse between them. He was, however, not an aggressive person and he neither abused illegal drugs nor gambled. Our attention was drawn to statements from the mother of his child. She said that the appellant was in the habit of giving women money and, as a result, he assumed that he was in a relationship with them. He had an inaccurate perception of what it meant to be in a relationship with a woman. Ms. Holder said that he had difficulty with interpersonal skills and could not function well in formal or informal settings. He was impulsive and behaved without thinking through his actions completely. However, she found no personality disorder. The appellant's major reason for committing the crime was his anger and impulsive reaction.

[27] In our opinion, the following assumptions in favour of the appellant are to be taken into account. First, we assume, as the facts would indeed suggest, that the appellant did lose his self-control. However, mere loss of temper or jealous rage are not enough to satisfy s.5 of the Act. Secondly, we accept that his loss of self-control was the direct result of seeing the deceased naked in bed with another man. Thirdly, we have assumed that that loss of self-control was reasonable in all the circumstances. Finally, we assume that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the crime to manslaughter. The Director must have borne these matters in mind when he decided to accept the plea of guilty of manslaughter.

[28] However, paying due regard to the foregoing assumptions in the appellant's favour, we nevertheless remind ourselves that a human life was taken. It is axiomatic that only a custodial sentence will meet the justice of this case. Ms. Best argued for a sentence of 4 years. She relied upon the aggravating and mitigating factors identified by this Court in paras.[15] and [16] of Pierre Lorde. Thus, she urged upon us that there was no evidence of premeditation; no firearm was used nor had the appellant armed himself with an offensive weapon prior to entering the bedroom. In her submission, the appellant's actions were spontaneous; he had been provoked; there was some evidence that the deceased and her paramour had assaulted the appellant; and he had pleaded guilty and shown remorse.

[29] Mr. Hurley invited us to allow the sentence to stand. He submitted that the factors aggravating the offence outweighed any mitigating features. He pointed to the excessive force used by the appellant, the forced entry into the house, the weapon and the site of the blows inflicted upon the deceased. He said that the appellant's callous conduct after the offence implied an indifference to the gravity of the crime. In this respect, we note that the appellant left the deceased in an unconscious state for 5½ hours and made no attempt to summon medical assistance for her.

[30] Ms. Best submitted that this case was not within the Pierre Lorde guidelines which dealt with contested trials. Although that is a correct reading of Pierre Lorde, the earlier decision of this Court in Bend and Murray v. R. (Criminal Appeals Nos.19 and 20 of 2001, unreported decision of 27 March, 2002) is, in our view, more relevant to the facts and circumstances of this case. There, the appellants pleaded guilty to manslaughter and not guilty of murder. As a result of some earlier altercation and an alleged provocative act on the part of the deceased, the appellants set out from one parish to another, armed themselves with pieces of wood and bludgeoned the deceased to death in a public place. The sentence of 12 years was upheld by this Court.

Conclusions

[31] In our judgment, the relationship between the appellant and the deceased had not fructified into one of such intimacy as to be characterised as "domestic" or "quasi-domestic". The appellant made the unrealistic assumption, no doubt engendered by his personality deficiency, that he was involved with the deceased more deeply than was the case. Thus, legal authorities whose facts pertain to genuine domestic situations are not helpful to our determination of the appropriate sentence in this case. For our part, we have applied a starting point of 17 years and given credit for the early guilty plea, the time spent on remand and for the remorse expressed by the appellant.

[32] We have weighed the aggravating and mitigating factors. We look askance at the fact that the appellant left his workplace and went to the deceased's residence and broke and entered. Even if he lost his self-control, a high degree of culpability must still be attributed to him for his actions.

[33] Notwithstanding our comments in para.[21], we are not persuaded that the sentencing judge erred in principle or extent in arriving at his sentence. The remarks of the sentencing judge in respect of Jacinta Scantlebury were inappropriate but, in our opinion, they did not cause him to inflate the sentence. This was a bad case deserving of a reasonably long sentence. The sentence was, in all the circumstances, proportionate to the seriousness of the offence and not manifestly excessive.

Disposal

[34] The appeal is dismissed. The sentence is affirmed and will begin to run from 6 August 2008.

Chief Justice

Justice of Appeal Justice of Appeal