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Trinidad and Tobago Court of Appeal |
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CrA. NO. 29 of 2004
CHUCK ATTIN APPELLANT
AND
THE STATE RESPONDENT
PANEL:
S. Sharma, C.J.
M. Warner, J.A.
S. John, J.A.
APPEARANCES:
Mr. B. Dolsingh for the Respondent
DATE DELIVERED:
14 th October 2005
Delivered by S. Sharma C.J.
This is the judgment of the Court.
S. Sharma,
Chief Justice
1. On the 23 rd June 2005 we dismissed the appellant’s appeal against the order of Volney J. made on the 20 th April 2004, whereby he ordered that the punitive element of the appellant’s sentence should be set at twenty-five years. We also indicated that we would allow the appeal against that part of the order which, in effect, fixed the period for review after the expiration of the sentence.
We now give our reasons for so doing and, give directions as to the manner in which further reviews should proceed.
2. Introduction
Chuck Attin, (the appellant), and his co-accused Noel Seepersad, were convicted on the 7 th February 1997 of the murder of Candace Scott and Karen Sa Gomes. Seepersad was sentenced to death by hanging.
3. The appellant was 16 years old when the murders were committed and he was sentenced by the trial judge, Jones J. as he then was, to be detained ‘during the State’s pleasure,’ pursuant to Section 79 of the Children’s Act Chap 46:01 (the Children’s Act) which provides as follows –
“Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during the State’s pleasure, and, if so sentenced, he shall be liable to be detained in such place and under such conditions as the Minister may direct, and whilst so detained shall be deemed to be in legal custody.”
4. The provision is identical to Section 103 of the Children’s Act 1908 of England. (It is to be noted that in England this section was re-enacted and amended by section 53(1) of the Children and Young Persons Act 1933). The underlying objective of the legislation is to protect young offenders from the full penalty of the law as it applies to adults.
The State maintained a discretionary power to release the detainee on licence under section 81 of the Children’s Act which provides –
“(1) A person in detention pursuant to the directions of the Minister under section 79 and 80 may, at any time, be discharged by the Minister on licence.
(2) A licence may be in such form and may contain such conditions as the Minister may direct.
(3) A licence may at any time be revoked or varied by the Minister, and, where a licence has been revoked, the person to whom the licence related shall return to such place as the Minister may direct, and if he fails to do so may be apprehended without warrant and taken to that place.”
5. The procedure to secure release from detention is as follows –
The Prison Authorities, after having carried out a review would in a proper case, make a recommendation to the Minister of National Security. An Advisory Committee, which operates under the aegis of the Minister then makes recommendations to the President for the detainee’s release, as they consider appropriate. In addition, the Ministry of National Security from time to time, submits a list of names of inmates to the Commissioner of Prisons for similar consideration.
6. The constitutional motion filed by the appellant
In 2003, the appellant filed proceedings in the constitutional court in which he challenged the constitutionality of sections 79 and 81. Mendonca J., as he then was, ordered that the sentence of Jones J. be varied to read that the appellant be detained ‘at the court’s pleasure’ and he remitted the matter to a court sitting in its criminal jurisdiction for a ‘review’ of the appellant’s detention.
7. Proceedings before Volney J.
The matter came before Volney J. sitting in the criminal jurisdiction, and this was an appeal against his order. Volney J. ordered that the appellant be detained for twenty-five years after which he should be brought back for review. He further ordered that the ‘tariff period’ should be calculated from the 7 th February 1997, the date of conviction.
8. The development of the law in relation to children and young persons convicted of murder
In Browne (Greene) v The Queen [2001] 1 AC 45; Director of the Public Prosecutions v Mollison [2003] UKPC 6; [2003] 2 A.C. 411 and Griffith & Others v The Queen 2004 UK PC 58 , the Privy Council, in construing provisions similar to sections 79 of the Children’s Act, in the jurisdictions of St. Christopher and Nevis, Jamaica and Barbados, held essentially that an indeterminate sentence of detention which fell to be reckoned by the executive, violated the constitutional principle of the separation of powers.
9. In Browne , the Privy Council advised that the sentence which the young offender should have received was detention during the ‘ court’s pleasure.’ Lord Hobhouse in delivering the advice of the Board said -
“The sense and purpose of the concept ‘during pleasure’ is that it is not a once-and-for-all assessment that is made at the time that the defendant is first before the court after his conviction. Its purpose, as was pointed out in Ex parte Venables (particularly by Lord Browne-Wilkinson at page 499 and 500) is that it enables the position to be reviewed from time to time. The submission of the appellant that he should have received a determinate sentence runs counter to that purpose and the proper objective of the proviso. The sentence which he should have received was detention during the court’s pleasure, and that is the sentence which must be substituted. However, in view of the passage of time between his conviction and the time that he will, pursuant to this opinion, return to be re-sentenced, it is to be recognised that, after having passed the sentence of detention during the court’s pleasure, the court may consider that the stage has been reached in the appellant’s rehabilitation and maturity where an order pursuant to that sentence can be made by the court which will limit the length of his further detention.”
10. In Mollison their Lordships expressed the view that under the relevant provisions, if a defendant is aged fourteen to sixteen at the time of a conviction for murder, the trial judge may either impose a sentence of detention during the court’s pleasure under section 29(1) of the Juveniles Act 1981 as amended, or a sentence of detention for a specified period under section 29(3). (In the case under review, the provisions of section 29 (3) were inapplicable).
11. Griffith was determined in December 2004, after Volney J’s. order was handed down. Their Lordships allowed the appeals of four appellants (young offenders) and remitted their cases to the High Court for the court to sentence the appellants to be detained until it directed their release. Their Lordships were however, “content to leave it to the judges and officials in Barbados to devise a system for operating such sentences that suited local conditions.” It was also noted that a sentence of that kind required that the court review the question of the detainee’s release at appropriate intervals . We propose in this judgment to give directions as to the manner in which reviews ought to be conducted.
The development of the law in England has been reviewed extensively in Secretary of State v Smith [2004] EWCA Civ 99 (11 February 2004) and more recently, on appeal to the House of Lords (See R v Secretary of State ex parte Smith [2005] UKHL51, 28 th July 2005 ). In the House of Lords, it was held that the progress of a child or young person sentenced to detention during her Majesty’s pleasure for murder before 20 th November 2000, whose minimum term had been set by the Lord Chief Justice should remain subject to continuing review for the minimum term.
Counsel for the respondent presented to us a summary of the case for the State, as elicited at the trial in 1997. The appellant’s counsel did not dispute any of the following version of the facts.
On 11 th July 1994 a young woman hereafter referred to as ‘A.S.’ was employed by Jonathan and Candace Scott at their home in Westmoorings. Her duties included caring for the Scott’s baby son. At about 11:00 a.m. on that day, ‘A.S.’ responded to the bell, and as a result she saw the appellant and Seepersad. They informed her that they had come to do a painting job. She telephoned Jonathan Scott and after conversing with him, told the appellant and Seepersad that her employer did not require their services. When ‘A.S. was returning to the house she was pushed indoors. She turned around and saw the appellant, who told her to co-operate, or he would kill her.
The appellant took her into the house and made her sit outside of the master bedroom, while Seepersad searched it. They both carried cutlasses.
13. On two occasions ‘A.S.’ observed the appellant speaking on the telephone. The deceased Candace Scott telephoned the house at some stage and spoke to ‘A.S.’ in the presence of the intruders. After the telephone call ‘A.S.’ informed the appellant that Mrs. Scott would be returning home shortly. The appellant replied that he was not leaving until she came. The appellant warned ‘A.S.’ not to identify him should she see him again. During this period Seepersad packed items of jewellery and other personal effects of the Scott’s into two travelling bags.
14. At about 2.00 p.m. Candace Scott returned to her home and she was ambushed by Seepersad as she walked into the master bedroom. Seepersad, with cutlass in hand, held Candace Scott by her hair while the appellant grabbed her handbag. The appellant searched it and found bankcards. He ordered Candace Scott to give him the codes for the cards. Seepersad went downstairs and returned shortly after to the master bedroom, bringing with him, the young daughters of Candace and Karen, who had been in the car. Karen Sa Gomes arrived shortly after in a blue Lancer motor car registration number PAN: 3095. She too was ambushed and brought to the master bedroom.
15. During the ensuing three hours, the two men, apart from threatening and torturing the three defenceless women, carried out a thorough search of the premises. Seepersad also consumed food.
During the raid they both trekked up and down the stairs from time to time, and on one occasion, the appellant returned with a chopper normally kept in the Scott’s kitchen. When the appellant discovered from an identification card he found in ‘A.S.’s bag that she had earlier given him a false name, he slapped her on the face with the flat side of the chopper. The baby, who was in ‘A.S.’s’ arms began to cry. The appellant ordered ‘A.S.’ to ‘shut ’ up ’ the child or he would kill him. Seepersad was in the same bedroom, two to three feet away when the appellant spoke to her. Shortly after this attack, the appellant and Seepersad raped ‘A.S.’ in turn.
16. The appellant then dragged Karen Sa Gomes out of the bedroom. He was armed with the chopper. ‘A.S.’ heard her say in a loud tone of voice ‘don’t touch me, don’t touch me, you promised you all wouldn’t hurt me’ and this was followed by the sounds of a struggle.
17. Shortly after, the appellant, still armed with the chopper, returned to the master bedroom. He said that he had just tied up Karen Sa Gomes downstairs. He then took Candace Scott out of the room leaving ‘A.S.’ and the three young children. The two men subsequently left in Sa Gomes’ car taking with them stolen items of jewellery and other personal effects.
18. When the police and the deceased’s relatives arrived shortly after, they discovered the bodies of Karen Sa Gomes and Candace Scott. The naked body of Candace Scott was found with an electric cord tied around her neck together with a dark green ribbon. Her neck bore a deep chop wound. In an adjoining bathroom, the body of Karen Sa Gomes was found with her neck twisted and with a black electrical cord wrapped around her neck. Post mortem examinations conducted two days thereafter by a forensic pathologist revealed that in both cases, the cause of death was asphyxiation due to ligature. Additionally, in the case of Candace Scott, there were two stab wounds on the side of her neck together with a deep incised wound which had cut straight through to the vocal cords. An additional cause of her death was haemorrhage and shock.
‘A.S.’ was medically examined on the same afternoon and vaginal swabs taken from her indicated the presence of human spermatozoa.
19. Apart from identification evidence of ‘A.S,’ the appellant’s fingerprint impressions were found on the chest of drawers in the bedroom. Evidence was also adduced that Seepersad was seen driving Sa Gomes’ car, on the same day of the murders, and that the appellant was a passenger.
The evidence against the appellant and Seepersad was cogent and overwhelming. The crimes were horrific and citizens expressed their outrage passionately, in several forums.
20. Of importance, in our view, was the fact that there was absolutely no complaint that the appellant had been denied the opportunity to call further evidence in mitigation during the sentencing hearing before Volney J.
21. The ‘tariff’
The concept of ‘the tariff’ was first introduced in England on the 13 th November 1983 when the Secretary of State made a statement in Parliament to the effect that he would, in consultation with the judiciary, fix a period in the case of life sentence prisoners, to meet the requirement of retribution and deterrence, for each individual.
This concept was revisited in 1987 when the incumbent Secretary of State announced in a Parliamentary Statement that, in the case of both discretionary and mandatory life sentences, the trial judge would be asked to write to him, through the Lord Chief Justice, with his view of the period of imprisonment necessary to meet the requirements of retribution and deterrence; the Lord Chief Justice would add his own view. The tariff would then be determined having regard to those views, and the first formal review by the Parole Board machinery would normally take place three years before the expiry of that period.
22. The case of
R v Secretary of State for the Home Department, ex parte Venables [
1997] UKHL 25; [1998] AC 407
was one of the most publicised in recent times.
Thompson and Venables
were 10½ years old when they abducted a 2 year-old child in a most sadistic manner. For the purposes of this appeal, of importance
is that part of the court’s judgment in which the court reasoned, that, even if a provisional tariff is set to reflect the
elements of punishment and deterrence, the position of the offender must be kept under review.
Thompson and Venables successfully challenged the practice of the Secretary of State’s setting the tariffs in the European Court of Human Rights. The court held that the Home Secretary was not independent of the executive and accordingly, there had been a violation of Article 6 (1) which guaranteed a fair hearing by an independent tribunal.
23. As a result, on the 27 th July 2000, the Chief Justice issued a Practice Direction as to the manner in which the setting and review of tariffs ought to be approached. This was replaced by a Practice Statement of 31 st May 2002. The Statement recommended instead, the use of the expression ‘minimum term,’ to make it clearer that, even when released, the offender has not served his sentence which continues for the remainder of his life.
The expression ‘tariff’ was however introduced to Volney J. and has been urged by counsel in this appeal. We would however, prefer to avoid its adoption for obvious reasons.
24. When the matter was argued before Volney J., counsel brought the provisions of Rule 281 of the Prison Rules to the attention of the court.
Rule 281 of the Prison Rules provides –
“The case of every prisoner serving a life sentence shall be reviewed by the President at the 4 th , 8 th , 12 th , 16 th and 20 th year of the sentence.”
“The case of every prisoner serving for a terms of imprisonment exceeding four (4) years shall be reviewed by the President at intervals of four (4) years or at shorter periods if desirable.”
These Rules do not apply to young offenders, however, in the appellant’s case, the Prison Authorities did carry out a ‘review,’ in keeping with their procedure.
25. The grounds of appeal
The following grounds of appeal were filed on the appellant’s behalf –
“ Ground 1 The trial judge erred in law in failing to review the tariff of the Appellant.
Ground 2 Trial counsel for the Appellant failed to properly put the case for the Appellant thereby depriving the Appellant of a fair trial.
Ground 3 The trial judge erred in law by regarding the tariff as fixed and not flexible.
Ground 4 The trial judge erred in law by failing to adequately take into consideration the sentencing factors of the appellant’s welfare and rehabilitation under Section 79 and thereby misconstrued Section 79 of the Children’s Act Chapter 46:01.
Ground 5 The trial judge erred in law by taking into account irrelevant considerations in setting the tariff.
Ground 6 The tariff of 25 years without a review was manifestly excessive and unlawful.
Ground 7 The trial judge erred in law in considering inadmissible evidence i.e. the MMP1-2 report administered by Dr. Krishna Maharaj.”
The appellant’s complaints, in summary, were that the sentence of twenty-five years, referred to as ‘the tariff’ was excessive and that Volney J. ought to have ordered that the sentence be reviewed at periods prior to its expiration. Further, that the trial judge had not carried out a proper sentencing hearing, in that he had not taken into consideration the objectives of welfare of the offender and his possible re-integration into society. There was also objection to the admission of the report of the report of Dr. Krishna Maharaj, a consultant psychiatrist.
26. Grounds 1, 2, 4, 5, and 7 will be taken together.
The learned judge was presented with a comprehensive probation officer’s report; reports from a consultant psychiatrist, a Prison Welfare Officer, a Senior Superintendent of Prisons and a Forensic Psychology Report, material which would have been relevant both on sentencing and on review. The gravamen of these reports was that the appellant had chosen not to avail himself of programmes operating in the Prison system which were geared towards improving his education, religiosity and life skills. He participated in football and basketball in some small measure. He believed that he had ‘paid his debt to society’ but was never remorseful. Overall, all the professional officers who had interacted with him, during his incarceration reported negatively about his progress.
In examining the sentencing exercise, we focused our attention on the context and substance of the exercise rather than on its form and the terminology used. The assessment of the minimum term was, in fact, part of a “review process.” It is not material, in our view, that in this case, both sentencing and review were carried out simultaneously. The material which the learned judge examined would have been relevant both on sentencing and review. Volney J. was not involved in determining guilt or innocence. The exercise was not comparable to charging a person with a criminal offence. (See dictum of Lord Woolf in Huntley v Attorney General of Jamaica [1995] 2 AC1).
27. The Probation Officer summarized her recommendation thus -
“Having regard to his very criminal disposition and his blatant disregard for societal norms and legal imperatives, it is likely that he possesses the potential to create further havoc in a society already traumatized by almost daily perpetration of very serious crimes against the general public.”
Volney J. remarked that he was mindful that he had to -
“consider punishment on the basis of his tender age of 16 not withstanding his calculated and deliberate conduct leading up to his interdiction and conviction."
We, therefore, are not in agreement with Mr. Seepersad’s submission that Volney J. had failed to consider the appellant’s welfare and rehabilitation. The crime was heinous, and, while the court had to consider the appellant’s rehabilitation, the factors of punishment and deterrence had to be taken into account. In our view, the sentence was not manifestly excessive or wrong in principle. The stark reality is that after eight years of incarceration, there has been little or no change in the appellant’s character.
28. As regards ground 7, which concerns the tests administered by Dr. Maharaj, it is generally accepted that in a sentencing exercise, the rules of evidence in relation to character evidence are relaxed. In that connection, we draw attention to the case of R v Marquis [1951] 35 Cr. App. 33 at 35 where Goddard L.C. J. had this to say –
“The other thing to which I desire to call attention is that the learned Recorder seems to have had some doubt whether he could accept what he called ‘hearsay evidence’ of character after conviction. Of course he could, because after conviction the Court is always informed of the character which the prisoner bears, and that character is very often proved by a police officer perhaps in Devon referring to convictions which have taken place in Northumberland, or Yorkshire, or anywhere else. He cannot speak of his own knowledge about them, but he can produce the prisoner’s record, and it is always perfectly proper to take into account any information which can be given, either for or against the prisoner, although the matter is not proved with the strictness which would be necessary to prove an issue during the trial. It would be a very unfortunate thing if evidence of that kind could not be given because it would prevent evidence from being given in favour of the prisoner, and would prevent a police officer from saying: ‘I have made inquiries of the prisoner’s employer, he works well and his character is good.’ After conviction, any information which can be put before the Court can be put before it, in any manner which the Court will accept. There is nothing in this appeal, and it is dismissed.” (Emphasis added)
We think that the same approach could usefully be adopted in considering reports of professional persons, which are presented to the court for the purposes of reviewing a sentence. In that regard, we are of the opinion that the report of Dr. Krishna Maharaj, although hearsay, must be considered.
29. In our respectful view, the exercise which was carried out by Volney J. in the instant case did generate the type of material which would have enabled him to review the appellant’s progress. We have no doubt that other relevant information relating to the appellant’s progress will be produced from time to time. A child or young offender remains subject to the jurisdiction of the court. However, in this case, clearly reintegration of the appellant into the society at the present time, is not at all an option.
30. Review Procedure
In formulating these direction we have followed, in principle, those issued by Sir David Simmons C.J., sitting in the Court of Appeal of Barbados in the case of Mormon Scantlebury v the Queen Cr.App. 34 of 2002 (unreported) . This was done as a result of the advice of the Privy Council in Griffith (above).
Subsequently, on the 10 th August 2005, the Chief Justice of Barbados applied them to Griffith and as a result, all the four prisoners were ordered to be released. (See Griffith & Ors. (sentencing), unreported dated 10 th August 2005). The list of aggravating and mitigating circumstances, as set out in the English Criminal Justice Act 2003, was adopted.
31. We therefore direct as follows -
1. Where a person, under the age of 18 at the date of the offence, has been subsequently convicted for murder, he/she shall be sentenced to detention ‘during the Court’s pleasure.’
2. At the time of the imposition of such a sentence, the trial judge must state in open court what he/she considers to be the appropriate minimum sentence (the tariff) to be served. In making a determination of the minimum sentence the court must take into account –
a) the penal objectives of retribution and general deterrence;
b) the seriousness of the offence;
c) the principle of individualised sentencing;
d) any aggravating or mitigating factors; and e) any other relevant matters.
3. The trial judge must state in open court his/her reasons for making the order.
4. Aggravating factors relevant to a charge of murder include –
a) planning and premeditation;
b) taking advantage of an elderly or disabled victim;
c) causing torture of suffering to a victim before death;
d) killing a person providing a public or security duty;
e) treatment of the deceased after death.
5. Mitigating factors relevant to a charge of murder include –
a) an intention only to do serious bodily harm;
b) spontaneous action rather than premeditation;
c) mental disability;
d) the age of the offender.
6. Sentences to be served ‘during the Court’s pleasure’ must be reviewed by a judge of the High Court at 3-yearly intervals, or at shorter intervals if exceptional circumstances arise. An oral hearing will not normally be required unless the Chief Justice thinks that this is necessary. The decision ought however, to be announced in open court. (See 7. For the purposes of a review of sentence, the Court must be provided with –
i) a full report on the offender from the Superintendent of Prisons addressing the conduct of the offender during detention; his/her responses to the punishment and any counselling and/or rehabilitative programmes sponsored by the prison authorities; his/her attitude to the crime, for example, genuine sorrow and remorse; any recommendations by the Superintendent for the guidance of the Court;
ii) a report from the Chaplain of the Prisons detailing the offender’s response to any moral and/or religious teaching;
iii) an up-to-date medical report from a medical practitioner assigned to the Prisons;
iv) such other information derived from the record of the case or otherwise as the Court may require.
v) Information relating to the progress and development of the young offender ought to be generated by the appropriate department in the prison, at yearly intervals.
vi) all relevant reports are to be transmitted to the Registrar of the Supreme Court for the purpose of review, every three years. The Registrar must forward the reports to the Chief Justice who will fix the matter for review before a judge, or delegate the task of fixing the matter for review, to another judge.
We recognize however, that in the exceptional case, a review may be required at shorter intervals. An oral hearing will not normally be required, unless the Chief Justice thinks that is necessary. (See R v Secretary of State for the Home Department (exparte) Dudson [2005] UK HL 52 ).
32. Quite apart from the relevant International Conventions to which the State may be a party, there can be no doubt that penal sanctions imposed on children or young offenders who are detained at the court’s pleasure cannot be harsher than those imposed on adults who are serving life sentences.
33. Conclusion
Recent authorities have consistently emphasized the concept of continuing review of the progress made by young offenders.
We think, therefore, that the trial judge erred when he ordered that there be no review until after the expiry of the twenty-five year sentence. In this regard therefore, we agree with Counsel’s submission in regard to grounds 3 and 6. We were however of the view that grounds 1, 2, 4, 5 and 7 were without merit.
34. The appellant, therefore, has succeeded in part in that we hold that his detention must be reviewed periodically - that is to say, at least once every three years or at shorter intervals if exceptional circumstances so warrant.
The provisional sentence of twenty-five years takes effect from his date of conviction so that he has already served a significant part of his sentence. His appeal against the severity of sentence, as it relates to the minimum period of twenty-five years referred to as ‘the tariff’ has already been dismissed.
We wish to point out however, that as the law stands, it is clear that appropriate legislative provisions must be enacted in order to further clarify and streamline the procedure for review. In the interim, we are content to adopt substantially, the approach of the courts of Barbados, which have already responded to the advice of the Privy Council in Griffith
35. We have been informed that at present there are young offenders, who are, at present, detained at the State’s or the court’s pleasure.
In this connection, there are four categories of young persons affected -
i) those who were ordered to be held subject to the ‘State’s pleasure’ - (now the court’s pleasure). They ought to be brought before the court for their ‘minimum sentences’ to be fixed.
ii) those who were ordered to be held ‘subject to the court’s pleasure’ must also have their ‘minimum sentences fixed’ by the court.
iii) young persons who have been convicted and are awaiting sentence.
iv) where minimum sentences have been fixed, then the provisions for review will apply to the young offenders.
36. We therefore direct that the Prison Authorities take appropriate action in relation to all other young offenders whose sentences must now be fixed or reviewed.
Margot Warner,
Justice of Appeal
Stanley John,
Justice of Appeal
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