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The State v Nicholas, Alexander, D. J.; Tan, Gregory; Lewis, Oren. [2012] TTHC 211 (14 December 2012)

REPUBLIC OF TRINIDAD AND TOBAGO Cr. S. No. 26/06 & No. 109 of 2007

^{IN THE HIGH COURT OF JUSTICE}

SAN FERNANDO (Sub Registry)

THE STATE V

ALEXANDER DON JUAN NICHOLAS (1) GREGORY TAN (2) OREN LEWIS (3)

MURDER

RULING ON SENTENCE

BEFORE: The Hon. Mr. Justice A. Mon Désir

APPEARANCES:

Ms. S. Dougdeen- for the State

Mr. L. Sanguinette- for Alaxender Don Juan Nicholas

Mr. R. Valere, instructed by Ms. M. Bubb- for Gregory Tan

Mr. L. Williams- for Oren Lewis

Delivered: December 14, 2012

INTRODUCTION

1. This is the Court’s ruling on sentence in respect of Indictment No. S-26 of 2006 (the murder of Jerry David Boodoo) and Indictment No. 109 of 2007 (the kidnapping, robbery with aggravation and false imprisonment of Nazim Dean). I will deal first with Indictment No. S-26 of 2006.

Indictment No. S-26 of 2006- The Murder of Jerry David Boodoo

2. On September 23, 2002, Alexander Don Juan Nicholas, Gregory Tan and Oren Lewis (hereafter referred to as “Accused No. 1”, “Accused No. 2” and “Accused No. 3” respectively), were jointly charged with the offence of murder. The particulars of that offence are that, on a day unknown between August 26, 2002 and September 2, 2002 at Mayaro, they murdered one Jerry David Boodoo.

HISTORY OF MATTER

3. Due to the uniqueness, complexity and unprecedented nature of this case, I consider it important to first set out the relevant chronology of events that have culminated in the Court’s decisions as regards the sentences handed down in this matter.

Case Management Conferences

4. The Court robustly managed these proceedings from the inception with a view to distilling at a very early stage the main issues in the case. As a result of this, it became clear that the evidence upon which the State’s case was founded were the testimony of a man named Junior Barthol, the caution statements of the three Accused and the interview notes of Accused No. 2.

Jury Empanelled and Accused Put in Their Charge

5. The Jury were empanelled and the three Accused were put in their charge. However, due to the fact that Counsel urged the Court to hear preliminary objections to the admissibility of the caution statements of the three Accused, these arguments were heard in the absence of the jury before the State opened its case. This course of action was desirable in this case

because the State sought to rely heavily on the oral and written caution statements of each Accused and the Court took the view that it would be more appropriate for all parties to know beforehand if the State would be allowed to rely on such evidence.

The Voir Dires

6. Following the objections raised by Defence Counsel for each of the Accused to these caution statements being admitted into evidence, voir dires were held to determine their admissibility. On September 19, 2012 the Court ruled that all of the statements were given voluntarily and they were therefore admitted into evidence.

7. Thereafter, on the same day, State Counsel disclosed to the Court that having regard to the Court’s ruling on the voir dires and the State’s overall assessment of the case against the three Accused, the Prosecution was proceeding against each of the Accused on the basis of the felony/murder rule only.

8. The Court then ordered the trial to proceed and the State to open its case to the jury on

September 20, 2012.

State Opens Its Case

9. The State opened its case on that day and after calling two witnesses the matter was adjourned to September 25, 2012 for the trial to continue. However, when the matter again engaged the Court’s attention on September 25, 2012 learned Counsel for each Accused indicated orally in open Court that they either had obtained or were in the process of obtaining their respective clients’ instructions to enter a plea of guilty to the offence of murder, on the basis of the felony/murder rule. State Counsel then in turn indicated that she had the DPP’s consent to accept such a plea, if it were tendered.

Psychiatric Evaluations Ordered and Obtained- An Absolute Necessity

10. This is the first time in the history of this jurisdiction that an Accused wanted to plead guilty to the offence of murder on the basis of the felony/murder rule. The Court, therefore, directed Counsel to examine the law and to specifically discuss with their clients the fact that the death penalty was still part of the sentencing options available to the Court in

circumstances such as these. This was done by all Counsel and the same was reported to the

Court.

11. Additionally, and despite some initial uncertainty by Counsel as to the necessity for so doing in this case, the Court also invoked the provisions of section 13 of the Mental Health Act, Chap. 28:02 and ordered a psychiatric evaluation of and report in respect of the fitness of each of the Accused to plead guilty to the offence of murder on the basis of the felony/murder rule. The reports dated October 22, 2012 and prepared by Dr. Hazel A. Othello, Consultant Forensic Psychiatrist, were duly submitted to this Court and copies furnished to each Counsel. The Psychiatrist’s conclusions in respect of each Accused were, in all material respects, exactly the same and revealed the following:

^{“1. [The Accused] possesses the ability to understand the charges laid against him.}

He is aware that he has been charged with murder, knows what these charges mean and understands the possible consequence of being found guilty of such an offence.

2. [The Accused] possesses the ability [to] decide whether to plead guilty or not. [He] understands the concept of felony murder, knows how the felony murder rule may be applied to his case and appreciates how a plea of guilty to a charge of murder made on the basis of this rule may affects the sentencing options available to the Court.

3. [The Accused] is able to exercise his right to challenge jurors.

4. [The Accused] is able to instruct his attorney. He is expected to have no difficulty understanding his lawyer’s questions, applying his mind to answering them or conveying intelligibly to his lawyers the answers which he wishes to give. He is therefore able to convey intelligibly to his lawyers the case which he wishes to advance on his own behalf and the matters which he wishes to put forward in his own defence.

5. [The Accused] possesses the ability to follow the course of proceedings.

6. [The Accused] is able to give evidence in his own defence. He is able to understand questions he is asked in the witness box, to apply his mind to answering them and to convey intelligibly to the jury the answers which he wishes to give.”

12. The learned Psychiatrist also opined that: “[the Accused] is fit to instruct his attorney, fit to plead and fit for trial. It is also my opinion that [the Accused] is fully mentally fit to plead guilty to murder on the basis of the felony murder rule, having decided to do so after consultation with his attorney.”

13. This Court is respectfully of the view that this is a course that should be adopted in all cases where an Accused person, as in the case here, wishes to take the extraordinary step of tendering a plea of guilty to murder¹, even where the basis for such a plea is the felony/murder rule. In my view, until such psychiatric assessment is made of the Accused, it would be unwise of Counsel for the Accused to have his client enter such a plea – even if Counsel has already obtained the requisite written instructions to that effect. It is also undesirable that a Court should allow such a plea to be entered before having the benefit of an independent psychiatric assessment of the Accused. I am respectfully of the view that the Court should order such an assessment even if the Accused is represented by Counsel and irrespective of whether on an assessment of the evidence as foreshadowed in the depositions the case is unlikely to attract the death penalty.

14. When, therefore, an Accused wishes to plead guilty to murder either before, during or after his arraignment for such an offence, the Court should immediately direct Counsel for the Accused to interview him and carefully explain to him the implications of him entering such a plea. In other words, he should provide the Accused with guidance as to the gravity of his plea and the consequences that would necessarily flow from such a plea. Counsel should, of course, reduce to writing the notes of such an interview and have the Accused sign same. Counsel should then report to the Court in open Court, and preferably in writing, whether

or not he has interviewed the Accused and carefully explained to him the implications of

¹ Habib v The State (1989) 43 WIR 391

him entering such a plea and whether or not he has his client’s written instructions for such a plea to be entered².

15. The Court should then order that a psychiatric assessment of the Accused be conducted as to his fitness to plead to the specific charge of murder and on what basis it is proposed to be done. In my view, it is not necessary, as a condition precedent, in cases of this nature that there be any material or evidence for a supposition or suspicion that the Accused is or might be unfit to plead. In other words, in cases where an Accused wishes to plead guilty to murder on whatever basis, there need not be any overt reason to question whether he appreciates the nature of his confession or the consequences that may result from it, before the Court orders a psychiatric assessment of the Accused. The mere fact that an Accused person wishes to adopt the extraordinary and unusual course of entering a plea of guilty to murder, on whatever basis is, in my view, sufficient to trigger the requirement for this assessment to be made. This is particularly so where the imposition of the death penalty is a live or real possibility in the case.

16. This is so in order to have as clear an indication as possible that a plea of guilty to murder is what the Accused actually intends to enter, and on precisely what basis he intends to do so. At the end of such an exercise therefore, there must be no misunderstanding or doubt in the minds of the Accused, his Counsel, Counsel for the State and the Court as to whether a plea of guilty to murder had ever been intended or on what basis it was intended to be entered.

17. The Court is fortified in its view on this matter by reference to the case of Habib (Simon) v.

The State³ in which the Court of Appeal affirmed the approach in Vent⁴ and held that if a person accused of a capital charge pleads ‘guilty’, the trial judge must satisfy himself that the Accused is indeed fit to plead before he accepts the plea, even when the Accused is represented by Counsel. In that case, although not specifically concerned with the issue of felony/murder, Bernard CJ, delivering the judgment of the Court said made the following

instructive remarks:

² James Robert Vent v. R (1936) 25 Cr. App. R. 55

³ (1989) 43 WIR 391

^{4 4} _{James Robert Vent v. R (1936) 25 Cr. App. R. 55; and Habib (1989) 43 WIR 391 @ p. 393}

“If on arraignment on a charge of murder an accused person pleads ‘guilty’, that plea is, as general rule, a good plea. In this jurisdiction the penalty for that plea if accepted is, as we know, death by hanging. A person may plead ‘guilty’ to a charge for several reasons. He may do so out of sheer bravado; or he may do so because he truly wishes to confess his crime; or he may do so at a time when he is unfit to plead. In order to ensure that an accused person on a capital charge who is unrepresented [or who is represented⁵] and who seeks to or pleads ‘guilty’ is doing so (or has done so) genuinely and in when his state of mind is such that it cannot be said that he is ignorant of what is going on and/or of the consequences of such a plea, the trail judge is required to take a particular stance. He must, whether or not the accused is represented, take steps to ensure that he is fit to plead to the charge at the time of his arraignment.”

18. Therefore, where a person accused of a capital charge pleads or desires to plead ‘guilty’, the trial judge must satisfy himself that the Accused is indeed fit to plead before he accepts the plea, even when the Accused is represented by Counsel.

Guilty Pleas Entered & Accepted By Court and the State

19. In this particular case, in light of the findings of Dr. Othello that the Accused were all fit to plead guilty to murder on the basis of the felony/murder rule, learned Counsel for each Accused, on October 25, 2012 reported to the Court that they each had had their clients’ written instructions to that effect.

The Jury Directed to Return a verdict of

Guilty to Murder on the Basis of Felony Murder

20. Thereafter, on the said October 25, 2012 each of the Accused was re-arraigned in

Indictment S-20 of 2006. They unequivocally pleaded guilty to the murder of Jerry David

Boodoo, on the basis of the felony/murder rule. The jury were then directed to return

⁵ My inclusion

formal verdicts of guilty to murder on the basis of the felony/murder rule in respect of each

Accused. The jury were then discharged.

21. On the same date the Accused opted to also plead guilty to Indictment 109/2007⁶ wherein they were jointly charged with the offences of kidnapping, robbery with aggravation and false imprisonment. In so doing they admitted that together, on the night of August 30,

2002, they kidnapped and falsely imprisoned the virtual complainant, Nazim Dean and robbed him of his blue Toyota Corolla PAY 4412 a gold chain, a watch, a wallet, $650.00 cash and two bank cards. I mention this indictment at this stage only as a matter of chronology and expository convenience. I will deal with it separately at a later stage in this ruling.

22. Having entered their pleas to both indictments, the Court ordered all parties to file full written submissions on the question of sentence, on or before November 26, 2012. The three Accused were then remanded in custody until November 30, 2012 for probation reports and pleas in mitigation to be submitted in respect of each of them.

Parties Filed Written Submissions

23. On November 26, 2012, in accordance with the Court’s Order, all parties filed written submissions in this matter and I have striven in what ensues in this ruling, to give full effect to all of the points raised and authorities submitted by Counsel in those submissions.

THE AGREED FACTUAL BASIS OF PLEA

24. The factual basis of the plea is of particular importance in the Court’s sentencing exercise. I

therefore, think it is important to set out the material aspects of those facts at this stage.

⁶ This Indictment was originally listed in POS but was transferred, with the agreement of all parties, to San Fernando to be dealt with together with Indictment S-26/06

25. The case for the State was that August 27, 2002 was the last time that Jerry David Boodoo, (“the deceased”), was seen alive by his sister Cheryl Boodoo. The deceased owned a blue B

^{11 Nissan Sunny motor car, registration number PAU 7751 which he plyed for hire as a ‘PH’}

driver. About four months before August 2002, Sheldon Abdool was playing poker in Brazil when he met Accused Nos.1 and 2. Abdool told Accused No.1 that he wanted some Sunny car parts and Accused No.1 told him that he could arrange to get some for him. Abdool told him he could not take the parts at that time.

26. Around 10 p.m. on or about August 27, 2002 a man named Junior Malcolm Barthol was on Farfan Street opposite the Brazil taxi stand in Arima when he met Accused No.1. Accused No.1 told him that he and some other men were going for a car and that they needed another person to go along with them. Barthol and Accused No.1 walked up to the Dial where they met Accused Nos. 2 and 3 sitting by the phone booth. Accused No.1 walked higher up the road while Barthol and Accused No.3 went to the taxi stand.

27. Sometime after, the deceased came onto the taxi stand driving PAU 7751. Accused No.3 told Barthol to go sit in the front seat while Accused No.3 went into the seat behind Barthol. Accused Nos.1 and 2 then approached and asked the deceased if he was going to La Horquetta. The deceased said, ‘yes’. Accused No.1 then got into the car and sat behind the driver. Accused No.2 went into the back seat, just behind Barthol and Accused No.3 sat in the middle of the back seat. The deceased asked Barthol where he was stopping off and he, Barthol, said Phase IV. Accused No.1 said he was stopping at Marching Corner. The deceased drove off with the three Accused and Barthol in the car.

28. Along the way, in a dark spot after Marching Corner, Accused Nos. 2 and 3 pulled the deceased into the back seat of the car. Accused No.1 then went into the driver’s seat. Accused Nos. 2 and 3 began beating the deceased in the back seat. Accused No.1 started the car and drove through La Horquetta, passed through Manuel Congo and ended up in Talparo where the three Accused and Barthol were from. Accused Nos. 2 and 3 were struggling throughout with the deceased. Accused No. 3 asked the deceased where he had the money and the deceased told them that it was on the driver’s seat. Accused No.1 then searched and found the money which was a mere $63.00.
29. During this time the deceased begged the men, telling them he had a little daughter to take care of and he urged them to simply take the car and leave. However, Accused No. 3 told Accused No. 1 “this man see too much” and said to Barthol, “youth man, you have to stay quiet on this one eh”. Barthol asked Accused No.1 if they were really going to kill the man. Meanwhile Accused Nos. 2 and 3 continued to beat and cuff the deceased. They then removed the deceased’s belt from his waist and were choking him with it. During this, Barthol heard the deceased gasping for breath and then he heard a crack. After which, Accused No.3 said “he dead”. Accused No. 1 said, “allyuh kill the man boy, that is lifetime in jail” and steupsed.

30. Accused No.1 then stopped the car. Then Accused No. 1, Barthol and the other two Accused got out of the car and put the deceased into the trunk. The men returned to the car and went to a gas station where Accused No.1 put gas in the car and bought “soft drinks and sweet bread” with the $63.00 they got from the deceased. After that, Barthol and the three Accused then went to Manzanilla and stopped at the Mitan Bridge where they took the deceased out of the trunk and threw his body over the bridge into the Mitan River.

31. The men returned to the car and were driving towards Sangre Grande when the rain began to fall. On coming to a corner, the car skidded on the wet road, hit a culvert and ran off the road. At the same time a man named Ian Henry, a wrecker driver, was coming in the opposite direction with his wrecker. He saw the vehicle crash, the left doors of the vehicle opened and some people running into a fig patch. Accused No.1 approached Mr. Henry and spoke with him. Accused No. 2 ran into the fig patch while Accused No.3 and Barthol remained by the car. Accused No.1 told Barthol and Accused No.3 to “flag down” any oncoming cars so the wrecker could pull their car out. Mr. Henry eventually pulled the car out with his wrecker. He observed damage to the left front fender, bumper, headlights and parklights of the car. After the car was back on the road, the three Accused and Barthol returned to the vehicle and Accused No.1 drove through Cumuto Road, passing through Arima to Las Lomas. He drove to the home of Sheldon Abool. By that time it was between

4 and 5 a.m. the following day. Accused No.1 spoke with Abdool, told him he had a Sunny downstairs, and asked if he was interested in it. Abdool told Accused No.1 that he had no money to take anything and Accused No.1 replied that if he didn’t want it, he would get rid of it. Abdool and Accused No.1 then went downstairs to look at the car. Abdool told the

men to follow him to Las Lomas. Abdool got into his car while the men returned to PAU

7751 and followed him to his friend, Anil Singh’s house at Maraj Trace in Las Lomas. Barthol and Accused No. 3 wiped down the car while Accused No.2 took the CD deck and CDs. Accused No.1 took the bag of tools from the car. Barthol and the three Accused then got into Abdool’s vehicle and left, leaving the car with Anil Singh. Abdool dropped the men home.

32. The following day Abdool went back to Anil Singh’s home and they scrapped PAU 7751, taking off the four doors, trunk, bonnet, interior parts, rims and tyres. While they were scrapping the interior, they found a Nokia cell phone belonging to the deceased, which Abdool kept. Abdool took the four doors, trunk, bonnet, engine, gear box and sun roof from the car. Abdool sold the sun roof. He gave the engine to a man named Dennis Boodhai to have the engine number re-stamped with the engine number for his (Abdool’s) Sunny B 11 PAC 4578. Abdool ‘paid’ Boodhai with the Nokia cell phone of the deceased. He also put the re-stamped engine in his car PAC 4578. Abdool took the doors, trunk and bonnet to Lenny Garcia, a straightener and painter in Tunapuna. A customer who was present at the time bought the parts for his car on the advice of Garcia and Garcia gave Abdool the old parts from the customer’s car. Accused No.1 came to him (Abdool) and told him he was broken and he gave him the gear box from the car. Meanwhile Anil Singh got help from his brother Ganesh Singh to cut up the shell of the deceased’s car with Ganesh’s welding set. They threw the pieces of the shell into some swamp and bushes near Maraj Trace, Las Lomas. Anil kept some of the smaller parts from the car at his second home in Caroni.

33. On September 1, 2002 the body of the deceased was found floating in some mangroves in the Mitan River. A post mortem examination was performed on the body on September 3,

2002 by Dr. Eastlyn Mc Donald Burris, but due to the advanced state of decomposition of the body, the Pathologist was unable to determine the cause of death. However, the Pathologist indicated that her findings did not exclude several possible causes of death, namely: (1) ligature strangulation; (2) the application of an arm lock; (3) a severe blow to the neck which strikes a particular nerve in the neck and causes sudden death; (4) suffocation;

and (5) drowning. The Pathologist also indicated that the front of the deceased’s neck was invaded by maggots which is suggestive that there was an injury to that site, as maggots tend to invade areas of recent trauma or injury.

34. Telephone records from TSTT revealed that a call was made from the deceased’s Nokia cell phone 760-8270 to residential line 643-8950 on August 27, 2002 at 11:24 p.m. The residential line belonged to Eugene Joseph, whose daughter Lisa Joseph, is the ‘child mother’ of Accused No.2. The police arrested and interviewed Lisa Joseph on September 17, 2002. Thereafter, on September 18, 2002 the police arrested Accused No.2 who, when interviewed under caution, denied knowing anything about the death of the deceased.

35. The following day, September 19, 2002 between 11:10 and 11:50 a.m. Accused No.2 was again interviewed under caution and this time he told the police, “Me Oren, Alexander and Junior really went to take the man car but is Oren who lock the man neck and kill him”. Accused No.2 went on to say that around 10:30 p.m. they boarded the car on the Arima Taxi Stand. On reaching Marching Corner Oren (Accused No. 3) told the driver he taking it right here. The driver stopped the car and Oren held him in a headlock and pulled him into the back seat. He said Oren took out the man’s belt and started choking him. After a while the man went unconscious. Oren also hit the man some elbow to the throat. He (Accused No.2) suggested that they drop the man out and Alexander (Accused No.1) said they would carry him to Mayaro and throw him in the river. He said that Oren (Accused No.3) and Junior (Barthol) threw the man in the river. When they were leaving Mayaro the car ran off the road and a wrecker pulled them out. Alexander took the car to St. Helena and dropped it by an Indian man. The Indian man then dropped them home.

36. The investigator, Inspector George asked Accused No. 2 if he was willing to give a written statement and he agreed to do so after he showed the police where Oren, Junior, Alexander and the Indian man lived. Later that afternoon Accused No. 2 took the police to the homes of Sheldon Abdool, Accused No. 1, Accused No. 3 and Barthol. Accused No. 1 was seen at his home and arrested. Accused No. 2 directed the police to Tecuma Boulevard, La Horquetta where the pointed out Marching Corner as the spot where they took the deceased’s car and pulled him in the back seat. He was cautioned and he said “I going to show

all you the road we pass”. Accused No. 2 directed the police to drive from La Horquetta to Manzanilla Mayaro Road. On reaching the Mitan Bridge, Accused No. 2 pointed and said “this is where we throw the man over the bridge in the river”.

37. Meanwhile between 7:00 p.m. and 8:15 p.m. that evening Sgt. Watson interviewed Accused No. 1 under caution and he replied “Is Oren and Tan who kill de man, I only drive de car”. Sgt. Watson asked Accused No. 1 if he would give a written statement and he said “leh me think about it tomorrow and I will let you know”.

38. On September 19, 2002 the police executed a search warrant at the home of Sheldon Abdool where they recovered a Sunny B 11 engine in his vehicle. This engine was submitted for analysis at the Forensic Science Centre and it was found that the engine number had been tampered with but the original number could not be restored.

39. On September 20, 2002 at around 5:30 a.m. the police returned to Brazil where they arrested Accused No. 3 and Junior Barthol. Around 1:00 a.m. Accused No. 3 was interviewed under caution and he replied “I only hold the man in ah headlock. I don’t know if he dead when we throw him in the river”. Between 10:00 a.m. and 12:20 p.m. Accused No. 2 gave a written statement under caution in the presence of Justice of the Peace Kelly Ramnarase Maharajh. Between

2:40 p.m. and 4:20 p.m. Accused No. 3 gave a written statement under caution in the presence of Justice of the Peace Nazim Muradali. Between 7:42 and 10:00 p.m. Accused No.

^{1 gave a written statement under caution in the presence of Justice of the Peace Kelly}

Ramnarase Maharajh.

40. On September 21, 2002 the police held a further interview with Accused No. 2 under caution and asked him about the deceased’s cell phone. He replied, “I doh have the man phone all I do was dial Lisa number 643-8950 but ah didn’t talk to nobody, after that ah give Oren the phone.” On that same day, September 21, 2002 Abdool led the police to the Caroni home of Anil Singh, where they recovered the steering wheel from the scrapped car of the deceased. Abdool and Singh also took the police to where they had discarded the rest of the cut up car parts. It was found that the chassis number on the front cut of the car matched the chassis number on the certified copy for the deceased’s vehicle PAU 7751. The police also found

what appeared to be parts of a license plate bearing the letter U and numbers 7 and 5. The police recovered the doors, bonnet, and trunk from Lenny Garcia and retrieved the Nokia cell phone of the deceased from Dennis Boodhai.

41. By consent of all parties the Court received into evidence the following exhibits upon which the State relied: (i) four (4) photographs; (ii) the TSTT Liberty Pre Paid Cellular Registration and Licence Form No. 54704 with respect to the phone of the deceased; (iii) Interview Note of Accused No. 2; (iv) the caution statement of Accused No. 2; (v) the caution statement of Accused No. 3; (vi) the caution statement of Accused No. 1; (vii) the certified copy for motor vehicle PAU 7751; (viii) the Certificate of Analysis in respect of laboratory exhibit Nos. 9907/02, 9908/02; (ix) the Certificate of Analysis in respect of laboratory exhibit No.

12355/02; and (x) TSTT Fraud Detection System– Fraud Check Report for 760-8270.

FELONY/MURDER AND THE DEATH PENALTY

42. I now come to the relevant law on this matter. At the initial stages of these proceedings there was some uncertainty in the minds of Counsel as to what the present state of the law is regarding the relationship between the felony/murder rule (as one of the means by or basis upon which the State could secure a conviction for murder), and the sentence of death as a penalty. Although, it is clear from the submissions of all Counsel in this case that they are now all ad idem on the matter, I nevertheless, seize the opportunity presented by this case, to set out what the law is regarding this matter.

Felony/Murder

43. The offence of murder, at common law, is a crime of specific intent. That is to say, the Accused must have had the intention to kill or to cause grievous bodily harm. However, under the felony/murder rule, as encapsulated in section 2A of the Criminal Law Act Chap.

10:04, a person who kills someone in the course or furtherance of an arrestable offence involving violence, as well as all other persons who were involved in the commission of the arrestable offence, are liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm. More specifically, the section reads as follows:

“2A. (1) Where a person embarks upon the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of that offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of the commission of that arrestable offence (or any other arrestable offence involving violence) are liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm”.

44. An ‘arrestable offence’, in section 3(1) of the Criminal Law Act, Chap. 10:04, refers to capital offences or offences for which a person may be sentenced to imprisonment for a term of five (5) years or any attempt to commit such an offence.

45. In respect of felony/murder it is, therefore, irrelevant as a matter of liability or guilt⁷, whether the Accused formed the intent to kill or cause grievous bodily harm. Killing in the course of an arrestable offence with the intent to commit that arrestable offence amounts to murder under the felony/murder rule.

46. The State’s case against the three Accused, therefore, is that they embarked on a plan to commit the arrestable offence of robbery with violence and/or larceny of a motor vehicle and in the course or furtherance of that offence or those offences, the deceased, Jerry David Boodoo was killed. As such, they are liable to be convicted of murder, even if they did not intend to kill or cause grievous bodily harm to the deceased.

The Policy Behind the Rule

47. The underlying policy of the felony/murder rule was best described by the Court of Appeal in Richard Anthony Daniel v The State⁸ where their Lordships stated that: “The policy underpinning the felony/murder rule in Trinidad and Tobago is to punish those who commit felonies involving violence, full stop! If, as a result, someone is killed then the

perpetrator has to take full responsibility for his actions”.

⁷ Although, as will be seen later, it may be relevant to the question of sentence.

⁸ Crim. Appeal No. 51 of 2008 @ Para. 89:

The Historical Context of the Felony/Murder Rule

48. In the case of Haroon Khan v The State⁹, the Privy Council ruled that the felony/murder rule enacted in S. 2A of the Criminal Law Act, 1979, was constitutional. Applying the case of Balkissoon Roodal v The State¹⁰ , which was decided on the same day, the Board in Khan also ruled that where a jury had convicted an Accused of murder following a direction under section 2A of the Criminal law Act, S. 4 of the Offences Against the Person Act should be construed as authorising but not requiring the Judge to pass a sentence of death. Roodal was subsequently overturned by a 5:4 majority in the case of Charles Matthew v. The State¹¹ which held that, while the mandatory death penalty was cruel and unusual punishment and therefore inconsistent with sections 4 and 5 of the Constitution, nevertheless by virtue of section 6(1), commonly referred to as the ‘saving law clause’, the mandatory death penalty itself was not unconstitutional.

49. In 2011, the Privy Council in the case of Nimrod Miguel v. The State¹² was invited to consider whether the mandatory death penalty for felony/murder was unconstitutional. This issue had not been specifically considered by the majority in Khan years earlier, because the decision in Roodal had effectively answered that question. However, the subsequent overruling of Roodal by Matthews created the opportunity for the issue to be considered afresh. The Privy Council, following the dissenting judgment of Lord Steyn in Khan, held that because section 2A of the Criminal Law Act Chap. 10:04 was introduced by a 1997 amendment, this provision was not caught by the ‘saving law clause’ as obtained for section

^{4 of the Offences Against the Persons Act Chap. 11:08. The Court, therefore, found that the}

mandatory death sentence for murder on the basis of felony/murder is unconstitutional.

50. When one reconciles the reasoning in the cases of Khan, Roodal, Matthew and Miguel and follows the progression of the law, it is clear that the Privy Council has effectively decided that the sentence of death is discretionary in cases of murder on the basis of felony/murder.

This is not expressly stated in the judgment of Miguel. However, when one applies the

⁹ [2003] UKPC 79

¹⁰ [2003] UKPC 78: The majority in Roodal held that S. 4 of the Offences Against the Person Act provided a discretionary rather than a mandatory death sentence for the offence of murder.

¹¹ [2004] UKPC 33

¹² [2011] UKPC 14

previous authorities, it is clear that that is what their Lordship in the Privy Council must be understood to have said.

Court “ may” , not “ shall” , Impose Death Sentence

51. Therefore, in cases where a person has either pleaded or been convicted after trial of murder on the basis of the felony/murder rule, the Court are now vested with a discretion to impose the death sentence in appropriate cases, whereas before no such discretion existed. In that regard, the Court may now impose a range of sentences up to and including the sentence of death, in appropriate cases.

52. The matter was put this way by their Lordships in Khan’ “where a jury had convicted an Accused of murder following a direction under section 2A of the Criminal law Act, section 4 of the Offences Against the Person Act should be construed as authorising but not requiring the judge to pass a sentence of death...”

SENTENCING OPTIONS

Death Penalty

Sentence of Death to be Imposed Only Where Facts are the Most Extreme and Exceptional – In the “worst of th e

worst” or the “ra rest of th e ra r e”

53. The question as to what is an appropriate case for the imposition of the death sentence where a person has either pleaded to, or been found guilty of murder on the basis of the felony/murder rule has not been addressed in the Court’s of Trinidad and Tobago. Therefore, I have sought assistance in that regard from other commonwealth jurisdictions where the sentence of death is discretionary and where, the Courts have set out the principles by which a sentencing judge should be guided when deciding whether or not to impose a sentence of death in a murder case.
54. In Harry Wilson v The Queen¹³ Rawlins JA, as he then was, very helpfully outlined the approach to be adopted by a Sentencing Judge in determining whether to impose the death penalty following a conviction for murder. According to Rawlins JA Ag:

“The first principle by which a sentencing judge is to be guided in the case is that there is a presumption in favour of an unqualified right to life. The second consideration is that the death penalty should be imposed only in the most exceptional and extreme cases of murder. At the hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating facts are obvious from the evidence given at the trial. The burden to rebut the presumption then shifts to the Crown. The Crown must negative the presence of mitigating circumstances beyond a reasonable doubt. The duty of the sentencing judge is to weigh the mitigating and aggravating circumstances that might be present, in order to determine whether to impose a sentence of death or some lesser sentence”.’¹⁴

55. Rawlins JA later went on to emphasize that: “[t]he death sentence should only be imposed in those exceptional cases where there is no reasonable prospect of reform and the object of punishment would not be achieved by other means.”¹⁵

56. This approach was first recommended and has since been consistently applied in India and South Africa in cases such as Bachan Singh v The State Punjab AIR¹⁶ and State and Makwanyane¹⁷. The approach was also recommended by Rawlins JA in Harry Wilson and has since been endorsed and affirmed by the Privy Council in Pipersburgh v The Queen¹⁸ and in Trimmingham v R¹⁹ and can now be regarded as the established law in Caribbean jurisdictions where the death penalty remains a discretionary sentence for murder.
57. The facts of Trimmingham are rather ‘interesting’, euphemistically speaking, and bear repeating at this stage. In that case, the appellant held up the deceased with a gun and

demanded money. The deceased said that he had given it away and told the appellant that he

¹³ Civil Appeal No.30 of 2004 (St. Vincent & the Grenadines)

^{14 Ibid at [16]}

¹⁵ Ibid at [17]

¹⁶ 1980 SC 898

¹⁷ [1995] 1 LRC 269

¹⁸ [2008] UKPC,11

could take his goats if he left him alone. The appellant took the deceased some distance away and struck him in the stomach causing him to fall on the back of a water ditch. The appellant then threw the deceased in the ditch and cut his throat with a cutlass which he had taken from the deceased, then cut off his head with the same implement. He removed the trousers from the body and wrapped the head in them. He then handled the penis of the decease and made a ribald remark about it. He positioned the body in the contour and slit the belly. He then covered the body and stuffed the trousers containing the head into a hole under a plant in a nearby field. Their Lordships were of the view that although this was a “very bad case of murder committed for gain”, it fell short of being among the worst of the worst such as to call for the ultimate death penalty. This case, they said, was not comparable with the worst sadistic killings, even though the appellant behaved in a revolting fashion. Their Lordships were also of the view that the object of keeping the appellant out of society entirely could have been achieved without executing him.

58. In Trimmingham the Board held that: “...the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional “the worst of the worst” or ‘the rarest of the rare’. [Their Lordships opined] that in considering whether a particular case falls into the category the Judge should compare the case with other murder cases and not with ordinary civilized behaviour. The second principle [which their Lordships espoused] is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are also, to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death, the Court must be properly satisfied that these two criteria have been fulfilled.^”20

59. In Maxo Tido v R²¹ the Board in attempting to define the words “the worst of the worst” and

“the rarest of the rare” noted that, “Murder is always a heinous crime. But it is clear that a

²⁰ Ibid 14 at [21]

death sentence– the ultimate and final sentence– must be reserved for the wholly exceptional

category of cases within this most serious class of offence.”²²

60. In Mulla and Another v The State²³ the Court of Appeal of Indian attempted to outline the various factors to be considered when a sentencing court is seeking to determine whether to a murder can be classified as the worst of the worst. The list of factors to be considered is extensive and includes: (1) the manner of commission of the murder– whether the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner, the victim is subjected to inhuman acts of torture or cruelty, the body of the victim is cut into pieces or his body is dismembered; (2) the motive for commission of the murder– whether the murder is committed by a hired assassin for the sake or money; (3) the magnitude of the Crime– whether the killing involved multiple murders; and (4) the personality of the victim– when the murder victim is an innocent child, a helpless woman, when the victim is a person vis-à-vis whom the murderer is in a position of domination and trust, when the victim is a public figure, member of the armed forces or the justice system.

61. In R v. White²⁴ the Privy Council, on the question of when the death sentence should be imposed, held that- “....the starting point should be life imprisonment and the death penalty ought only to be imposed in the most extreme and exceptional cases and then only where there was no reasonable prospect of reform and the object of punishment could only be achieved by the death penalty.”

62. The Board quoting Conteh J in The Queen v Reyes²⁵ emphasized that: “...the discretion to pass the death penalty should be informed and guided by, for example, the gravity of the offence, the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of the execution of the offence and the

possibility of reform of the offender.”²⁶

²² Ibid at [36]

²³ 2010 INSC 90

²⁴ [2010] UKPC 22

²⁵ [2002] UKPC 11; [2002] 2 AC 235

²⁶ Ibid at [12]

63. On the question of the bad character of an accused, the Court at paragraph 14 held as follows:

^{“There may be cases where an offender’s previous offending is so bad and the}

previous offences are so similar to the index offence that they are relevant to its gravity. An example might be where the index offence is the latest in a series of sadistic murders...There may be cases where an offender’s previous offending is so persistent and his previous offences so grave that they may properly lead the sentencing judge to conclude that there is no reasonable prospect of reform and that the object of punishment can only be achieved by means of the death penalty.”

64. The Court also held that the sentencing judge in that case had wrongly taken into account the prevalence of murder and offences of a similar nature to justify the imposition of the death penalty.

65. In Maxo Tido v. R²⁷ the Privy Council underscored that the two principles set out in Trimmingham were cumulative in that both must be satisfied and as such, a Court contemplating the death penalty would require professional advice on the possibility of reform.

66. In R v. Vola²⁸ the Supreme Court of Tonga, referring to guidance provided by the Indian Supreme Court, set out certain examples of aggravating and mitigating factors to be considered where a Court was considering the imposition of the death penalty. The Court referred to the following aggravating circumstances, namely: (1) the murder was committed after previous planning and involved extreme brutality; (2) the murder involved exceptional depravity; and (3) the murder was of a member of the armed forces, the police or a public

servant in the course of duty.

²⁷ [2011] UKPC 16

²⁸ [2006] 3 LRC 309

67. The Court also mentioned mitigating circumstances, including- (1) where the offence was committed under the influence of extreme mental or emotional disturbance; (2) the youth or old age of the accused; (3) the probability that the accused would not commit criminal acts of violence such as would constitute a continuing threat to society; (4) the probability that the accused can be reformed and rehabilitated; (5) where on the facts and circumstances of the case, the accused believed he was morally justified in committing the offence; (6) where the accused acted under duress or domination of another person; and (7) where the accused showed he was mentally defective and that defect impaired his capacity to appreciate the criminality of his conduct.

68. In Ajitsingh Harnamsingh Gujral v State of Maharashtra²⁹ the appellant was convicted of murdering four members of his family by pouring a large quantity of petrol over them and setting it alight while they slept. The trial Court sentenced him to death on the basis that it was the “rarest of the rare” type of case for which only the death penalty sufficed. The Indian Supreme, in dismissing the appeal and upholding the death penalty held as follows:

“The death penalty was given only in the ‘rarest of rare’ murder cases when the alternative option was unquestionably foreclosed. In determining the culpability of a defendant and the final decision as to the nature of the sentence, the court should balance the aggravating and mitigating circumstances of the case. A distinction had to be drawn between ordinary murders and murders which were gruesome, ghastly or horrendous. While a sentence of life imprisonment should be given in the former, the latter belonged to the category of ‘rarest of rare’ cases and should not attract the death penalty. The expression ‘rarest of the rare’ could not be defined with complete exactitude although there were broad guidelines from previous authorities which aided its interpretation. According to those guidelines, a defendant deserved the death penalty where the murder was grotesque, diabolic, revolting or of a dastardly manner so as to arouse intense and extreme indignation in the community and when the collective conscience was petrified or outraged. It also had to be seen whether the defendant was a menace to society and would continue to be so, threatening its

peaceful and harmonious existence.... The Court had to inquire further and believe

²⁹ [2011] INSC 949

that the defendant could not be reformed or rehabilitated and would continue

committing criminal acts....”

69. The following general guidance may therefore, be distilled from the foregoing authorities: (1) the crime being brutal and heinous itself does not necessarily tip the scale in favour of the death sentence³⁰, (2) the death sentence should be reserved for the most extreme and exceptional cases, “the rarest of the rare” or “the worst of the worst”; (3) there must be no reasonable prospect of reform; (4) the object of punishment must be incapable of being achieved by any other means than the ultimate penalty of death; (5) before the imposition of the death sentence, psychiatric reports and social enquiry reports should be obtained and considered; (6) the bad character of the accused ought not to weigh in the scales against him unless his previous conduct is so bad and similar to the index offence that it affects its gravity and/or it is relevant to whether there is a reasonable prospect of reform.

Guidelines for Prosecutors When Discretionary Death Penalty is to be Sought

70. I also commend the procedure outlined by the Privy Council R v. White³¹ where the death penalty is to be sought in any case where the Court’s discretion to impose such a penalty is involved. In that case their Lordships held that-

“It was important, in discretionary death penalty cases to apply the established two basic principles that the death penalty should be imposed only in cases which on the facts of the offence were the more extreme and exceptional, ‘the worst of the worst’ or ‘the rarest of the rare’, and that there had to be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. To those principles would be added a qualification: no judge should reach such a conclusion with the benefit of appropriate reports. Moreover, the Board strongly endorsed and emphasized the

importance of the excellent guidelines for the prosecution, trial and sentencing of

³⁰ Per Prasad J in Mannan v State of Bihar (2011) 5 SCC 317 @ para24.

³¹ [2011] 2 LRC 208; [2010] UKPC 22

accused persons charged with murder set out by Conteh CJ in R v Reyes [2003] 2

LRC 688, namely:

(i) as from the time of committal, that prosecution should give notice as to whether they proposed to submit that the death penalty was appropriate;

(ii) the prosecution’s notice should contain the grounds on which they submitted

the death penalty was appropriate;

(iii) in the event of the prosecution so indicating and the trial judge considering that the death penalty might be appropriate, the judge should at the time of the allocutus, specify the date of the sentence hearing which provided reasonable time for the defence to prepare;

(iv) the trial judge should give directions in relation to the conduct of the sentence hearing as well as indicating the materials that should be made available, so that the accused might have reasonable materials for the preparation and prosecution of his case on sentence;

(v) at the same time the Judge should specify a time for the defence to provide notice of any points or evidence it proposed to rely on in relation to the sentence;

(vi) the judge should give reasons for his decision including the statement as to the grounds in which he found that the death penalty had to be imposed in the event that he so concluded and he should also specify the reasons for rejecting any mitigating circumstances.”

Death Sentence Inappropriate In this Case

71. It was submitted by all Counsel, including learned Counsel for the State that the death penalty is an inappropriate sentence in this case. I agree with that submission. When one has regard to the extremely high, and I dare say virtually unattainable, standard set by their Lordships in Trimmingham, this is not a case which, on the facts of the offence, is the most extreme or exceptional. Nor can it be appropriately described as falling within ‘the worst of the worst’ or ‘the rarest of the rare’ cases for which only the death penalty suffices.
72. In the instant case, as wicked and senseless as the actions of the three Accused were, the facts are not nearly as gruesome as in Trimmingham. The facts establish with some sufficiency that although the offence was committed in the furtherance of a robbery, the killing was not planned or premeditated (as distinct from an intention to kill being formed during the course of the robbery). There was no torture of the deceased, no prolonged trauma or humiliation of the deceased prior to death and no weapon, apart from the deceased’s own belt, was used in the commission of the offence. In the absence of such aggravating factors this Court would be hard-pressed to impose the death penalty in the particular circumstances of this case.

73. I, therefore, find that the imposition of a sentence of death is inappropriate for this case and

I exercise my discretion not to do so.

If not Death, then Life

Life Imprisonment

74. All Counsel in this case have proceeded to nudge this Court in the direction of the imposition of “a term of years”, albeit in varying ranges and with differing starting points. All of the submissions, therefore, cantered around this Court imposing on the Accused a sentence other than death but not including life imprisonment as an option. I invited Counsel’s submissions and or comments on this point and each effectively rested on their previous submissions regarding the way they suggested that the Court should approach its task.

75. In this Court’s view, however, for the sentencing tribunal to move from a finding that the death sentence is not appropriate to the consideration of a “term of years” without first considering the appropriateness of the imposition of a life sentence or some other variation thereof is the wrong way to approach the matter. Indeed, to do otherwise would be to approach the exercise on an entirely wrong basis. In my view, where a Court finds that the imposition of the death sentence is inappropriate in any given case, the Court must, before it goes on to consider the appropriateness or not of the imposition of a “term of years”,

consider whether or not the imposition of a life sentence is appropriate or not. Indeed, having found that the death sentence is inappropriate, the next step must be to consider whether a life sentence is or is not appropriate. In my view, after the death sentence is ruled out, life imprisonment must be the starting point³².

The Starting Point Must Be Life

76. In cases of this nature, when an Accused has either pleaded guilty to or been found guilty of murder on the basis of the felony/murder rule, where the death penalty is discretionary, the starting point must be life imprisonment. Such an approach not only underscores the sanctity of the human life as a pillar of civilised society, but it also recognises the fact that the offence with which the Accused has been charged is still that of murder.

77. A life sentence in this context means the natural life of the prisoner: Allan Henry and Others v The Attorney General and The Commissioner of Prisons³³. In Allan Henry and Others Rajkumar J considered the interpretation of the term “life sentence” as it applies to Trinidad & Tobago. At page 51, the learned judge examined the issue of whether the terms of imprisonment for natural life or 75 years were known to law. The learned Judge concluded that it cannot be said that imprisonment for life is not known to law. The case of R v Foy (1962) 2 All ER 246, Justice Rajkumar said, clearly demonstrates that a sentence of life imprisonment means imprisonment for life, subject to any executive amelioration. He also cited local legislation where the sentence provided included imprisonment for natural life³⁴. According to the learned Judge, therefore, the argument that a sentence of imprisonment for the whole of natural life is different from life imprisonment and any argument that a life sentence must be less than 20 years are unsupported by authority. He also rejected the argument that life imprisonment has come to mean 12 to 15 years.

78. I accordingly agree with Rajkumar J erudite ruling on this matter.

³² R v. White [2010] UKPC 22

³³ CV2007 – 03406; CV 2007-03881; CV 2007-03399; HCA 2548 of 2003; CV2007 – 04450; CV2008 - 01123

³⁴ CV2007 – 03406; CV 2007-03881; CV 2007-03399; HCA 2548 of 2003; CV2007 – 04450; CV2008 – 01123: See pg. 62 of Judgment

Belize

79. Their Lordships in the Privy Council in the case of White³⁵ (Belize), on the question of when the death sentence should be imposed, stated that- “...the starting point should be life imprisonment

...”.

80. The prosecution’s case in White was that the appellant had asked the deceased for “one quarter” and then shot him. The defence at trial had been alibi. At the sentencing hearing the appellant submitted that the death penalty was discretionary and that the judge should impose a life sentence. The appellant had a number of previous convictions, including a conviction for manslaughter in 1994 and an offence of “dangerous harm” in 2003 for which he had been sentenced to four years and one year’s imprisonment respectively. After considering all of the relevant factors in the case the learned trial judge felt, as he put it, “compelled to impose the death sentence.”

81. On appeal however, the sentence of death was set aside and their Lordships observed that-

“in the instant case, the judge had failed to apply the correct principles when passing the death penalty failing to apply guidelines: (iv) and (vi)³⁶. First the judge’s starting point had been that it was for the appellant to persuade him to pass a life sentence rather than the death penalty. The starting point was life imprisonment and the death penalty should be imposed only in the most extreme and exceptional cases and then only when there was no reasonable prospect of return and the object of punishment could only be achieved by the death penalty.”

82. In the earlier case of Reyes v R ³⁷, another authority emerging from Belize, the Privy Council observed that:

“The problem of differential culpability had been addressed in different ways in

different countries. In some a judicial discretion to impose the death penalty has been conferred, reserving its imposition for the most heinous cases. Such was the

³⁵ [2010] UKPC 22

³⁶ _{See above}

solution adopted in South Africa before its 1993 Constitution, when it was held that the death penalty should only be imposed in the most exceptional cases where there was no reasonable prospect of reformation and the subject of punishment would not be properly achieved by any other sentence: State v Nkwanyana [1990] ZASCA 95; 1990 (4) SA 735 at

743-745. Such is also the solution adopted in India where the rule had been expressed by Sarkaria J in the Supreme Court in Bachan Singh v State of Punjab [1980] 2

SCC 475 at 515 in these terms: “(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment³⁸. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.”

Tongo

83. Additionally, in Vola (Tonga) the Privy Council, in considering the appropriateness of imposing the death penalty held that-

^{“The uniqueness of the death penalty meant that life imprisonment was the rule and the}

death sentence an exception to be reserved for the rarest of rare cases for special reasons to be recorded in the judgment after consideration of every relevant circumstance relating to the crime as well as the criminal.”

84. The facts of Vola were that the deceased, P and Vola had been drinking on evening and started to fight. P hit Vola to the floor and punched Vola. Vola then got an iron bar and hit P more than twice while P was on the ground, resulting in P’s death. Vola was convicted in the Supreme Court by a jury, of murdering P and the matter proceeded for sentencing. Vola had no previous convictions and conveyed remorse for his actions. The case was sent to the Supreme Court for sentencing and a sentence of life imprisonment was imposed.

85. It should be noted that in Vola, where the imposition of the death penalty is discretionary, under section 91 of the Criminal Offences Act there are only two alternative punishments for murder, namely the sentence of death and imprisonment for life. The alternative to be imposed was within the discretion of the court, to be exercised judicially after considering all

relevant factors. The Court did not have power to impose any lesser sentence.

³⁸ My Emphasis

India

86. In Bachan Singh v. State of Punjab³⁹ (India), in relation to how the Court should decide between imposing a sentence of death and one of life imprisonment, the Supreme Court of India said that: “for persons convicted of murder, life imprisonment is the rule and death sentence an exception.” The rule was further expressed by Sarkaria J in the Supreme Court in that case at page 515 in these terms: “(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.

87. More recently, in Mulla and Another v. State of Uttar Pradesh⁴⁰ the Supreme Court had to consider whether the death sentence imposed by the trial judge and affirmed by the High Court was justifiable and acceptable. Their Lorships held that-

“it was a settled legal position that the punishment had to fit the crime. Although it was open for the court to impose a death penalty in an extremely narrow set of cases, the ‘rarest of the rare’, that route was open to the court only where no other punishment would suffice. The test for the determination of the ‘rarest of the rare’, category of crimes inviting the death sentence included broad criteria, i.e. the gruesome nature of the crime, the mitigating and aggravating circumstances in the case – taking into consideration the position of the criminal – and whether any other punishment would be completely inadequate. Life imprisonment was the rule and the death penalty an exception.

88. The facts of Mulla were that on the night of December 21, 1995 eight villagers were returning home from their fields when they were set upon by a number of armed persons, who demanded that each villager pay Rs10, 000. When the villagers replied that they had no money, three were assaulted and directed to return with the random money, otherwise the remaining five would be killed. When the three returned to the field later that night, no one

was there. The next morning complaints were lodged at the local police station and an

³⁹ AIR 1980 SC 898

⁴⁰ [2010] INSC 90 @ 683

investigation was commenced to search for the five who had been abducted. Their bodies were later discovered, each having been stabbed to death. The accused were subsequently pointed out on an identification parade by two of the villagers who had been present at the scene at the December 21 encounter. At the subsequent trial in 2005 the three villagers who had been assaulted gave eye-witness evidence corroborating the accounts of the other eye- witnesses and connecting the appellants to the five killings. The appellants were convicted of murder and sentenced to death.

89. On the facts, there were certain mitigating circumstances to be taken into account, namely the length of the incarceration already undergone by the appellants, their current age and general circumstances. The appellants had been in prison for the last 14 years. Such- economic factors might not dilute guilt, but they could amount to mitigating circumstances. The appellants belonged to an extremely poor background and had committed heinous crimes for want of money. The Supreme Court held that-

“There was no reason why they could not be reformed over a period of time. The death sentence would therefore be replaced by sentences of life imprisonment, which was to extend in their full life, subject to any remission by the government for good reason (see paras [38]-[62], below) Bachan Singh v State of Punjab AIR 1980 SC 898, Machhi Singh v State of Punjab AIR 1983 SC 95, Panchhi v State of Uttar Pradesh [1998] 7 SCC 177 and Ramraj @ Nanhoo @ Bihnu v State of Chhattisgarh 2009 (14) SCALE 533 applied.”

90. Although these decisions and the statements of the Court’s dicta were made against the background of the relevant statutes in each jurisdiction, I believe that, in considering the position in Trinidad and Tobago, this being virgin territory for the Courts in this jurisdiction, where the court also have a discretion to select the death penalty or life imprisonment, the principles set out in all these decisions of the highest Courts in the other countries to which I have referred are highly persuasive. I therefore, think that it is right that this court should adopt their reasoning in reaching its decision on the exercise of that discretion in this case.

When is Life Sentence Appropriate?

91. In my view, there are cases, (short of being the rarest of the rare and which therefore would not attract the death penalty), where the facts reveal either extreme cruelty or such a reckless indifference to human life that a life sentence is deserving, appropriate and should therefore be imposed. These are, of course, not the only circumstances when a life sentence should be imposed, or may be considered deserving or appropriate and I do not wish to be understood as attempting to state anything of the sort. However, in this Court’s view, a sentence of life imprisonment would be most appropriate in cases where the facts reveal that death ensued as a consequence either of extreme cruelty to the deceased, or of such reckless indifference to human life on the part of the Accused.

Reckless Indifference to Human Life – Defined & Examined

92. The term “extreme cruelty”, is in my view, self explanatory and warrants no further definition at this stage. However, in the context of the facts of this particular case, I am obliged to examine the term reckless indifference to human life. The term is not one that is familiar to the Courts in our jurisdiction, although in principle we have recognised the substance of its import in our criminal law for some time now. I have therefore, sought assistance from authorities in other jurisdictions where the term has been defined, used and applied. In my view, reckless indifference to human life is an indifference on the part of the Accused to whether death occurs.

New South Wales (NSW)

93. In NSW, S. 18(1) of that country’s Crimes Act, defines the offence of murder in the following manner: “Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.”
94. The phrase “reckless indifference to human life” has been interpreted to mean that the accused foresaw or realised that his act would probably cause the death of the deceased, but he continued with that act regardless of the risk of death: Sullivan v R [2012] NSWCCA 41 @ Para 39.

95. In R v Grant⁴¹, Woods CJ said at para. 33-34-

“In order for an accused to be convicted of murder by reckless indifference to human life, the Crown needs to show that he or she knew that the probable result of his or her act (or omission)... was to caused the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: Crabbe v The Queen [1985] HCA 22; (1985) 156 CLR 464; Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 19 (a code case). To prove murder by reckless indifference to human life, an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring, and went ahead regardless. As such, it is strictly not a crime of specific intent.... The Crown must still however show that the accused intended to do the physical act (or omission) involved, and that such act (or omission) was voluntary.”

“Of importance is the circumstance that an awareness or foresight of the consequence of the act (or omission), on the part of the accused personally, is essential for proof of the offence. It is not sufficient that an ordinary or reasonable person would have foreseen the probability of the occurrence being the death of another: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107. There is, accordingly, an additional element affecting the subjective mental state of the accused, which is to be established in the case of murder by reckless indifference, wand which goes beyond the basic intent to do (or omit) the act which brings about death. The mens rea for this form of offence, was pointed out in Crabbe v The Queen at 470 -471, is the

knowledge of the offender that death is the probable consequence of his or her act

⁴¹ [2002] NSWCCA 243

(or omission), to which I would add the decision to go ahead regardless of that

consequence.

United States of America (USA)

96. In the USA the phrase “reckless indifference to human life” is commonly understood to mean that an Accused person subjectively appreciates that his conduct created a grave risk to human life: [Tison v Arizona [1987] USSC 61; 481 U.S. 137 (1987); see also People v. Estrada (1995) 11 Cal. 4^th

568].

97. In the case of Tison v Arizona⁴² the Petitioners, who were brothers, along with other members of their family, planned and effected the escape of their father from prison where he was serving a life sentence for having killed a guard during a previous escape. The Tison brothers entered the prison with a chest filled with guns, armed their father and another convicted murderer. When the family’s getaway vehicle broke down they stopped and abducted a passing motorist and robbed him and his family. The Tison brothers watched their father and the other convict murder the members of that family with shotguns. Although they both later stated that they were surprised by the shooting, neither accused made any effort to help the victims, but drove away in the victims' car with the rest of the escape party. The brothers continued to assist their father until he died following an armed confrontation with police. They were charged with murder under Arizona’s felony murder statute which made it a crime punishable by death to take part in any robbery or kidnapping in which a murder is committed. They were convicted and sentenced to death. Their case reached the United States Court of Appeal.

98. On appeal they argued that they were accomplices only to kidnapping and that because they lacked the intent to kill the death penalty was not a proportionate penalty. The Supreme Court affirmed their individual convictions for capital murder under that State's felony- murder and accomplice-liability statutes and held that although they both lacked any specific intent to kill, their death sentences were permissible if the Court found that they were

recklessly indifferent to human life. The court ruled that the requisite intent was established

⁴² [1987] USSC 61; 481 U.S. 137 (1987),

by evidence that the brothers played an active part in planning and executing the breakout and in the events that led to the murders, and that they did nothing to interfere with the killings or to disassociate themselves from the killers afterward Although only one of the brothers testified that he would have been willing to kill, the court found that both of them could have anticipated the use of lethal force.

99. At page 1688 Justice Marshall noted that:

“Many who intend to, and do kill are not criminally liable at all – those who act in self-defence or with other justifications or excuse. Other intentional homicides, though criminal, are often felt undeserving of the death penalty – those that result in provocation. On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all – the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to that fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill”. Indeed it is for this reason that that the common law and modern criminal codes alike have classified behaviour such as occurred in this case along with intentional murders...

...we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable,

le thal result.” [Emphasis]

100. The Court found that the brothers’ involvement in the crimes were not minor. Each defendant, the Court found, “was actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder of the Lyons family and the subsequent flight. The Tisons’ high level of participation in these crimes further implicates them in the resulting deaths.” (Page 1688). The Court therefore held that the brothers’ major participation

in the felony committed, combined with reckless indifference to human life was sufficient to satisfy the Enmund v Florida⁴³ culpability requirement.

101. In respect of the instant case I, like Justice Marshall in Toson, am of the view, such a mental state of reckless indifference to human life may be taken into account in making a determination as to the appropriate sentence to be imposed on an Accused when his conduct causes its natural, though also not inevitable lethal consequence. I am also respectfully of the view that where the behaviour of an Accused is such that it manifests or reflects a reckless indifference to the value of human life, the same would be tantamount to having an intention to kill.

102. The latter case of The State v Lucy⁴⁴ highlights that a “mere possibility” or even the “likelihood” that the Accused exhibited reckless indifference is insufficient. In that case, one Stubblefield owed the defendant money from a previous burglary the two had committed. The defendant accompanied Stubblefield to an apartment where he said a girl he knew was living and from whom he intended to get some chemicals to make angel dust, which he would sell to repay the defendant. Using a key Stubblefield entered the apartment. When the deceased, Susan came out of the bedroom he asked her for the chemicals. She refused and they began to argue, and he struck her. Susan’s roommate Teresa then came into the room and swung at Stubblefield with a wrench. He turned in her direction and fired a shot.

103. The defendant claimed that during this altercation he was standing in the kitchen and that when the gun went off he got scared and decided to leave. He said he attempted to leave through the back door but found a table in the way. As he tuned and headed towards the front door he saw Stubblefield shoot Teresa in the face. He then heard a car outside and told Stubblefield they had to go. Stubblefield instead hit Susan on the head with the gun. At that

point the defendant saw a microwave oven, picked it up and ran out the front door. He put

⁴³ [1982] USSC 168; 458 U.S. 782. In Enmund the United States Supreme Court held that a defendant is eligible to be put to death only if he killed, attempted to kill, or intended that a killing take place. Nb. That Tison v Arizona broadened this rule in deciding that the culpability requirements in Enmund were satisfied in a felony murder case if the defendant was a major participant in the felony and acted with reckless indifference to human life.

⁴⁴ 929 P.2d 1288 9Ariz. (1996)

the microwave behind some bushed, waited a while, and then returned to the apartment to find out what was delaying Stubblefield.

104. When he went back into the apartment he saw Stubblefield had tied up Susan and was shooting her in her head. He then ran away. About five minutes later Stubblefield, driving his own car, picked up the defendant and the two retrieved the microwave. When the defendant asked why he shot the women, Stubblefield told him to shut up.

105. The State argued that during the killings and events leading up to them, the defendant stood by and did nothing, took no steps to help the girls or made no effort to summon help and was concerned only with stealing the microwave. The Court, however, found that there was little to establish the defendant’s involvement in the deaths of the young women. The Court said (page 1300):

“We know that, at a minimum, he stole a microwave after one of the murders and did nothing to prevent either victim’s death. While this may demonstrate callousness and a shocking lack of moral fiber, it does not alone rise to the level of reckless indifference....”

“ ... We do not suggest that the defendant’s tale must be accepted at face value. Without his statement, however, we are left with an almost complete void as to what occurred that night. His fingerprints were nowhere to be found, it is unclear whether he knew Stubblefield had a gun, and it is uncertain that he should have anticipated violence.”

106. Having regard to those particular facts, the Court therefore found that it was not established beyond reasonable doubt that the defendant exhibited reckless indifference and it refused to uphold his death sentence.

107. Additionally, in People v. Estrada⁴⁵ Lucas, CJ, expressing the unanimous view of the Court said-

⁴⁵ (1995) 11 Cal. 4^th 568, 46

“Relying on Enmund v. Florida [1982] USSC 168; (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368], the Tison defendants contended that because they did not intend to kill the victims, their death sentences did not comport with the Eighth Amendment's requirement that the death penalty be proportional to the culpability of the defendant.

The high court rejected the defendants' argument. Noting that "[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime" (Tison, supra, 481 U.S. at p. 156 [95 L.Ed.2d at p. 141]), the court found that, when faced with determining the level of a defendant's culpability for which the state may exact the death penalty, focusing solely on the question of whether the defendant intended to kill the victim was unsatisfactory. (Id. at p. 157 [95 L.Ed.2d at p. 144].) In the high court's view, "some nonintentional murderers may be among the most dangerous and inhumane of all- the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an 'intent to kill.' " (481 U.S. at p. 157 [95 L.Ed.2d at p. 144].)

Finding support in the Model Penal Code, which equates reckless killing with intentional killing for purposes of classifying various types of homicide, the court in Tison concluded that "the reckless disregard for human life [11 Cal.4th 577] implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state." (481 U.S. at p. 157 [95 L.Ed.2d at p. 144].) The court therefore held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." (Id. at p. 158 [95 L.Ed.2d at p. 145], fn. omitted.).

Tison thus instructs that the culpable mental state of "reckless indifference to life" is one in which the defendant "knowingly engag[es] in criminal activities known to

carry a grave risk of death" (481 U.S. at p. 157 [95 L.Ed.2d at p. 144]), and it is this meaning that we ascribe to the statutory phrase "reckless indifference to human life" in section 190.2(d). Our task now becomes to determine whether the statutory meaning of the phrase is adequately conveyed by a common understanding of its terms.”

“Relying on the court's holding in Purcell, supra, 18 Cal.App.4th 65, defendant argues that the phrase, "reckless indifference to human life," has a technical, legal meaning that is not conveyed by an average juror's understanding of the words. In Purcell, the court determined that in common parlance, the phrase "reckless indifference to human life" fails to make clear the requisite mental state, expressed in Tison that a defendant must subjectively appreciate that his or her acts were extremely likely to result in the death of an innocent human life. (Purcell, supra, 18

Cal.App.4th at p. 74.) In the court's view, " 'reckless indifference' commonly would be understood to mean something akin to extreme carelessness or extreme lack of concern." (Id. at p. 72, fn. omitted.)”

“We disagree and find that, when considered in its entirety-as the phrase is presented to the jury-"reckless indifference to human life" is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common meaning of the term "indifference," referring to "the state of being indifferent," is that which is "regarded as being of no significant importance or value." (Webster's New Internat. Dict. (3d ed. 1981) p.

^{1151, col. 1.) To regard something, even to regard it as worthless, is to be aware of it.}

(See id. at p. 1911, col. 1 ["regard" is synonymous with "consider, evaluate, judge"].)”

“Although the term "reckless"-standing alone-may arguably be understood in common parlance to mean simply neglectful, heedless, or rash (see Webster's New Internat. Dict., supra, at p. 1896, col. 1), when the word is placed in context within the statutory phrase "indifference to human life," what is conveyed to the jury is more than mere negligence. [11 Cal.4th 578]”

“The conclusion that in common parlance, the phrase "reckless indifference to human life" conveys the notion of a subjective appreciation or knowledge by the defendant of a grave risk of death is further supported by our decision in People v. Dellinger (1989) 49 Cal.3d 1212 [264 Cal.Rptr. 841, 783 P.2d 200]”.

Term of Years

Basis for C ourt’s Powe r to Impose Sentence

108. I now come to consider the question of the appropriateness of a term of years. In my view, it is only where the imposition of death or life sentences are not appropriate for murder on the basis of the felony/murder rule, that the Court should then go on to consider the appropriateness of a term of years as the sentence to be imposed.

109. This Court’s powers to impose sentences are derived from both common law and statute.

The effect of the Privy Council’s ruling that in respect of a conviction for murder on the basis of the felony/murder rule the sentence of death is now discretionary has implications for what other sentences, apart from death and life imprisonment, are open to the Court in cases such as these. It is also clear that, on a proper interpretation of the relevant legal principles⁴⁶, this Court does, in appropriate cases, have the power to impose a lesser sentence than either death or life imprisonment for murder based on the felony/murder rule. In particular, having regard to the Privy Council’s ruling in Nimrod Muguel, section 4 of the Offences Against the Persons Act, Chap. 11:08 must now be read as subject to section 68(2) of the Interpretation Act, Chap. 3:01. It stands to reason therefore, that this Court now has the discretion to impose not only the sentence of death or life imprisonment, but some

lesser sentence, including a term of years in cases where it is appropriate so to do.

⁴⁶ See: Section 4, Offences Against the Persons Act, Chap. 11:08; and Section 68(2) of the Interpretation Act, Chap. 3:01

When a Term of Years Would be Appropriate

110. When therefore, would it be appropriate to impose a term of years on someone who has either pleaded guilty to or been found guilty of murder on the basis of the felony/murder rule.? I do not intend herein to be understood as attempting to create any rigid or closed categories of circumstances when a term of years would be appropriate. In my view however, a term of years for the offence of murder, where a person has either pleaded or been found guilty of murder on the basis of the felony/murder rule, would be appropriate in, inter alia, those circumstances where for example death occurs accidentally during the course of the commission of a felony; or where a party to that felony which results in death, so distances himself from the events that lead to or caused the death of the deceased; or could not be said to have foreseen the actions of his Co-Accused that resulted in death; or took no part in them; or a secondary party to a charge of murder, realised or foresaw that the principal might inflict physical harm falling short of grievous bodily harm and participated commission of the felony with that foresight.

No Assistance From or Appropriate Comparison with “G enera l” Man slaughter C a ses

111. Counsel for the Accused and the State have sought to persuade this Court that this is an appropriate case for the imposition of a term of years. In so doing they have referred the Court to several authorities involving convictions for manslaughter for guidance as to how the Court should approach its task in the instant case. Although I have been referred to several cases by all Counsel where the sentence imposed by the Court was based on a conviction for or plea of guilty to manslaughter, I find those authorities unhelpful for a number of reasons. The rationale for sentencing in manslaughter cases is entirely different from that of murder. In manslaughter cases, the sentencing Court starts with certain fundamental presumptions which are not applicable to cases of murder. A sentence in the case of manslaughter does not reflect the unjustifiable nature of the homicide.

Authorities Referred to By Defence Counsel- Manslaughter

Accused No. 1

112. Counsel for Accused No. 1 referred the Court to the case of Kenneth Samuel v. The Queen⁴⁷ and urged this Court to set the maximum sentence at 15 years, then apply a discount of 1/3 for the Accused’s early guilty plea. However, Kenneth Samuel is not at all on par with the case at bar. In that case the Accused said that whilst his back was turned the deceased struck him at the back of his neck with a pipe and the Accused reacted involuntarily by delivering three blows with a cutlass he had been holding to do some work. Court also heard extensive testimony at the sentencing hearing from a psychiatrist in support of this. It is therefore, on that basis that the Court in Samuel approached its task of sentencing the Accused. It therefore, provided no assistance to this Court in the instant case.

Accused No. 2

113. Counsel for Accused No. 2 referred the Court to the case of Shelley-Ann Anganoo v. The State⁴⁸. In that case the Appellant was jointly charged with three others for the murder of Ralphy Ramcharan which occurred on March 25, 2003. The Appellant pleaded not guilty to murder but guilty of manslaughter although it is not at all clear from the proceedings on what basis that plea was either entered or accepted. One can only summise that it was on the basis of some sort of finding of diminished capacity on the part of the Appellant. The facts of that case were that the she and her female co-accused entered the deceased’s car after meeting him in a bar and with two other co-accused robbed the deceased of his money, placed him in the back seat of his car and drove him to another location where they bound his hands and feet, stabbed him several times with a pair of scissors and struck him repeatedly with a wheel spanner. The deceased was also stripped of his clothing and thrown into a nearby waterway and the Appellant and her female co-accused went into the water and held the deceased under the water to ensure that he was dead. The Appellant was originally sentenced to twenty (20) years imprisonment with hard labour but on appeal her sentence

was varied to fifteen (15) years imprisonment with hard labour.

⁴⁷ CR Appeal No. 7/05

⁴⁸ Cr. App. No. 39 of 2008

114. Learned Counsel for Accused No. 2 also referred the Court to the cases of Charles Dougdeen, Dexter Brathwaite and Ors v. The State⁴⁹ and Ramsingh Jairam and Krishna Persad v. The State⁵⁰ In Dougdeen, Brathwaite & Ors, the appellants took the deceased to the beach house of the 1^st named Appellant and beat him to death. The Accused were indicted for murder but at the trial the State accepted a plea of guilty of manslaughter. They were all sentenced to 15 years hard labour with the exception of the second appellant who was sentenced to 7 years which was subsequently varied to 15 years by the Court of Appeal. The Court of Appeal found that it was clear that there was a well contrived and executed plan by the appellants to brutally and mercilessly beat the deceased causing his death. However, as the Appellants in Shelley- Ann Anganoo and Dougdeen, Brathwaite & Ors pleaded guilty of manslaughter and it is not at all clear from the proceedings on what basis that plea was either entered or accepted, I find very little assistance to be derived from these cases and that of Nigel Deonarine v The State⁵¹ to which Counsel has also referred this Court.

115. In Ramsingh Jairam and Krishna Persad v. The State⁵² the appellants pulled up alongside a vehicle in which the deceased and a woman were parked and proceeded to rob the male victim of his wallet before shooting him twice. The appellants then drove away with the female victim to a cane weighing area and proceeded to rape her several times. When he was finishing raping her, the second appellant shot the victim in her vagina. The appellants then left the woman naked and bleeding. The appellants were convicted of murder and sentenced to death. On appeal Jairam’s conviction and sentence were affirmed. However, in the case of Persad, his conviction was quashed and a verdict of manslaughter substituted. That was because of a failure of the trial judge to direct the jury on the question of foresight by a secondary party to a joint enterprise. Therefore, a sentence of 20 years imprisonment was imposed to run from the

date of conviction. Those considerations do not arise in the instant case.

⁴⁹ Cr. App. Nos. 78, 79, 80 and 81 of 1997 (unreported)

⁵⁰ Cr. App. Nos. 86 and 87 of 1995 (unreported)

⁵¹ Cr. App No. 50 of 1994 (Here the Appellant, though charged with murder was convicted by the jury of the lesser count on manslaughter)

⁵² Cr. App. Nos. 86 and 87 of 1995

Accused No. 3

116. Counsel for Accused No. 3. Referred the Court to the cases of Peter Cadette v. State⁵³; Robert Noreiga v. State⁵⁴; Ricky Small and Patricia Boodoo v. State,⁵⁵; and Shawn Parris v. State.⁵⁶ However, none of these authorities are of any assistance to the Court in the particular circumstances of this case. The Accused in each of those cases was sentenced on legal and conceptual grounds that do not exist here. In Cadette, the Appellant was found guilty of murder but on appeal a verdict of manslaughter was substituted on the basis of provocation. In Noreiga, the jury returned a verdict of guilty of manslaughter, presumably on the basis that the Appellant had been provoked.

117. In Small & Boodoo, the Appellants were charged with murder but when the indictments were read to them they pleaded guilty to manslaughter, and the State accepted those pleas. Boodoo’s conviction was eventually acquitted on appeal and Small’s conviction was affirmed. However, here again the element of provocation was the basis for the State’s acceptance of his plea of guilty to manslaughter and Court approached the question of Mr. Small’s sentence on that basis. None of those matters are applicable to the factual matrix of this case. Further, the case of Parris, is equally unhelpful in that regard.

No Assistance from Manslaughter Cases

118. The afore mentioned authorities have failed to provide appropriate assistance in respect of the matter at hand. In The State v. Ashton Blandin⁵⁷ this Court held that although both murder and manslaughter result in death, the difference in the level of culpability creates offences of a distinctively different character. Therefore, the Court’s approach to sentencing in each case should start from a different basis. In Atto rne y Genera l’s R eference (Nos. 7 4, 95 and 118 of

^{2002) (Suratan and others58) the English Court of Appeal set out a number of assumptions that}

a sentencing judge must make in favour of an offender who has been found not guilty of murder but guilty of manslaughter by reason of provocation. These assumptions are

⁵³ Cr. App. 27/2005

⁵⁴ Cr. App. 44/1994

⁵⁵ Cr. App. 93&94/1996

⁵⁶ Cr. App. 12/2004

⁵⁷ CR No. 44/2010 Mon Désir, J. (Unreported)

⁵⁸ [2009] EWCA Crim 2701; [2003] 2 Cr App R (S) 42

required in order to be faithful to the verdict and, in my view, should be applied equally in all cases whether conviction follows a trial or whether, as in the case of some of the authorities to which I have been referred, the State has accepted a plea of guilty to manslaughter by reason of provocation. The sentencing judge must therefore, approach his task by assuming that:

(1) the offender had, at the time of the killing, lost self-control; mere loss of temper or jealous rage is not sufficient;

^{(2) the offender was caused to lose self-control by things said or done, normally by the}

person killed;

(3) the offender’s loss of control was reasonable in all the circumstances, even bearing in mind that people are expected to exercise reasonable control over their emotions and that, as society advances, it ought to call for a higher measure of self-control; and

(4) the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.

119. None of those considerations apply here. For this reason therefore, I decline to apply the authorities as submitted by Counsel.

The Operation of Felony/Murder Rule Similar to the Rationale for finding a Secondary Party to a Joint Enterprise

Guilty of Manslaughter on a Charge of Murder.

120. In respect of the question of what circumstances would be appropriate for a Court to impose a term of years on a conviction for murder based on the felony/murder rule, State Counsel has urged this Court to approach the comparison in another way. Learned Counsel has asked the Court to find that in some situations the operation of the felony/murder rule may in many respects, be similar to the rationale for finding a secondary party to a joint enterprise guilty of manslaughter on a charge of murder.
121. She has argued that in Richard Anthony Daniel v. The State,⁵⁹ the Court of Appeal sought to explain the difference in the progression of the law of Trinidad and Tobago from the law in the United Kingdom in relation to the felony/murder rule. At paragraphs 88-89 of that case the Court held as follows:

“88. The policy focus in Trinidad and Tobago is not on intent but on the foreseeable consequences of violent conduct. By way of contrast, section 2A of our Criminal Law Act makes it clear that a person who embarks upon an arrestable offence involving violence who kills someone in the course or furtherance of that offence (or any other arrestable offence involving violence) is guilty of murder “even if the killing was done without intent to kill or cause grievous bodily harm.” ... 89. The policy underpinning the felony/murder rule in Trinidad and Tobago is to punish those who commit felonies involving violence, full stop! If, as a result, someone is killed then the perpetrator has to take full responsibility for his actions. It does not apply to all felonies, only those involving violence. That is the path that our society has chosen.”

122. In cases where a jury returns a verdict of manslaughter against a secondary party to a joint enterprise on a charge of murder, the basis of their verdict is a finding that the accused, as a secondary party, realised or foresaw that the principal might inflict physical harm falling short of grievous bodily harm and participated in the joint enterprise with that foresight.

123. Such an accused can be said to have “embarked upon the commission of an arrestable offence involving violence” (namely, some enterprise where an offence falling short of the infliction of grievous bodily harm is to be committed) and is liable notwithstanding that he has no intention to kill or cause grievous bodily harm. Expressed in this way, the similarities between a manslaughter verdict for a secondary party to a joint enterprise on a charge of murder and felony/murder are patent.

124. Additionally, such cases often involve a joint enterprise to rob, in which one or more of the parties are armed, and death results. As such, it is argued they are factually similar to the case at Bar albeit that none of the accused in this case were armed.

⁵⁹ (unreported) Crim App. No. 51 of 2008

125. Having regard to the foregoing, the State referred the Court to several judgments of the Court of Appeal where a secondary party to a joint enterprise on a charge of murder pleaded guilty or was found guilty of the lesser offence of manslaughter. These cases, it was submitted, provide an appropriate sentencing tariff for the case at Bar.

Cases of Manslaughter verdict/guilty plea of secondary party to joint enterprise to murder

126. In Vivian Clarke, Steve Mc Gillvery a/c ‘Boops’ and Pernell Martin v. The State⁶⁰ the appellants were found guilty of manslaughter on a charge of murder where they were party to a plan to kidnap the deceased for ransom but took no part in her killing. They were sentenced to thirty (30) years imprisonment with hard labour. Those sentences were affirmed by the Court of Appeal.

127. In Shelley-Ann Anganoo v. The State ⁶¹the appellant pleaded guilty to manslaughter on a charge of murder where the deceased was robbed and beaten by the appellant and three others. The Court of Appeal reduced a sentence of twenty (20) years imprisonment with hard labour to fifteen (15) years imprisonment with hard labour.

128. In Jawan Jaggernath and Andrew Kanhai v. The State⁶² the appellant Jaggernath pleaded guilty to manslaughter on a charge of murder where the deceased was planassed with a cutlass for half an hour. The Court of Appeal varied a sentence of twenty (20) years hard labour to fifteen (15) years on account of discounts given for the appellant’s youth, his guilty plea, albeit a late one, and time spent in custody.

129. In Kelvin Bailey v. The State⁶³ the appellant was convicted of manslaughter on a charge of murder and sentenced to life imprisonment with a condition that he not be released before twenty (20) years. The appellant was a party to a plan to rob a house and the occupant of the

house was strangled by the appellant’s confederate while he stood watch outside the

⁶⁰ (unreported) Cr. App. Nos. 28-30 of 2009

⁶¹ (unreported) Cr. App. No. 39 of 2008

⁶² (unreported) Cr. App. Nos. 16 & 18 of 2007

⁶³ (unreported) Cr.A. 19 of 2000

premises. The appellant assisted in carrying the deceased to a pond which he was pushed into and received $575 from his confederate for his assistance in the enterprise. The Court of Appeal reduced the appellant’s sentence to twelve (12) years hard labour taking into account that the appellant had already spent four and a half (4 ½) years in custody and that the appellant appeared to be “a reluctant participant in this venture...influenced more by

‘peer pressure’, than a real desire to take part.”

130. In Anthony Nevada Johnson v. The State⁶⁴ the appellant was charged with murder and found guilty of manslaughter. The appellant was together with another man who was armed with a gun. They attempted to rob former Commissioner of Prisons, Michael Hercules of his vehicle. The appellant’s confederate shot the deceased, who returned fire and shot him as well. He was sentenced to seven (7) years imprisonment with hard labour, a sentence which was affirmed by the Court of Appeal.

131. In Ramsingh Jairam and Krishna Persad v. The State⁶⁵, the appellants were tried and convicted of murder. After a series of appeals, the matter was remitted to the Court of Appeal. The Court of Appeal held that in respect of the second appellant, the trial judge failed to direct the jury on the question of foresight by a secondary party. The court therefore allowed the appeal against conviction and substituted one of manslaughter.

132. The offence was committed in particularly brutal circumstances. The deceased and his girlfriend were robbed at gunpoint. The first appellant shot the deceased twice. The two appellants then took the deceased’s girlfriend to another location where she was robbed and raped by both appellants and shot in the vagina by the second appellant.

133. The Court of Appeal imposed a sentence of twenty (20) years imprisonment to run from the date of his first conviction because he had spent sixteen (16) years in custody and was placed

on death row on two occasions.

⁶⁴ (unreported) Cr. A. No. 15 of 2001

⁶⁵ (unreported) Cr. App. Nos. 86 & 87 of 1995

134. In Orie Andrews v. The State⁶⁶ the appellant was jointly charged with two others for murder and found guilty of manslaughter. He was sentenced to a term of twelve (12) years imprisonment with hard labour. The appellant and others had beaten the deceased and the motive appeared to be related to a drug deal gone wrong. The Court of Appeal reduced the sentence to one of ten (10) years imprisonment with hard labour from the date of his conviction because the sentencing Court did not properly consider that the appellant had spent six (6) years awaiting trial.

135. In Ian Cauldero and Nigill Francois v. The State⁶⁷ the appellants were convicted of murder but on appeal to Privy Council their convictions were reduced to manslaughter and the matter remitted to the Court of Appeal to consider sentence. The appellants went up to a car in which the deceased was the front seat passenger and after a conversation with its occupants, the deceased was shot by one of the appellants. The Court of Appeal imposed a sentence of ten (10) years imprisonment with hard labour to run from the date of the appeal having taken into account that the appellants were of previous good character and they had been in custody since 1991, some eight years before the date of the appeal.

136. In Nigel Deonarine v. The State⁶⁸ the appellant was found guilty of manslaughter on a charge of murder. The Court of Appeal affirmed the sentence of twenty five (25) years imprisonment to run from the date of the appeal. The sentencing court had ordered that the sentence run from the date of arrest, which was five years earlier. The deceased was plying his taxi for hire when the appellant and two other men boarded the taxi and attempted to rob him of it. He escaped from the vehicle and was shot by one of the appellant’s confederates. The appellant took over the wheel and drove the vehicle at him, knocking him down.

137. The appellant’s co accused, Richard Nanton, was fifteen (15) years old at the time and was party to the plan to rob but did not shoot the deceased or drive the taxi. The Court imposed

a sentence of fifteen (15) years imprisonment beginning from the date of his arrest. (see the

⁶⁶ (unreported) Cr. A. No. 21 of 98

⁶⁷ (unreported) Cr. A. Nos. 70&71 of 1996

⁶⁸ (unreported) Cr. App. No. 50 of 1994

Transcript of proceedings for Cr. No. 131 of 1992 The State v. Richard Nanton and Nigel

Deonarine) This accused did not appeal.

138. On the basis of these authorities, the State submitted that a range of sentence between fifteen (15) and thirty (30) years imprisonment is appropriate to the case at Bar.

The Comparison Is Still Not Appropriate- For Sentencing In This Case

139. This Court accepts that as a general principle some comparison may, in appropriate cases, be drawn between some but not all cases where persons are convicted of murder on the basis of the felony/murder rule and cases where a secondary party to a joint enterprise on a charge of murder has either pleaded guilty or was found guilty of the lesser offence of manslaughter. However, in this Court’s view that comparison for the purpose of this sentencing exercise, on the particular facts of this case is still not appropriate for the reasons that I will articulate later in this ruling.

140. Additionally, although in cases where a jury returns a verdict of manslaughter against a secondary party to a joint enterprise on a charge of murder, the basis of their verdict is a finding that the accused, as a secondary party, realised or foresaw that the principal might inflict physical harm falling short of grievous bodily harm and participated in the joint enterprise with that foresight- that limited amount of foresight is not at all the case here. Indeed, the facts of this case demonstrate exactly the opposite state of mind on the part of all three Accused.

“TE RM OF Y EA RS” - WHAT IS THE APPROPRIATE RANGE- ASSISTANCE FROM OTHER JURISDICTIONS?

Assistance from The Practice Statement of May 31st 2002

141. In determining the appropriate tariff to be imposed in cases where an Accused is to be sentenced to a term of years, local Courts have often relied on the ranges in the Practice Statement dated 31^st May 2002⁶⁹. Although, they do not specifically deal with sentencing for

murder on the basis of the felony/murder rule, it is nevertheless with regard to the question

⁶⁹ [2002] All ER (D) 513

of imposition of a term of year in appropriate cases, that I find the ranges in the Practice Statement most helpful. In respect of adult offenders convicted of Murder the Practice Statement dated 31st May 2002, gives the following guidelines:

^{“The Normal Starting Point of 12 Years}

“10. Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph. 11. The normal starting point can be reduced because the murder is one where the offender's culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self- defence; or (e) the offence was a mercy killing. These factors could justify a reduction to 8/9 years (equivalent to 16/18 years).”

“The Higher Starting Point of 15/16 Years

12. The higher starting point will apply to cases where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was 'professional' or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robber etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or

multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.”

“Variation Of The Starting Point

13. Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case. 14. Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time. 15. Aggravating factors relating to the offender will include the offender's previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk. 16. Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation. 17. Mitigating factors relating to the offender may include: (a) the offender's age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty.”

“Very Serious Cases

18. A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender's eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.”

WHAT THEREFORE IS THE APPROPRIATE SENTENCE IN THIS CASE?

General Sentencing Considerations

142. In this case, in determining what is the appropriate sentence the Court, in addition to being guided by the well-known sentencing principles established in the relevant authorities, (Mano Benjamin v R⁷⁰ ), takes into consideration the following factors.

143. The Court reminds itself that in making a choice of punishment due regard must be paid to both the crime and the criminal.⁷¹ According to the Court in Bachan Singh⁷²- “[w]hat is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because

‘style is man’ ... In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability.”⁷³ I therefore, bear these sage statements in mind.

Relevant Factors- Generally

144. The Court also notes that on the facts of this case to which the Accused have pleaded guilty, although there is no evidence of the use of any “dangerous” weapon, the evidence is that the deceased was strangled with very his own belt and severely beaten. When he fell unconscious or dead, he was elbowed to the throat by Accused No. 3 and sometime thereafter his body was thrown in the Mitan River. Indeed, the agreed facts revealed that while his body was in the trunk of the car, the Accused drove around and went to a gas

station where they bought and ate snacks with the money they had taken from the deceased.

⁷⁰ (1961) 7 WIR 459

⁷¹ Bachan Singh v State of Punjab AIR 1980 SC 1980 @p 199

⁷² Bachan Singh v State of Punjab AIR 1980 SC 1980 @p 199

⁷³ Bachan Singh v State of Punjab AIR 1980 SC 1980 @p 199

Aggravating factors

145. The State submitted, and I agree, that the following are aggravating factors in this case, namely- (1) the prevalence of this type of offence; (2) the fact that the offence was committed in pursuit of financial gain, namely the stealing of the motor vehicle of the deceased; (3) the fact that attempts were made by all three Accused to conceal the commission of the offence, and that in particular they did so by disposing of the body of the deceased; and (4) the fact that the deceased was the father of a young child and that he pleaded with the Accused for his life. These are all matter which impact on the culpability of each Accused. I have given them due consideration and, for the reasons that I shall outline hereinafter, I find that they are of significant weight in the particular circumstances of this case.

Mitigating Factors

146. Counsel also submitted that the following are mitigating factors in this case, namely- (1) the relative youth of the Accused; (2) the fact that they each tendered an early guilty plea; (3) in respect of the first accused, Alexander Don Juan Nicholas, the fact he did not “participate” in the actually beating of the deceased; and (4) the fact that the Accused co-operated with the police and confessed their involvement in the offence. The matters of their relative youth, the contention by Counsel for Accused No.1 that he did not actually participate in the beating of the deceased, and the fact that the Accused co-operated with the police are all matter which go towards personal mitigation in respect of each Accused. I have given these matters due consideration in the particular circumstances of this case, and for the reasons that I shall outline hereinafter, I respectfully find that they carry very little weight.

How is the Court to treat with guilty plea?

147. What however, is to be made of the guilty pleas and how should the Court treat them in the context of this case? Obviously, a guilty plea is a matter that the Court takes into account when imposing sentence. Not only is the fact of the plea taken into account but, also the time when it was made.
148. The Court of Appeal in Shawn Parris v The State Cr. App. No. 12 of 2004, cited extensively from the decision of the English Court of Appeal in R v March [2002] EWCA Crim. 551, where the law concerning the subject of discount for guilty pleas was summarised. Warner J.A in her judgment delivered on behalf of the Court of Appeal concluded that the directions in March provided some guidance to the approach in this jurisdiction, which the learned Justice of Appeal summarised as follows- (1) It is a general principle that a guilty plea attracts some discount. (2) There are well established exceptions for example, (a) where the plea was of a tactical nature; (b) in the interest of the public; (c) the seriousness of the offence; (d) on common sense grounds; (e) the existence of an exception does not automatically mean that the maximum sentence must be imposed. (3) All the circumstances must be taken into account.

149. In Parris the deceased was shot and killed in her car by the appellant, Shawn Parris. The appellant had been hired to kill her. On the day in question, he went to her place of employment, disguised as a patient. His arm was in a sling and he was armed with a gun. He stood in the car park and waited for the deceased and as she entered her car, he walked up to her and shot her five times at point blank range. She died on the spot. He pleaded guilty to manslaughter and was sentenced to life imprisonment. In sentencing Parris the trial Judge did not give the accused the benefit of any discount for his guilty plea. The Court of Appeal was of the view that the trial Judge was guided by the correct principles in not doing so in that (i) he regarded the plea as tactical in that it arose out of an apparent bargain struck between the applicant and the D.P.P., and there was a clear advantage to him to avoid the possibility of the imposition of the death penalty; (ii) he was clearly of the view that the term was necessary for the protection of the public- he regarded the applicant to be “a dangerous man” that is to say as a risk to the safety of the public; (iii) he was mindful of the public interest- he said that the court had a duty to set and follow standards of punishment so that every member of the public will know what punishment they may reasonable expect for deviant behavior; and (iv) he recognised the seriousness of the offence. These circumstances, the Court of Appeal found, fell squarely within the exceptions in March and disentitled Parris from the benefit of any discount in his sentence.
150. In R v Buffrey (1993) 14 Cr. App. R. (S.) 511, CA the Court made it clear that there was no absolute rule as to what discount should be applied. According to Lord Taylor C.J., each case had to be judged by the trial judge on its own facts and there would be considerable variance as between one case and another. As a general guidance, however, the Lord Chief Justice said that something of the order of 1/3 would often be an appropriate discount from the sentence which would otherwise be imposed on a contested trial. Although Buffery was a fraud case the Court of Appeal in Jaggernath and Kanhai v The State Cr. App. Nos. 16 & 18 of

^{2007 at Para. 41 per Weekes J.A., recognised that similar considerations apply in a murder}

case with respect to the benefits that a guilty plea attracts.

151. In the instant case, the Accused’s pleas to murder on the basis of the felony/murder rule were in my view, tendered at the earliest possibility opportunity and the circumstances, in which they were tendered, do not lead me to conclude that the pleas were tendered for tactical reasons. However, the facts of this case, to which the Accused have pleaded reveal that they have indeed committed a very serious and senseless crime against a vulnerable taxi driver. In that regard therefore, even though a plea of guilty has been tendered, a discount for such a plea would only have any real or practical effect if the Court is minded to impose a term of years as opposed to a life or death sentence. In other words, with respect to the issue of the appropriate discount being given to the Accused for their early guilty pleas, this would of course only be a relevant consideration if the Court proposes to impose a term of years on the Accused, and not a life or death sentence.

Time Spent on Remand

152. It was also submitted on behalf of all three Accused that they should be given full credit for the time that they spent in custody awaiting trial. The question as to the proper approach that a sentencing judge should take to time spent in custody prior to sentencing was recently considered by the Court of Appeal in Walter Borneo v The State⁷⁴. The Court cited the case of Callachand & Anor. v The State of Mauritius⁷⁵, in which the Privy Council took the view that

any time spent in custody prior to sentencing should be taken fully into account when

⁷⁴ Cr. App. 7 of 2011

⁷⁵ [2008] UKPC 49

assessing the length of sentence to be served. The court also cited the decision of the Caribbean Court of Justice in R v da Costa Hall⁷⁶, which followed the decision in Callachand. Narine JA, in delivering the Judgment of the Court of Appeal, gave the following guidelines:

“... pre-sentence time spent in custody should be fully taken into account in imposing sentence. The trial judge should clearly set out what he considered to be the appropriate sentence taking into account the seriousness of the offence, and all the mitigating and aggravating factors. From this sentence, he should deduct any pre- sentence time spent in custody. If the judge decides not to follow the prima facie rule of granting substantially full credit for time served prior to sentence, he should set out his reasons for doing so. In the interest of transparency, whether he grants full credit or not, a sentencing judge has to explain how he has dealt with pre-sentence time spent in custody.”

153. The Court of Appeal also took the view that prevailing conditions on remand in our prisons are such that the entire period spent in pre-sentence custody ought to be discounted from the sentence that the trial judge arrives at having taken into account the gravity of the offence as well as mitigating and aggravating factors.

154. In the recent Court of Appeal decision of Walter Borneo v. The State (unreported) Cr. App: 7 of 2011 the Court held as follows (at pages 19-20)- “...the entire period spent in pre- sentence custody ought to be discounted from the sentence that the trial judge arrives at having taken into account the gravity of the offence, and mitigating and aggravating factors. The judge should state the appropriate sentence so arrived at, then deduct the time spent on remand awaiting trial for the offence, showing in a clear and transparent fashion how the sentence to be served is arrived at.”

155. In respect of the instant case, I have noted that by letter dated October 16, 2012 under the hand of the Commissioner of Prisons, information was provided to the State that each Accused has spent a total of 3,390 days or the equivalent of 10 years and 24 days in custody

on remand on this indictment, as at October 16, 2012. Their guilty pleas were entered on

⁷⁶ (2011) 77 WIR 66

October 25, 2012 and as such the total time spent in custody on remand on this indictment up to the time of the taking of the pleas, would be 10 years and 33 days.

156. Where the Court considers imposing a term on years as the appropriate sentence, this time spent on remand should of course be discounted from any sentence that the Court proposes to impose on the Accused following guidance in Borneo. However, again this would only be a relevant consideration if the Court proposes to impose a term of years on the Accused, and not a life or death sentence.

Previous Convictions

157. All three Accused have previous convictions. Accused No. 1 has four (4) previous convictions arising out of on one incident for malicious damage, assaulting a police officer and assault with intent to prevent lawful apprehension. Accused No. 2 has two previous convictions for housebreaking and larceny. Accused No. 3 has three (3) previous convictions arising out of the same incident for which the first accused was convicted for malicious damage, assaulting a police officer and assault with intent to prevent lawful detention.

158. It is also noteworthy, although not as an aggravating feature, but as part of their overall conduct, that mere days after they killed Mr. Boodoo these three Accused were all at it again and found themselves committing the robbery with aggravation, kidnapping and false imprisonment of Nazim Dean- the other indictment to which they have pleaded guilty before this Court. I note this not at all as an aggravating feature in determining the issue of the appropriate sentence for the murder of Jerry David Boodoo, but merely an observation about the general modus operandi of these three Accused.

The Probation Reports

159. The Probation Officer’s Reports of all three Accused showed that they each had expressed regret and remorse and all came from fairly decent families. Accused No. 1 is depicted as an “intelligent” and charismatic individual. He is said to have seven O’Level subjects. Accused No. 2 is the father of an eleven year old daughter who he has never met. Although the product of an abusive family situation the report indicates that he was also exposed to an

extended family environment that attempted to expose him to the proper moral and societal values. In respect of Accused No. 3, his report revealed that he has a daughter who was born during his remand. Many persons who were interviewed expressed the view that he made a poor choice influenced by negative peers. The matters raised in these reports are all important to the rehabilitative aspect of the Court’s sentencing exercise and I have given them due and indeed, full regard in the context of this case.

CULPABILITY

Culpability

160. I now come to the question of the criminal culpability of the Accused in this matter. In my view based on a proper and mature assessment of the evidence in this case, and in particular the agreed facts to which the Accused have pleaded, the culpability of all three Accused is extremely high. I also respectfully agree with the submission of learned Counsel for Accused No. 3 and that of learned Counsel for the State when they contended that no real or practical distinction can properly be drawn between any of the Accused for the purpose of their culpability in this case.

What is Culpability of the Accused in This Case?

161. I would define culpability as the degree of an accused blameworthiness in the commission of an offence. As I have said, in the particular circumstances of this case, I adjudge the culpability of all three Accused to be extremely high. In determining this question of culpability in this case, the Court looks at, inter alia, three things, namely- (1) the plan to rob; (2) the fact that at some point they actually formed an intention to kill or do grievous bodily harm to Jerry David Boodoo; and (3) the post-offence conduct of the Accused’s.

The Plan to Rob

162. It is clear that the initial plan was to rob. There is no dispute about that. But during the course of the robbery, Boodoo actually pleaded with them to simply take the car and let him go as he had a little daughter to care for. It was open to them at that stage to simply eject him from the vehicle, take the car and spare Mr. Boodoo’s life. But they all chose not to do

that. Indeed, not one of the Accused said, suggested or otherwise intimated to the others that they should simply take the car and leave Mr. Boodoo alone, which as I have said, was a course open to them at all times before they took Mr. Boodoo’s life.

The Intention to Kill or Do GBH

163. When however, No. 3 said, “This man done see too much already” the plan changed and they formed an intention to kill or do him really serious harm. Accused No. 3 was aided and abetted by Accused No. 2 who along with Accused No. 3 continued to beat and choke the deceased; and all of this was facilitated by Accused No. 1, who merrily drove around in the car while this was being done. Accused No. 1, at no time sought to distance himself from what the other two were doing in the back seat, nor did he express and protestation against what the other two were doing to Boodoo in the back seat of the car. Therefore, in my view he was extremely and equally culpable, not only by his tacit acquiescence in the brutality being meted out to Boodoo by the other two Accused but also by his active facilitation of their unlawful actions. Indeed, he sat callously by while Accused Nos. 2 and 3 took of the belt of Mr. Boodoo, placed it around his neck and choked him with it until he could no longer breathe and there was heard a cracking noise, whereupon the deceased became lifeless and motionless in the back seat of the car.

164. In that regard the lawyer for Accused No. 3 and State Counsel are quite correct. There is no distance between any of the Accused for the purposes of their culpability. The words of Accused No. 1 when he said, ex post facto, “All yuh kill the man boy”, are of little exculpatory value in that regard and must be weighed against the back drop of post-offence conduct of all three men. The only reasonable inference from the clear and unambiguous narrative of events that unfolded after the Accused hauled Mr. Boodoo into the back seat and took control of his vehicle, is that at that point they had possessed and shared an intention to kill or do Boodoo Grievous Bodily Harm.

The Post-Offence Conduct

165. This was one of the most appalling display of reckless indifference to life that can be imagined. After the choking and beating of Boodoo in the back seat of the car, Boodoo’s body became lifeless. Notwithstanding that, Accused No. 3 then proceeded to elbow the deceased several times in his throat. Thereafter, the three (3) Accused and Barthol did the following: They put him in the trunk of the car. They drove around for a while with him in the trunk, where he could have suffocated if he was not already dead at that time. They went to a gas station, bought snacks with the money they had taken from Boodoo and ate them. They then drove to the Mayaro River where they threw the body over into the river.

166. It was argued by their respective lawyers that the Court should give them the benefit of the doubt when the Accused Nos. 1 and 3 when they say, as they did to the police, that they did not know if Boodoo was dead or unconscious when they put him into the trunk of the car and then eventually threw his body into the river. In other words, they are suggesting that they only thought Boodoo was conscious at that time. But even if that were the case, what is the irresistible inference to be shown from the fact of them throwing the lifeless/unconscious body of a man they had just strangled and beaten into the river? Surely it was to finish him off; and also no doubt, regardless of whether he drowned or not, to conceal the body. Surely if not before, at that time there was a clear intention to kill Boodoo on the part of all of them.

167. Additionally, one must truly and carefully examine the facts to which the Accused have pleaded.

Relevant Facts in Determining Culpability

168. Accused Nos. 2 and 3 were struggling throughout with the deceased. Accused No. 3 asked the deceased where the money was and he told them it was on top the driver’s seat. Accused no. 1 found the money, which was $63.00. The deceased begged the men, telling them he had a little daughter to see about and to take the car and go. Accused No. 3 told Accused No. 1 “this man see too much” and told Barthol “youth man, you have to stay quiet on this one eh.” Barthol asked Accused No. 1 if they were really going to kill the man. Accused Nos. 2 and 3 continued to beat and cuff the deceased. They took out the deceased’s belt and

were choking him with it. Barthol heard the deceased gasping for breath and then he heard a crack. Accused No. 3 said “he dead”. Accused No. 1 said “allyuh kill the man boy, that is lifetime in jail” and steupsed. Accused No. 1 stopped the car and Barthol and the three accused got out of the car and put the deceased in the trunk. The men returned to the car and went to a gas station. Accused No. 1 put gas in the car and bought soft drinks and sweet bread with the $63.00 they got from the deceased. Barthol and the three accused then went to Manzanilla and stopped at the Mitan Bridge where they took the deceased out of the trunk and threw his body over the bridge into the Mitan River.

169. After that they went casually along and negotiated the sale of the car.

Evidence of Mens Rea of Each Accused

Accused No. 1

170. According to the evidence of Junior Barthol, when Accused No. 3 said “he dead” Accused No. 1 said, “allyuh kill the man boy, that is lifetime in jail” and steupsed. Accused No. 1 stopped the car and he, together with the other accused put the deceased in the car trunk. He drove to Manzanilla where he and the other accused threw the deceased into the Mitan River. In his oral statement, he said “I only drive the car”. According to his written caution statement, he said that he did not know the deceased was dead when he was put in the trunk or thrown in the river and he did not help to do these things.

Accused No. 2

171. According to the evidence of Junior Barthol, Accused No. 2 beat and cuffed the deceased together with Accused No. 3. He and Accused No. 3 took out the deceased’s belt and choked him with it. He and the other accused put the deceased in the car trunk and threw the deceased into the Mitan River. In his oral statement he admitted to being present but does not admit to cuffing, beating or choking the deceased. He also does not admit to putting the deceased in the trunk or throwing him in the river. In his written caution statement, he said “we placed the man in the trunk” after he fell unconscious and “we all thought that the man was alive” when they threw him in the river.

Accused No. 3

172. According to the evidence of Junior Barthol, Accused No. 3 beat and cuffed the deceased together with Accused No. 2. Accused No. 3 told Accused No. 1 “this man see too much” and told Barthol “youth man, you have to stay quiet on this one eh.” Accused No. 3 then took out the deceased’s belt and he, together with Accused No. 2, choked him with it. The deceased was heard gasping for breath, then there was the sound of a “crack” and at the end of that onslaught, Accused No. 3 said “he dead”. Thereafter, he and the other Accused put the deceased in the car trunk and threw the deceased into the Mitan River. In his oral statement, he said “I only hold the man in ah headlock. I don’t know if he dead when we throw him in the river.” In his written caution statement, he said “we stopped and put him [the deceased] in the trunk”. He also said that he only realised the deceased was dead when they stopped to take him out of the trunk.

173. All of these things raise questions in this Court’s mind as to whether each, any or all of the Accused acted with reckless indifference to human life in respect of their involvement in the death of Jerry Boodoo.

Reasons For Decision

174. In my view they clearly did. Indeed, I consider this case to be one which falls squarely into category of reckless indifference to human life as outlined in the principle which I have outlined above. I make this finding for the following reasons. They formed an intention to kill Mr. Boodoo and acted with a reckless indifference as to whether death occurred. In this case, I am satisfied beyond reasonable doubt that there was reckless indifference to human life on the part of all three Accused in respect of their involvement in the death of Jerry Boodoo. This reckless indifference to human life is evident from the facts to which I have already referred and is further demonstrated by the fact that after dumping the body they then merrily went to Sheldon Abdool and negotiated the terms of the disposal of the car. They rubbed it down to remove fingerprints. At no time during that discourse did any of them spare a thought or express any remorse for Boodoo when they had just beat, strangled and thrown him into the river.
175. In fact, on the words of Accused No 2 they went back and “made a pact”. Thereafter, to add insult to injury 3 to 4 days later they were at it again when they robbed, kidnapped and falsely imprisoned another man.

They Formed an Intention To Kill

176. It was clear that at the time when the choking and beating of Mr. Boodoo was taking place in the car, all three Accused formed the intention to kill or do him grievous bodily harm. In this context, I do not mean simply that they formed a desire or purpose to achieve the death of Mr. Boodoo. I mean that when an Accused acts, as these Accused did, with the knowledge that his behavior is substantially likely to cause a result, he is to be considered as having intended it. In my view, the evidence in this case clearly demonstrated that the Accused's formed a specific intent to cause death. But “intent” is more than a desire to achieve a specific result. When an Accused acts with knowledge that his behavior is substantially likely to cause a result, he is considered to intend that result. The Accused each gave a statement to the police indicating that they intended to merely rob and did rob the deceased of his car. However, when one marries that with the evidence of Barthol as to what transpired during and after the robbery, it is reasonable to conclude, in the absence of any evidence to the contrary, that a person who takes the belt of another and chokes him with it until the latter stopped breathing and then takes him, locks him in the trunk or a car, drives around with him in the trunk, and then dumps his lifeless body into a river in the dead of night- such a person either had the purpose of causing death or had the substantial knowledge that death would result. No evidence was offered to contradict the natural inference from the Accuseds’ actions.

177. All counsel urged the Court to interpret these facts to mean that the Accused only had an intention to rob the deceased and nothing more. Moreover, they have asked this court to find that if the State could prove intention to kill they would not have proceeded on the basis of the felony/murder rule. I disagree. It is clear from the narrative of events that at the earliest when they were in the car choking and beating the deceased that the Accused intended to kill him. Even if that were not sufficiently clear from the evidence by the time

they proceeded to dump his lifeless body into the river, believing him to be unconscious, the only reasonable inference is that either they had the purpose of causing Jerry Boodoo’s death or had the substantial knowledge that his death would result from their action. In my view the most generous interpretation of the facts to which they have pleaded would suggest merely a lack of premeditation rather than a lack of specific intent to kill.

178. Even in respect of Accused No. 1, it cannot be said that his participation was relatively minor vis-à-vis the other participants. The facts to which he has pleaded established that he was present when the murder took place and that it occurred as part of and in the course of the robbery of Mr. Boodoo. The death of Mr. Boodoo would not have occurred but for his assistance. It is of little significance that he merely drove the car while Accuseds Nos. 2 and

^{3 were in the back seat choking the deceased and did not specifically intend that the victims}

die. Nor does it mater in the context of this case, that he did not plot in advance that the killing would take place, or that he did not actually inflict any physical injuries to the deceased unlike the other two accused. The criminal association was formed, supported and carried out regardless of the probable consequences that human life would be taken to ensure the success of the criminal enterprise. At a minimum, he sat by, driving along merrily, while his companions brutally beat and choked Mr. Boodoo with his belt until he could no longer gasp for breath and there was heard by Barthol, the cracking sound that preceded Accused No. 3’s announcement that Boodoo was dead.

179. In respect of Accused Nos. 2 and 3, I am firmly of the view based on the facts to which the Accused have pleaded and the other evidence in the case that these two men acted with the knowledge that their behaviour was substantially likely to cause Mr. Boodoo’s death. In my view therefore, they intended that result. The evidence of the pathologist did not rule out strangulation as a possible cause of Mr. Boodoo’s death. With no evidence to the contrary, it is reasonable to conclude that one who undertakes to strangle another human being obviously had the purpose of causing death or the substantial knowledge that death could result. Learned counsel for Accused No. 3 advanced a theory that the intention of his client in so doing was merely to scare the deceased so that he would “keep his mouth shut”. Given the fact that the deceased was pleading for his life during the entire ordeal, and that

even his pleas to let him live because he had a little daughter did not manage to assuage his assailants, this Court finds that "theory" utterly implausible. Both men actively participated in the events leading to the eventual death of Mr. Boodoo. It is reasonable to conclude that the Accused intended to kill Mr. Boodoo or knew with substantial certainty that their actions would cause his death.

Reckless Indifference to Human Life

180. The Accused were all major participants in the underlying felony of robbery and in the post robbery conduct they acted with reckless indifference to human life. It is clear that they each foresaw or realised that their actions would probably cause the death of the deceased but they continued with those actions regardless of the risk of death.

SENTENCE

181. The Court therefore sentences each of the Accused as follows: (1) Alexander Don Juan Nicholas, is hereby sentenced to life imprisonment, with hard labour and without the possibility of parole. (2) Gregory Tan, is hereby sentenced to life imprisonment, with hard labour and without the possibility of parole. (3) Oren Lewis, is hereby sentenced to life imprisonment, with hard labour and without the possibility of parole.

182. For the avoidance of doubt, these sentences are intended to be for the natural life of each

Prisoner.

Indictment No. 109 of 2007 – Kidnapping, Robbery with Aggravation and False Imprisonment of Nizam Dean

INTRODUCTION

183. The Court now proceeds to give its ruling in respect of the other indictment: Indictment No.

109 of 2007. By Indictment No. 109 of 2007, the three Accused were jointly charged with the offences of kidnapping, robbery with aggravation and false imprisonment of one Nazim Dean (“the virtual complainant”). The particulars of offence are that on the night of August

30, 2002 Accused No. 1 along with Accused No. 2 and Accused No. 3, kidnapped and falsely imprisoned the virtual complainant and robbed him of his blue Toyota Corolla PAY

4412, a gold chain, a watch, a wallet, $650.00 cash and two bank cards. The three accused have also pleaded guilty to all three offences.

FACTUAL BASIS OF PLEA

184. The factual bases upon which the Court will proceed to sentence each of the accused in respect of the offences in Indictment No. 109 of 2007 are that on 30^th August, 2002 the virtual complainant, Nazim Dean, was plying his blue Toyota Corolla PAY 4412 for hire from Arima to Malabar at around 11:45 p.m. The virtual complainant picked up a woman and the three accused by the market in Arima. The female passenger was in the front seat while the three accused sat in the back. The three accused said they were going to Phase IV while the female said she was going to Phase I.

185. The virtual complainant dropped off the female passenger and was proceeding to Phase IV.

He slowed down at the school on Flamingo Avenue. Accused No. 2 pulled the handbrakes of the car and locked the virtual complainant’s neck. Accused No. 1 then got out of the car and went to the driver’s door. Accused No. 2 began pulling the virtual complainant into the back seat while Accused No. 1 was pushing him from the front. They put the virtual complainant’s jersey over his head and cut a string from his pants to bind his feet. Accused No. 3 got out of the car and went in the front passenger seat while Accused No. 1 drove.

186. The three accused took the virtual complainant’s gold chain, watch, wallet, $650.00 cash and two bank cards and demanded the PIN number for the cards. They beat the virtual complainant about his body. The three accused then put the virtual complainant in the trunk of the car and drove off.

187. They drove for about 15-20 minutes then stopped the car, took the virtual complainant out of the trunk and beat him again. They threw him in a patch of grass and drove off. The virtual complainant freed himself and realised he was at the Caroni Cremation site. He reported the matter to the police and was taken for medical treatment on 31^st August, 2002.

188. On 23^rd September 2002 the virtual complainant identified Accused Nos. 2 and 3 at

Identification Parades.

189. Accused No. 1 gave a caution statement in which he said that on the Friday before Independence 2002, about 10 p.m. he and the other two accused went by the Arima Market where they boarded a blue corolla car to go Malabar. When they reached in the back of Malabar Stadium, Oren (Accused No. 3) told the man to stop, locked his neck and they pulled him in the back seat. Accused No. 1 went in the driver’s seat and drove. The other two accused were beating the driver. Oren (Accused No. 3) told him that the virtual complainant had a bank card and they went to a bank in Central and got about $200. They then dropped the man in Caroni and went to Grande Royal Bank where Accused No. 3 withdrew $40. They then dropped the car for Sheldon.

190. The vehicle was recovered, but it bore a different registration number, that is registration number PAP 4482. The virtual complainant identified the vehicle as his by a dent to the back of the car in the area of the bumper and trunk, the number PAY 4412 scratched on the glass and a crack in the bonnet paint. The vehicle was photographed and returned to the virtual complainant, who kept the two license plates bearing the registration number PAP

^4482.

191. The following are the exhibits upon which the State relies, all of which were admitted into evidence by the Court with the consent of the parties: CE 1 – medical report of Nazim

Dean; CE 2 – caution statement of Accused No. 1; CE 3 – photograph; and CE 4 – license plates.

THE LAW

Kidnapping

192. The offence of kidnapping is a common-law offence and thus, is an offence for which there is no penalty prescribed by statute. However, in the English Court of Appeal case of R v Spence and Thomas⁷⁷Lord Lane C.J. gave the following general guidelines on length of sentence in kidnapping:

“... as with many crimes so with kidnapping, there is a wide possible variation in seriousness between one instance of the crime and another. At the top of the scale of course, come the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than eight years’ imprisonment or thereabouts. Where violence or firearms are used, or there are other exacerbating features such as detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often arise as a sequel to family tiffs or lovers’ disputes, and they seldom require anything more than

18 months’ imprisonment, and sometimes a great deal less.”

193. In summary, therefore, according to Spence and Thomas:

(i) Violence or firearm used or exacerbating features such as detention of victim over long period of time – more than 8 years’ imprisonment.

(ii) Carefully planned abductions where victim used as hostage or ransom money demanded – seldom less than 8 years’ imprisonment.

^{(iii) Scarcely kidnapping, perhaps sequel to family tiff or lovers’ dispute – up to 18}

months’ imprisonment.

Local Cases

⁷⁷ (1983) 5 Cr. App. R. (S.) 413 @ 416

194. In Sean Smart v The State⁷⁸ the appellant, a former soldier, acting in concert with others, took the victim to the Lady Young Road where he was beaten, a gun placed in his mouth and he was thrown off the edge of a precipice. Upon his conviction for kidnapping, false imprisonment, assault occasioning actual bodily harm and common assault, he was sentenced to 18 years’ imprisonment with hard labour for kidnapping, 18 years imprisonment for false imprisonment, 3 years’ imprisonment assault occasioning actual bodily harm and 18 months’ imprisonment for common assault. Among the aggravating factors were the fact that the appellant was a former soldier, the degree of violence used, the fact that a firearm was involved which was placed in the victim’s mouth and clicked a couple times while the victim closed his eyes, the seriousness of the offence and the that kidnapping had become an extremely prevalent offence. The mitigating factors were that the accused had no previous convictions, no ransom was demanded and the period of detention was not lengthy.

195. Although the victim was beaten as in the instant case, this case involved the use of a fire arm. The level of brutality that was meted out to the victim in Sean Smart certainly surpassed what was meted out to the virtual complainant in the instant case.

196. Another local case involving the offence of kidnapping is the case of Francis Young v The State⁷⁹. In this case family members and friends who were vacationing in Tobago were approached by 3 masked men, one of whom was the accused Francis Young. The men were armed with a gun, a machete and a crowbar. They demanded money and received $2,000. They also stole a store card and a credit card belonging to one of the victims and instructed that they accompany them to the bank to withdraw the cash, which the victims did. Young was convicted on two counts of kidnapping and two counts of robbery with aggravation. He was sentenced to 10 years’ imprisonment on the two counts of kidnapping.

197. This case also, unlike the case of the three accused men, involved a weapon.

⁷⁸ Cr. App. No. 4 of 2008 B7 – 1 Sentencing Handbook

⁷⁹ Cr. App. No. 2 of 2001 – B7-6 Sentencing Handbook

198. The Sate v Rajkumar and Lezama⁸⁰ is a decision of Moosai, which was delivered on 23^rd November, 2010. In this case both prisoners were jointly charged with five offences including kidnapping. Rajkumar, who was a police officer, Lezama and another person (one officer Ali) went to the home of a ‘weed man’ where they took approximately ½ pound of marijuana, placed handcuffs on him while telling him that ‘he lock up’. They robbed him of

$300 and kidnapped and falsely imprisoned him by taking him in the car driven by Lezama. In the vehicle he was slapped in his face twice by Ali and Lezama also did the same. They told him that if he gave them $2,000 he would get back his weed and he would not be brought before magistrate the following day. The man then took the accused men back to the area where he lived and his nephew gave them $2,000. The man was eventually released. Upon their conviction for kidnapping they were sentenced to 5 years’ imprisonment with hard labour.

Robbery with Aggravation

199. The prescribed maximum penalty for the offence of robbery with aggravation is 15 years imprisonment: S. 24(1) Larceny Act, Chap 11:12. In R v Gould and Others⁸¹ Lord Lane CJ noted

that:

“There are so many possible combinations of circumstance that it is difficult to give any precise indication of the so called normal sentence for any particular type of robbery. Some of the features likely to mitigate an offence area, a plea of guilty, the youth of the offender, a previously clean record, the fact that the defendant had no companion when committing the offence and the fact that no one was injured. On the other hand the fact that a real rather than imitation weapon was used, that it was discharged, that violence was used upon the victim, that a number of men took part on the attack, that careful reconnaissance and planning were involved, that there was more than one offence committed by the offender, are all matters which the Court must put into the balance on the other side of the scale when determining the correct sentence for any particular offender. These

considerations are of course not exhaustive and are not intended to be so.”

⁸⁰ Cr. App. No. 19 of 2008

⁸¹ (1983) 5 Cr. App. R. (S.) 72 @ 75

Local Cases

200. A review of the local cases involving the offence of robbery with aggravation indicates a range of sentence of between 7 – 15 years’ imprisonment.

201. In Hugh Briggs v The State⁸² the appellant and two others boarded the victim’s taxi. The appellant was armed with a gun while another was armed with a knife. They severely beat and robbed him of his car. The victim was brutally stabbed in his chest and then dumped in a nearby van field. The appellant was convicted on charges of robbery with aggravation and wounding with intent. In respect of the robbery with aggravation charges he was sentenced to 15 years’ imprisonment with hard labour. Briggs was an offender who had five previous convictions.

202. The injury caused to the virtual complainant in the case at bar was not as serious as in Briggs.

The appellant was also armed with a gun.

203. The State v Rajkumar and Lezama⁸³, a case that I have already reviewed in paragraph 14 in relation to the offence of kidnapping, is another case, like Briggs that is at the higher end of the scale of sentencing. Here the prisoners, one of whom was a former police officer, along with another person went to the home of a ‘weed man’ and took about ½ lb marijuana. They robbed him of $300 and kidnapped and falsely imprisoned him by taking him in a car driven by Lezama. While in the car he was slapped in the face twice by another party who was part of the criminal enterprise and Lezama also did the same. They told the victim that they wanted $2,000 and he would get is weed back. The victim’s relative handed them $2,000 and the victim was eventually released. They were charged with five offences: robbery with aggravation, kidnapping, false imprisonment, corruptly soliciting monies and corruptly receiving money. Rajkumar pleaded guilty to all 5 offences. In respect of the offence of robbery with aggravation he was sentenced to 11 years’ imprisonment. Justice Moosai, considered the following factors as operating in Rajkumar’s favour: namely, (i) his confession

at the commencement of the trial; (ii) his distancing himself from the rest of the gang; (iii)

⁸² Cr. App. No. 117 of 1990 B5-11 Sentencing Handbook

⁸³ Supra

his offer to testify against Lezama at trial; (iv) that he has a 14 year old daughter with a hole in her heart for whom he was financially responsible. With respect to Lezama, who was found guilty by a jury of all charges, the Court found it difficult to find any mitigating factors and he was sentenced to the maximum term of imprisonment of 15 years.

204. In Francis Young v The State⁸⁴ (see Para. 13), the appellants who were convicted of two counts of kidnapping and two counts of robbery with aggravation were sentenced to 15 years hard labour and 15 strokes with the birch for the counts of robbery with aggravation. Here, one of the appellants was armed with a gun, the other a machete and the third a crow bar. They approached the victims who were holidaying in Tobago, robbed one of them of $2,000 cash that he had in his possession and stole bank cards from another one of the victims. The appellants also instructed the victims to accompany them to the ABM where they were forced to withdraw cash.

205. In Samuel Hutchins v The State⁸⁵ the appellant along with 2 others broke and entered the victim’s home armed with an ice pick, gun and cutlass. They demanded money and threatened to kill her sons. It was later discovered that the telephone wire was cut, one of the dogs was dead and items valued at $10,000 were missing from the home. The appellant was convicted of burglary and robbery with aggravation and sentenced to 12 years’ imprisonment on both counts. The aggravating factors in this case were that the family was terrorized for

½ hour; the mother was sexually assaulted; the prevalence and seriousness of the offence;

and the need to protect society.

206. In the case of Renrick Gaskin v The State⁸⁶ the appellant was convicted on charges of robbery with violence and robbery with aggravation and sentenced to 8 years’ imprisonment for each count. The facts are that the appellant, while at a bar, took $1,700 from one patron’s pocket and then shot him in his leg. Another patron’s car valued at $110,000 was stolen. The Court considered as aggravating factors the fact that the appellant had four previous convictions; the seriousness of the charges; that after shooting one of the victims the appellant cursed

him by saying “take that” followed by obscenities; and the pain and trauma suffered by the victims.

207. The appellant in Steve Gonzales v The State⁸⁷ was convicted of three counts of robbery with aggravation. The facts are that he and another person being armed with a gun and a knife robbed MM of $500, RB of $23 RS of $5. The trial court sentenced the appellant to 10 years’ imprisonment and ten strokes with the whip on count one and seven years’ imprisonment on counts one and two. On appeal the sentence was varied to the extent that the order for the ten strokes with the whip was quashed.

False Imprisonment

208. The maximum penalty for the offence of false imprisonment is not prescribed by statute.

False imprisonment is a common-law offence; therefore, the Court looked to other cases in involving this offence for guidance as to an appropriate range of sentence.

Local Cases

209. In The State v Rajkumar and Lezama⁸⁸ (a review of the facts may be found in paragraphs 14 and 18) the appellants were convicted and sentenced to 5 years’ imprisonment for the offence of false imprisonment.

210. In Darryl Samnarinesingh v The State⁸⁹ the appellant, who was a serving police officer, along with four accused were convicted of kidnapping and false imprisonment. The brief facts are that the victim was held for two days in a forested area and released after her mother refused to pay a ransom. The appellant was sentenced to 17 years’ imprisonment on each of the counts.
211. The appellant in Sean Smart v The State⁹⁰ was sentenced to 18 years’ imprisonment upon his conviction for false imprisonment. In this case Smart (a former soldier) and other persons kidnapped the victim and took him to Lady Young Road where he was beaten, a gun placed in his mouth and he was thrown over the edge of a precipice. He was also convicted of kidnapping (18 years); assault occasioning actual bodily harm (3 years); and common assault (18 months). The period of detention was not lengthy.

GENERAL CONSIDERATIONS:

212. In determining appropriate sentences in the instant case the Court is guided by the well established principles of sentencing set out in Benjamin v R⁹¹ namely, retribution, deterrence, prevention and rehabilitation.

213. The three accused have no doubt committed very serious crimes. They posed as passengers in the virtual complainant’ taxi, kidnapped, falsely imprisoned and robbed him – and this is within a matter of days after carrying out crimes of a similar nature against yet another taxi driver. These are offences for which the accused men should be properly punished and from which members of the society ought to be protected. The Court should also send a strong message to potential offenders as well as to these three accused that would deter them from carrying out like offences.

214. Although the accused men were not armed with any weapon, the level of violence meted out to the virtual complainant places this case, in my view at the upper end of the scale of sentencing in Spence and Thomas. They not only robbed the virtual complainant but they beat him, covered his face with his jersey and tied his feet, placed him in the trunk of the car and drove around with him, in the trunk, from Malabar Stadium to Central, where they withdrew money using the virtual complainant’s bank card. They beat him again after they stopped the car and threw him in a patch of grass. Although Accused No. 1 said that it was Accused

Nos. 2 and 3 who beat the virtual complainant, I do not believe than he is any less culpable

⁹⁰ Supra

⁹¹ (1961) 7 WIR 459

because there is no evidence that he made any genuine attempt, at any point in time, to distance himself from what was going on. He was the driver, and played a very important role in what took place.

215. These men are not strangers to crime. Accused No. 1 has four (4) previous convictions arising out of on one incident for malicious damage, assaulting a police officer and assault with intent to prevent lawful apprehension. These convictions were in 2004. Accused No. 2 has two previous convictions, 1996 and 1998 respectively, for housebreaking and larceny. Accused No. 3 has three (3) previous convictions arising out of the same incident for which Accused No. 1 was convicted for malicious damage, assaulting a police officer and assault with intent to prevent lawful detention.

216. The court has also taken into the account, as discounting factors, the fact that the three accused pleaded guilty to the offences and have spent a total of 287 days in remand awaiting trial in respect of this indictment.

AGGRAVATING & MITIGATING FACTORS

Aggravating Factors

217. I have determined that the following are aggravating factors in this case: (i) the prevalence of offences of this nature in our society;

(ii) the use of violence against the Virtual Complainant;

(iii) the fact that the virtual complainant was a vulnerable taxi driver.

Mitigating Factors

218. On the other hand, I have also taken into account the following mitigating factors:

(i) the fact that the Accused pleaded guilty, which justifies them each receiving a 1/3 discount on sentence;

(ii) the time already spent in custody, for which full discount will be applied; (iii) the comments of the probation officer in the probation report.

SENTENCE

219. In relation to the offence of robbery with aggravation, I consider that ordinarily in circumstances such as these a sentence of fifteen (15) years imprisonment with hard labour would have been appropriate.

220. In relation to the offence of kidnapping, I consider that ordinarily in circumstances such as these a sentence of twelve (12) years’ imprisonment with hard labour would have been appropriate.

221. In relation to the offence of false imprisonment, I consider that ordinarily in circumstances such as these a sentence of twelve (12) years’ imprisonment with hard labour would have been appropriate.

Actual Sentences

222. However, after considering all of the relevant mitigating and aggravating factor in this case and applying a discount of 1/3 to each Accused for his early guilty plea, as well as giving each Accused full credit by way of discount for the entire period that he has spent in custody on remand awaiting trial, the sentences of this Court are as follows:

(1) Accused No. 1- in relation to the offence of robbery with aggravation, you are hereby sentenced to a term of 8 years imprisonment with hard labour. In respect of the offence of kidnapping you are hereby sentenced to a term of 6 years imprisonment with hard labour. In respect of the offence of false imprisonment, you are hereby sentenced to a term of 6 years imprisonment at hard labour. These sentences are to run concurrently with each other and concurrently with the term imposed on Indictment No. S-26 of 2006.

(2) Accused No. 2- in relation to the offence of robbery with aggravation, you are hereby sentenced to a term of 8 years imprisonment with hard labour. In respect of the offence of kidnapping you are hereby sentenced to a term of 6 years imprisonment with hard labour. In respect of the offence of false imprisonment, you are hereby sentenced to a term of 6 years imprisonment at hard labour. These sentences are to

run concurrently with each other and concurrently with the term imposed on

Indictment No. S-26 of 2006.

(3) Accused No. 3- in relation to the offence of robbery with aggravation, you are hereby sentenced to a term of 8 years imprisonment with hard labour. In respect of the offence of kidnapping you are hereby sentenced to a term of 6 years imprisonment with hard labour. In respect of the offence of false imprisonment, you are hereby sentenced to a term of 6 years imprisonment at hard labour. These sentences are to run concurrently with each other and concurrently with the term imposed on Indictment No. S-26 of 2006.

André A. Mon Désir

Judge

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