Christopher Joseph McQueen v Directorof Public Prosecutions

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jon Isaacs, JA
• Judgment Date: 16 February 2022
• Neutral Citation: BS 2022 CA 28
• Docket Number: SCCrApp. & CAIS No. 18 of 2021
• Court: Court of Appeal (Bahamas)

Between

Christopher Joseph McQueen

Intended Appellant

and

Directorof Public Prosecutions

Intended Respondent

Before:

The Honourable Sir Michael Barnett, P, Kt

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

SCCrApp. & CAIS No. 18 of 2021

IN THE COURT OF APPEAL

Criminal Appeal — Application for Extension of Time-Manslaughter by Reason of Provocation-Guilty Plea — Prospects of Success — Sentencing — Whether sentence was unduly harsh and severe

The intended appellant was charged with the 23 ^rd August, 2016 murder of Martin Nixon. He later pled guilty instead to the charge of Manslaughter by Reason of Provocation. On the 6 ^th May, 2019 he was convicted of Manslaughter by Reason of Provocation. On the 26 ^th February, 2020 the intended appellant was sentenced to 30 years imprisonment with a reduction of 10 years to 20 years for a plea of guilty and a further reduction of 38 months for time already spent on remand with a total time of 17 years imprisonment with time commencing from the date of conviction. On 22 ^nd January, 2021 the intended appellant filed an application to the Court of Appeal for an extension of time within which to appeal his sentence of 17 years. His ground of appeal is that the sentence was unduly harsh and severe.

Held: The application for extension of time is refused. The conviction and sentence is affirmed.

Pleas of guilty should be encouraged, and that one avenue of achieving that goal is by the partial reduction of a sentence that would be normally imposed for the offence had the matter gone to trial. However, there are occasions where the circumstances of either the offence or the circumstances of the offender or both matters, warrant a condign punishment.

Is not legitimate to criticise a sentence as unduly harsh merely because a court, that has imposed a sentence on the upper end of the sentencing scale, has done so after duly considering the circumstances of the offence and of the offender.

The sentence imposed by the trial judge is not so disproportionate to those sentences meted out for the offence of manslaughter as to warrant this Court's interference with the judge's sentencing discretion. There is nothing disclosed in the judge's sentencing remarks that would cause any disquiet sufficient to impel interference with the sentence she has imposed. The appeal has no prospect of success.

Ashley Hield v Regina SCCrApp. No. 172 of 2019 considered

Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 mentioned

Attorney General v Todd [2011] 3 BHS J. No. 32 mentioned

Dustin Taylor v The Commissioner of Police MCCrApp & CAIS No. 63 of 2014(S) 49 applied

Emmanuel Rolle v Director of Public Prosecutions SCCrApp. No. 195 of 2018 considered

Gary Thurston v Regina SCCrApp. No. 11 of 2 mentioned

Hilfrant Francois Joseph v The Attorney General SCCrApp. No. 88 of 2013 mentioned

Larry Raymond Jones v R SCCrApp Nos. 12, 18 & 19 of 2007 considered

Lorenzo Pritchard v Regina BS 2021 CA 144 considered

Mikiko Black v R SCCrApp No. 40 of 2014 mentioned

Prince Hepburn v. Regina SCCrApp No. 79 of 2013 considered

Raphael Neymour v The Attorney General SCCrApp No. 172 of 2010 considered

Regina v Darren Anthony Suratan AG Ref 74/2002 Leslie Humes AG Ref 95/2002 & Mark Paul

Wilkinson AG Ref 118/2002 v R [2002] E.W.C.A. Crim. 2982 considered

Rodriguez Jean Pierre v Regina SCCrApp. No. 110 of 2019 mentioned

R v Ball 35 Cr. App. Rep. 154 mentioned

R v Gilbey, (1990) 12 Cr App Rep considered

R v Gumbs (1927) 19 Cr. App. R 74 applied

The Attorney General v Claude Lawson Gray SCCrApp. No. 115 of 2018 considered

The Commissioner of Police v Brian Botham MCCrApp & CAIS No. 134 of 2015 considered

APPEARANCES:

Ms. Brendalee Rae, Counsel for the Intended Appellant

Ms. Darnell Dorsette, Counsel for the Intended Respondent

Judgment delivered by The Hon . Mr. Justice Jon Isaacs, JA

On 7 December 2021, we heard the submissions of Counsel on an application to extend the time within which to appeal against the sentence imposed by Madam Justice Cheryl Grant-Thompson (“the Judge”); and reserved our decision. We render it now.

Background

1 The intended appellant was convicted of Manslaughter by Reason of Provocation on his plea of guilty to that charge, made when he appeared before Madam Justice Cheryl Grant-Thompson (“the Judge”) on 6 May 2019. He had been charged with Murder along with one Kyle Newbold because the Crown alleged that on 23 August 2016, at New Providence, they were responsible for the death of twenty-seven year old father of twin boys, Martin Nixon. However, after the jury had been empanelled in his trial, the intended appellant was re-pleaded and thereupon maintained his not guilty plea to Murder but entered a guilty plea to the charge of Manslaughter by Reason of Provocation. It is of note that the intended appellant's guilty plea was not made pursuant to a formal plea agreement between himself and the Crown; nor was it made at the earliest opportunity. In fact, it came after it was evident that his erstwhile co-accused, against whom the Crown had withdrawn the charge, would be a witness for the Crown.

2 The Judge directed the jury to find the intended appellant not guilty of Murder and to find him guilty of Manslaughter by Provocation. The jury duly followed the directions of the Judge. Thereafter, the Judge asked the intended appellant if he had anything to say before sentence was passed upon him. Mr. Bjorn Ferguson, the intended appellant's Counsel in the court below, requested that the Judge direct that a probation report be prepared in respect of the intended appellant, no doubt to assist her in arriving at an appropriate sentence. The Judge acceded to the request and adjourned the matter to 18 June 2019. It is not clear what happened on the adjourned date but on 2 October 2019, mention is made by the Judge of an addendum to the probation report which would suggest that one had been prepared but additional information was requested of the Probation Department. Mrs. Kalesa Simmons, Senior Probation Officer may have prepared the probation report.

3 On 2 October 2019, Mr. Roger Thompson, Counsel for the Crown, asked the Judge to hear from the sister of Martin Nixon as to the impact his death had on members of his family. His request was made pursuant to section 185 of the Criminal Procedure Code ( Amendment) Act, 2011. The Judge allowed the sister, Ms. Shaniqua Moxey to testify; and she did. Mr. Ferguson lodged an objection to Ms. Moxey's evidence because he had not received any advance warning as to what she was going to say. Further, he wished to hear from the maker of the addendum to probation report. The Judge adjourned the case to 16 October 2019.

4 The record is taken up on 26 February 2020 when the Judge made her sentencing remarks, rehearsing the evidence of witnesses in the case, for example, Ms. Moxey and the Senior Probation Officer, and says, inter alia, at pages 27 to 28 of the transcript dated 26 February 2020:

“Before me the Convict was quiet and contrite, his remorse was evident and when the family members of the deceased family gave evidence in the sentencing hearing he appeared pained at the evident distress that he had caused them. He did not plead guilty at the first opportunity indeed he did not plead guilty until we had empanelled a jury and his previous co-defendant was coming to give evidence against him (slated as an early witness for the Crown.)

However I am of the view that is never too late to do well and he did plead guilty thereby saving us a trial. Also he expressed remorse to the probation officer (a rare fact). He has no antecedents and previously was a hard working driver, young father of two young children. He assisted the police with their investigation.

The crime was brazen, committed in broad daylight, and a calmer head should have prevailed with the Convict not reengaging the deceased. But all of those factors call for a perfect world. He discharged a firearm fatally and this is not the sort of conduct we wish the young men of our community to emulate or to think is acceptable. The sentence therefore is meant to be deterrence to other young men.

However, I am of the view that our Convict can be rehabilitated, that power should be tempered with mercy. I am recommending that he receive anger management counseling and that he be permitted to attend Classes in his chosen field to improve his skills upon his return to our society.

I took a third off of his sentence for his guilty plea (30 years became 20 years) and based on my view that this Convict can be rehabilitated and will continue making meaningful contributions to society. Accordingly, I sentence him to Twenty Years and two months imprisonment-I hereby deduct the time he has already spent in custody awaiting trial which I am advised is 38 months. This leaves a sentence of which will commence from the 6th May, 2019 when he was convicted for Manslaughter by Provocation.

Mr. Christopher McQueen you are hereby sentenced to serve a term of 17 years imprisonment by this Honourable Court.”

5 The Judge had promised to put her reasons in writing, and in a fulsome sentencing judgment dated 3 April 2020, she did. Despite my resolve to avoid making copious references to her judgment, in light of the intended appellant's complaint that the Judge appears to have sentenced the intended appellant on the basis of a murder conviction, I must refer to portions of her judgment.

6 At paragraph 2 she sets out a part of the probation report pertaining to the circumstances of the offence. The intended appellant accepted the facts disclosed therein which were as follows:

“The Concerned pleaded guilty to the offence. He expressed remorse for his actions and stated that he wished he could apologize to the victim's family because he did not intend to kill Mr. Martin Nixon. In relating the...