Director of Public Prosecutions v Ernesta Butler

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett,Madam Justice Crane-Scott, JA,Mr. Justice Jones, JA
• Judgment Date: 13 July 2020
• Neutral Citation: BS 2020 CA 74
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 97 of 2019
• Date: 13 July 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrApp. No. 97 of 2019

Between

Director of Public Prosecutions

Appellant

and

Ernesta Butler

Respondent

APPEARANCES:

Mrs. Olivia Nixon, Counsel for the Appellant

Mr. Raymond Rolle, Counsel for the Respondent

Criminal appeal — Appeal against sentence — Attempted murder — Whether the sentence imposed by the trial judge was based on a wrong principle of law — Whether the sentence imposed by the trial judge was unduly lenient — Section 291 of the Penal Code

The respondent was convicted of the attempted murder of her ex-boyfriend and father of her children. The circumstances which gave rise to the offence were that on 23 October 2016 the respondent visited the home of the complainant who was stabbed to the neck following a domestic dispute. The evidence revealed that without medical intervention the complainant would have suffocated and died. The respondent admitted to stabbing the complainant but said it was done in self-defence. Following her trial, the respondent was sentenced to a term of imprisonment for seven years. The Crown now appeals that sentence as being wrong in principle and unduly lenient.

Held (Jones, JA dissenting): Appeal dismissed. Sentence affirmed.

per Barnett, P: The submission that as a principle of law the sentence on a charge of attempted murder must be within the range of 30 to 60 years, unless there can be demonstrated exceptional circumstances to depart from that range, is rejected. That range of 30 – 60 years as laid down by Larry Raymond Jones is applicable to the offence of murder in place of the fixed sentence of death. There have been many instances where this Court has, since the case of Larry Raymond Jones, imposed sentences for the offence of attempted murder and they have not done so on the basis of any exceptional circumstances.

While the seven-year sentence on a charge of attempted murder may appear lenient it is not without precedent in this jurisdiction or elsewhere in the common law world. Having regard to the authorities, it cannot be said that the seven-year sentence was so lenient that it ought to be set aside by an appellate court on the basis that no reasonable judge could have imposed it. The sentence is not inconsistent with sentences imposed by this Court and courts in other common law jurisdictions in cases of domestic disputes, sparked by emotions and where there is no real risk of the person being a further threat to his or her victim or to the society at large.

Attorney General v Desir and Taylor SCCrApp. No. 45 of 2015 distinguished

Attorney General v Kevin Smith SCCrApp. No. 261 of 2012 considered

Caryn Moss v DPP; DPP v Caryn Moss SCCrApp. Nos. 230 & 238 of 2018 considered

Ebenezer Sherman v R SCCrApp. No. 177 of 2010 considered

Edney Burrows v R SCCrApp. No. 167 of 2011 considered

Henry v R; The Attorney General v Henry [2018] 1 BHS J. No. 137 considered

Higgs v R [2012] 3 BHS J 72 considered

Johnson (Peter Lloyd) (1993) 14 Cr. App. R. (S) 661 considered

Meisha Clement v R [2016] JMCA Crim 26 considered

Mejias v R [2014] 2 BHS J No. 87 considered

Miller v R [2013] 1 BHS J 16 considered

R v Clarke [2004] BHS J No 366 considered

R v Ferguson [1983] BHS J No 81 considered

R v Pyke [2013] NSCA 61 considered

R v Shannon [1991] 4 BCAC 99 considered

Seetal Bharat and Pooran v R [1960] 2 WIR 515 considered

Sherene Crowe v The Queen Criminal Appeal No. 13 of 2004 considered

Taylor v R [2010] 1 BHS J No 45 considered

The Attorney General v Larry Raymond Jones et al SCCrApp. Nos. 12, 18 and 19 of 2007 considered

The Queen v Wilbert Cuellar Criminal Application for Leave to Appeal No. No. 13 of 2014 considered

The State v Eon Archibald (unreported) 11 October 2018 considered

The State v Trevor Creft H.C.S. 54/2015 considered

Wint v R [2019] JMCA Crim 11 considered

per Crane-Scott, JA: There are no sentencing guidelines, judicial or statutory, applicable to the offence of attempted murder in this jurisdiction. Therefore, there was no error in principle made by the learned judge. Having regard to the sentences imposed in this jurisdiction and other common law jurisdictions for the offence of attempted murder the seven-year sentence falls within the range of sentences passed on other occasions, in similar circumstances, and therefore cannot be said to be unduly lenient.

Attorney General v Desir and Taylor SCCrApp. No. 45 of 2015 distinguished

Caryn Moss v DPP; DPP v Caryn Moss SCCrApp. Nos. 230 & 238 of 2018 distinguished

The Attorney General v Larry Raymond Jones et al SCCrApp. Nos. 12, 18 and 19 of 2007 considered

per Jones, JA: Judicial discretion is accepted in the sentencing process; however, it must be exercised in a manner based on recognized principles to ensure consistency in decisions. It is a principle of law that a trial judge is not left at large to ponder sentencing afresh whilst disregarding guideline judgments from this Court. In arriving at an appropriate sentence, the sentencing judge must, among other factors, identify a starting point from the guideline decisions of the appellate courts. In this case the sentencing judge gave no exceptional or extenuating circumstances justifying such a huge reduction from the range of sentences approved by this Court for attempted murder. As a result, the manner in which the judge arrived at the sentence of seven years for attempted murder, in my view, is an error in principle.

Relative to whether the sentence was unduly lenient, there are no reasoned guideline cases from this Court for which a seven-year sentence has ever been approved or considered appropriate for attempted murder. Further, the sentence was not within the range of sentences which could be considered appropriate for the seriousness of the offence charged and the culpability of the respondent.

Attempted murder requires an intent to kill and is considered a very serious offence. The penalty should be reflective of the seriousness; the seven-year sentence does not do so. I would quash the sentence of seven years and substitute a sentence of 15 years imprisonment from the date of conviction.

Attorney General v Kevin Smith SCCrApp. No. 261 of 2012 applied

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

Attorney General v Vilner Desir & Delano Taylor SCCrApp. No. 45 of 2015 considered

Attorney General's Reference No. 4 of 1989 (1989) 11 Cr. App. R. (S.) 517 considered

Caryn Moss v DPP; DPP v Caryn Moss SCCrApp. Nos. 230 & 238 of 2018 applied

Hoare v Queen [1989] 167 CLR 348 considered

Michael Scott v R SCCrApp. No. 163 of 2012 applied

R v Robert Patterson Mill [2012] EWCA Crim 2426 considered

Rauel Pierre v R SCCrApp. No. 48 of 2017 applied

Judgment delivered by the Honourable Sir Michael Barnett, P:

1 . This is an appeal by the Crown against a sentence of seven years imposed by the trial judge after the respondent was convicted of the attempted murder of her ex-boyfriend. The Crown alleges that the sentence is wrong in principle and unduly lenient.

2 . Due to its central importance I set out in full the sentencing ruling of the trial judge beginning at page 313:12:

“The convict, Ernesta Butler, was charged in indictment 288/12/2016 of one count of Attempted Murder, contrary to Section 292 of the Penal Code, chapter 84.

On the 1st of April, 2019, notwithstanding that a lesser charge of Causing Grievous Harm was also left with the jury, they nevertheless found her guilty of the offence of Attempted Murder for which she was convicted.

Section 292 of the Penal Code provides:

“Whoever attempts to commit murder shall be liable to imprisonment for life”.

The gist of the evidence — one moment unfetter her. I did not realize she was still fettered.

The gist of the evidence taken during the course of this trial was to the extent that on Sunday, the 23rd of October, 2016, the virtual complainant, Trevor Taylor, was at his home located Strachan's Alley, off Kemp Road, when his ex-girlfriend and mother of his two children, Ernesta Butler, came to his resident (sic) and asked to speak with him. A friend was said to have been at the resident (sic) at the time and was asked to leave by Ernesta Butler. The friend left.

And according to Mr. Taylor, he too was attempting to leave but Ernesta Butler said that she wanted to speak to him and prevented him from leaving. She then inquired of him who the friend was that he was out with earlier in the day. He then told her that it was none of her business. And if it had nothing to do with the children it was none of her business. He again attempted to leave but Ernesta Butler prevented him again from doing so.

It was at this time he said he saw she had a knife in her hand, and he once again attempted to leave. It was then that Ms. Butler pushed him, he pushed her back and that is when she stabbed him to the neck. He said he tried to get the knife from her, they were hassling, during which he received one or two other injuries.

Eventually, he was taken to the Princess Margaret Hospital where he would have received medical attention and was rushed into surgery. The medical evidence reflected that Trevor Taylor had received a penetrated wound to the neck which endangered his life requiring immediate medical intervention in order to save his life. But for that medical intervention Trevor Taylor would have suffocated and die.

The Defendant acknowledged and admitted that she stabbed the virtual complainant but did so either by way of accident, but more so in self-defence, as she had been verbally and physically abused during her relationship with Trevor Taylor in the last two years. On the date of the incident she recounted that they had gotten into an argument which escalated into a fight and she stabbed him in self-defence, after he had...