Director of Public Prosecutions v Andre Pedro Valdes
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA |
| Judgment Date | 18 March 2021 |
| Neutral Citation | BS 2021 CA 44 |
| Date | 18 March 2021 |
| Docket Number | SCCrApp. No. 183 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCrApp. No. 183 of 2019
Ms. Janessa Murray with Ms. Cordell Frazier, Counsel for the Appellant
Mr. Lennox Coleby, Counsel for the Respondent
Attorney General v Larry Raymond Jones, Patrick Alexis Jervis & Chad Goodman SCCrApp. Nos. 12, 18 & 19 of 2007 considered
Attorney General's Reference No. 4 of 1989 [1990] 1 WLR 41 applied
Caryn Moss v. The Director of Public Prosecutions SCCrApp. & CAIS No. 230 of 2018 considered
R v Brown [2001] BHS J. No. 43 considered
R v Dominic Moss (2008) (unreported) mentioned
R v Elena Sparta 2013 (unreported) distinguished
R v Gumbs (1927) 19 Cr. App. R. 74 applied
R v Miller [1984] BHS J. No. 83 considered
Raphael Neymour v The Attorney General SCCrApp. No. 172 of 2010 applied
Regina v Adomako [1994] WLR 288 considered
The Commissioner of Police v Brian Botham MCCrApp. & CAIS No. 134 of 2015 considered
Criminal appeal — Manslaughter by negligence — Leave to appeal sentence — Principles of sentencing — Killing in the course of dangerous driving — Proportionality of sentence — Whether sentence based on a wrong principle of law — Whether sentence unduly lenient — Sections 13, 17 & 23(3) of the Court of Appeal Act — Sections 11, 36 & 48 of the Court of Appeal Rules — Sections 13, 119, 123 & 293 of the Penal Code — Section 44 of the Road Traffic Act
On 9 March 2017, while the respondent was a Physical Education teacher at the North Long Island High School, he gave a ride to 16-year-old Destyne James Smith, a student of the school, and Ms. Deloris Miller. Miller sat in the cab of the respondent's truck while Smith sat on the back of the truck. The evidence revealed that many items were on the back of the respondent's truck and he was driving at a high rate of speed. Along the drive Smith was thrown from the truck and died as a result. Smith suffered from a fractured skull with intracranial hemorrhage.
The respondent was charged with manslaughter by negligence. He pleaded guilty and was fined $2,500.00 or one year imprisonment. He was also placed on probation for five years during which time he was to drive carefully, obey the rules of the road and not drive anyone under the age of eighteen, failing which he would be imprisoned for two years. The respondent was also ordered to pay $10,000.00 as compensation to the mother of the deceased.
The appellant appeals the sentence imposed by the learned judge as being based on a wrong principle of law and unduly lenient. They submit that a period of incarceration would be the proper sentence.
Following the Court reserving its decision in this appeal, the respondent was found shot to death.
Held: Leave to appeal against sentence granted. Sentence would have been quashed and a sentence of twelve months imprisonment would have been substituted. The $2,500.00 fine is to be returned to the respondent's estate; the compensation order is appropriate in the circumstances.
The appellant is of the view that the sentence for the offence was not proportionate to the offence of manslaughter by negligence but rather to the offence of killing in the course of dangerous driving. Further, that the judge took into account matters she ought not to have taken into account in sentencing the respondent. The respondent's position is that the fine and compensation were paid following the expiration of the statutory time period imposed for appealing. His sentence is, therefore, spent and the Court is not competent to set aside a spent sentence. In any event, the respondent submits that the sentence imposed by the judge was appropriate.
The respondent was sentenced as if he had been convicted for the offence of killing in the course of dangerous driving instead of in accordance with the offence of manslaughter by negligence. The sentence, therefore, was based on a wrong principle of law. Regarding the leniency of the sentence, leniency is not an unwelcome guest, but it must be balanced. In this regard, the court must always weigh the circumstances of the offence and that of the offender. Further, a sentencing judge is required to always bear in mind the principles of sentencing: retribution, prevention, deterrence and rehabilitation. In the present case, while the judge was clearly aware of the principles of sentencing she failed to apply them to the circumstances of the offence. The sentence imposed was, therefore, unduly lenient. A period of incarceration ought to have been imposed to reflect the seriousness of the offence and the need to act as a general deterrent to others.
Judgment delivered by the Honourable
. On 10 November 2020, we heard the submissions of Counsel; and reserved our decision for delivery at a later date. We do so now. However, before proceeding further, we must acknowledge that the respondent has died. It was reported that he was found on New Year's Day, shot to death on the grounds of Stapledon School, New Providence, where he had been transferred following the incident giving rise to this appeal. Thus, our decision is of no consequence to him; but it ought to provide guidance to courts on the approach to be taken when sentencing a defendant.
. The respondent was charged with manslaughter by negligence contrary to section 293 of the Penal Code and appeared before Madam Justice Carolita Bethell (“the Judge”) (as she then was) on 6 November 2019. The particulars of the charge were that on 9 March 2017, the respondent negligently caused the death of Destyne James Smith (“Smith”). The respondent pleaded, “Guilty”, to the charge and the Judge sentenced him to a fine of $2,500.00 (two thousand five hundred dollars) or one year's imprisonment. The Judge placed the respondent on probation for a period of five years during which time he was to drive carefully, obey the rules of the road and not to drive anyone under the age of eighteen years, failing which he is to be imprisoned for two years. The Judge also ordered the respondent to pay compensation to the mother of the deceased in the sum of $10,000.00 (ten thousand dollars). The appellant regards the sentence as being based on a wrong principle of law and that it was unduly lenient; and has sought leave to appeal the sentence arguing that the proper sentence in the circumstances of this case is one that involves a period of incarceration.
. The facts surrounding the incident that resulted in the death of Smith are extracted from the facts read to and accepted by the respondent in the hearing before the Judge.
. On 9 March 2017, in Millar's Settlement, Long Island, the respondent, a Physical Education teacher at North Long Island High School (“NLI”), gave a ride in his truck to Ms. Deloris Miller and 16-year-old, Smith, who was a student at NLI. Ms. Miller sat in the passenger seat in the cab and Smith sat on the back of the truck. The respondent pulled off even before Smith was properly seated and Ms. Miller shouted to the respondent to allow Smith to seat himself properly. The respondent stopped and allowed Smith to seat himself in the bed of the truck.
. The respondent drove to NGM Major School where he collected two mattresses and placed them on the back of the truck. He had tried to put three mattresses on the truck but was dissuaded from doing so by Ms. Miller. Ms. Miller told Smith to sit on a tire that was on the bed of the truck, between the rear glass of the truck's cab and the mattress. However, the respondent moved Smith and placed him on top of the mattress by the tailgate. Smith's feet hung facing opposite the front of the truck.
. During their journey, one of the mattresses blew off the truck over Smith's head. They tried to place the mattress back on the truck but failed; and the mattress was left on the side of the road. The respondent's next stop was at the Greek's Fish House where he picked up four large bags of ice. Ms. Miller, again, warned the respondent that there was no space for the ice in the bed of the truck. The respondent moved Smith and put the ice in the spot where Smith had been sitting; and moved Smith to sit on the top of the mattress by the tailgate. Again, Ms. Miller told the respondent that that would not work; but the respondent said, “The boy would be okay”.
. As they drove, Ms. Miller glanced at the speedometer and noticed that the vehicle was travelling at 50 m.p.h. Smith tapped his foot and used hand gestures — that Ms. Miller took to mean — for the respondent to stop. Minutes later, the mattress and Smith were thrown off the truck, but it was not until Ms. Miller insisted repeatedly that the respondent stop the truck, that he brought it to a standstill. They exited the vehicle and went to where Smith lay dying. It was later revealed that Smith had died from a fractured skull with intracranial hemorrhage.
. The respondent told officers who responded to the scene of the accident that he had been traveling about 35 m.p.h. The speed limit for that stretch of road was 20 m.p.h. During his interview with the police the respondent recounted the events and said he was driving at about 30 to 35 m.p.h. He also said that he had used string to tie down the mattress. The respondent was later charged with manslaughter by negligence; a charge to which he entered a guilty plea and was fined.
. In the sentencing phase of the trial, the Judge remarked:
“THE COURT: But you have to position yourself on island life, where there are not school buses passing up and down. They have to rely on persons giving them a ride. What he did is — nothing can mitigate against the fact that he did something that was very wrong and very reckless and it ended in the death of a young boy; a young upcoming athlete as...
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