Ervin Livingston Brown v R

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 09 December 2020
• Neutral Citation: BS 2020 CA 178
• Date: 09 December 2020
• Docket Number: SCCrApp. No. 37 of 2017
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Roy Jones, JA

The Honourable Mr. Justice Milton Evans, JA

SCCrApp. No. 37 of 2017

Between

Ervin Livingston Brown

Appellant

and

Regina

Respondent

APPEARANCES:

Mr. Roberto Reckley for the Appellant

Mrs. Stephanie Pintard for the Respondent

Angelo Poitier v. Regina SCCrApp No. 95 of 2011; considered

Attorney-General's Reference No. 32 of 1996 (R v. Whittaker) [1997] 1 Cr. App. Rep. (S) 261; applied

Attorney-General v. Francis [2008] 4 BHS J No 69; mentioned

Bowe & Davis [2006] UKPC 10; mentioned

Elrick Ferguson v. Regina SCCrApp 24 of 2002; mentioned

Jerome Daniel Francois v. Regina SCCrApp. No. 165 of 2010; applied

Peter Meadows v. Regina SCCrApp No. 132 of 2009; considered

R v. Chapman [2000] 1 Cr. App. R. (S) 377; applied

R v. Costelloe (1969) 54 Cr. App. R. 172;considered

R v. Hodgson (1968) 52 Cr. App. R. 113; applied

R v. Sands (1968) BHS J. No. 92; considered

R v. Terry William De Havilland (1983) 5 Cr. App. R. (S) 109; mentioned

R v. Thornett (1979) 1 Cr. App. R. (S) 1; mentioned

Richard Brown v. The Queen [2016] UKPC 6; considered

Criminal Appeal — Mandatory death penalty — Appellant resentenced following abolition of mandatory death penalty — Imposition of discretionary life sentence — Appeal against sentence of life imprisonment — Whether judge properly informed himself of the individual circumstances of the offender — Whether there were good grounds for believing that the appellant was likely to reoffend and posed a future danger to the public for a period which could not be estimated — Whether sentence wrong in principle — Whether sentence unduly severe.

In 1998, the appellant was convicted of murder and sentenced to the then mandatory death penalty. His appeal against conviction and sentence was affirmed in 1999 and he was duly remanded to death row.

Following the Privy Council decision in Bowe & Davis v. Regina [2006] UKPC 10, the mandatory death sentence was quashed and the appellant was brought before the Supreme Court in 2012 to be re-sentenced.

A probation report was ordered. The report indicated that the appellant had, since his admission to prison, been tentatively diagnosed with a mental condition and that he was being housed on a block reserved for prisoners who were mentally ill.

Instead of adjourning the hearing and ordering the preparation of a psychiatric report to ascertain the precise nature and extent of Brown's condition and more importantly, whether that condition put him at risk of re-offending and made him a danger to the public, the learned judge proceeded to hear legal arguments in relation to sentence. After considering the respective submissions, the judge thereupon re-sentenced Brown to imprisonment for life and directed that he receive the appropriate treatment for his mental disability.

The appellant appealed the life sentence on the ground that (i) the sentence was unduly harsh; and (ii) the sentence was wrong in principle. He filed an application for an extension of time seeking leave to appeal against the sentence on those grounds. The Crown did not object to the extension of time application and further conceded that the appeal had good prospects of success on ground (ii) as the judge had failed to fully inform himself about the appellant's personal circumstances and in particular, the mitigating circumstances of his mental condition.

Held: Extension of time application granted. Appeal allowed on ground (ii) on the basis that the imposition of the life sentence was wrong in principle. Matter remitted to Supreme Court for resentencing.

The exercise of the discretion to impose a sentence of imprisonment for life may be justified in circumstances where the offence for which the defendant is to be sentenced is particularly grave and the evidence before the sentencing judge is such that it provides good grounds for believing that the offender's likelihood of further offending is so great that he may remain a serious danger to the public for a period which cannot reliably be estimated at the time of sentence.

The mere fact that a defendant may be suffering from a mental condition, does not lead inexorably to the conclusion that the defendant is likely to re-offend or that he poses a danger to the public in the future so as to justify the imposition of the maximum sentence of imprisonment for life.

In order to justify the imposition of a sentence of life imprisonment, the evidence before the sentencing judge must be capable of supporting a conclusion that the defendant is very likely to offend again and that the defendant poses a danger to the public for a period which cannot reliably be estimated.

Having failed to obtain (as he should have) the necessary expert evidence both as to the nature and extent of the appellant's tentative psychiatric diagnosis and of his likelihood of further serious offending in the future, there was no reasonable basis for the learned judge's conclusion that the appellant may remain a serious danger to the public for a period which could not reliably be estimated.

The exercise of the judge's discretion in imposing the indeterminate sentence of imprisonment for life in this case was accordingly wrong in principle, patently erroneous and could not stand.

REASONS FOR DECISION

Judgment prepared by the Honourable Madam Justice Crane-Scott, JA

Introduction and Background

1 On 27 January, 1998, the intended appellant, (“Brown”) was convicted along with his brother, Jason Brown, on a five count indictment which charged them jointly with one count of murder and two counts each of attempted murder and causing a wound. They were each sentenced to the then mandatory death penalty on the count of murder; to 14 years on the two attempted murder counts; and to 6 months in respect of the two counts of causing a wound.

2 They both appealed their convictions and sentences; and on 5 ^th October, 1999, after hearing their appeals, the Court of Appeal (differently constituted) allowed Jason's appeal, but dismissed Brown's appeal and affirmed his convictions and sentences, including his sentence of death for murder.

3 The following summary, extracted from the Court of Appeal written Judgment in (SCCrApps. Nos. 5 & 6 of 1998) affirming Brown's convictions and sentences, will provide the necessary factual background:

“The scene was a yard, called Collins Yard, which is off Okra Hill in Nassau. It is a yard of many houses and the happenings on 26 January would seem to have had their origin in a quarrel and fight that had taken place between one of the injured men, George Collins and the second appellant, Jason Brown, who is the brother of the first appellant, Ervin Brown, some eight days earlier, on the 18 January. It would appear that Collins and another man were playing a game of dice under the window of one of the dwellings at the back of the yard that was occupied by the father of the appellants. The noise that they were making annoyed the father, and the second appellant who was then brushing his teeth in the house, came out to remonstrate with the players. Collins apologized and he and the other player removed from the area. But the apology did not seem to placate Jason who shortly after came to where Collins was and drew a knife. Collins picked up a concrete brick and struck him. A fight ensued which took them to the back of the yard where it ended, but not before Jason had threatened that he and “his boys” would “get” Collins.

Then came the fatal day. Sometime during the late morning or towards midday on 26 January 1996 Collins was again in the yard. He was there to visit his relatives who lived in one of the houses. He was standing outside their home with his brother, Patrick Daxon, and others, including the deceased, Adras Moltimer. The brother Patrick was entertaining the gathering with capering and jokes, when Jason came up behind Collins with a drawn knife. One of the group alerted Collins and he was able to pick up a bottle and face his would-be assailant. Jason ran toward the front of the yard pursued by Collins, and during this chase, and while still in the yard, Jason was heard to say “pull the rod, pull the rod”. The first appellant who was somewhere towards the side of the yard then pulled a gun from his waist and fired three shots. But before he could fire, Collins, apparently realising that he may be in danger, began to retrace his steps by by running towards the back. It was then that the shots rang out. He suffered a bullet wound to the left calf, and his brother Patrick an injury to the left buttock and leg, whilst Adras Moltimer fell dead from a bullet that penetrated his skull resulting in metal fragments protruding through the bridge of the nose.”

4 Approximately 7 years later, in 2006, the Privy Council in Bowe & Davis [2006] UKPC 10 declared the imposition of the mandatory death penalty unconstitutional in The Bahamas. Like so many condemned prisoners who had also been sentenced to death, the Privy Council decision had obvious implications for Brown's death sentence. In due course of time, and pursuant to a Practice Direction issued by the then Chief Justice, Sir. Burton Hall, Brown was brought back before the Supreme Court in February, 2012 to be re-sentenced in respect of his murder conviction.

5 In advance of the hearing, the sentencing judge duly ordered the preparation of a probation report; and on 13 March, 2012, probation officer, Ms. Matrena Carey, summarized the contents of her report in the following terms:

“Based on the information given, it appears as if the Concerned was initially reared by his maternal grandparents, then later by his parents, when he was an adolescent. His parents, who shared an acrimonious common-law relationship, seem not to have provided the necessary guidance for a stable upbringing. There were...