Jones v R
| Jurisdiction | Bahamas |
| Court | Court of Appeal (Bahamas) |
| Judge | Osadebay, J.A. |
| Judgment Date | 29 October 2008 |
| Neutral Citation | BS 2008 CA 16 |
| Date | 29 October 2008 |
| Docket Number | Criminal Appeal No. 11 of 2007 |
Court of Appeal
Sawyer, P.; Ganpatsingh, J.A.; Osadebay, J.A.
Criminal Appeal No. 11 of 2007
Mr. Wayne Munroe, with him Mr. Serville and Mr. Jairam Mangra for the appellant.
Mr. Vernal Collie for the respondent.
Criminal practice and procedure - Sentence — Murder — Appeal against a re-sentencing hearing for murder conviction — Court of Appeal will not interfere with trial judge's discretion unless the judge erred in matters taken or not taken into consideration.
On the 24th April, 2008, after hearing submissions by counsel we dismissed the appeal by Keith Jones, the appellant, against the sentence imposed on him by Allen Sr. J. following a re-sentencing hearing at the Supreme Court on 24th March, 2007, after we had varied the sentence to one of imprisonment for life. We indicated that our reasons will be given at a later date. We now give our reasons.
On the evening of 2nd October, 1999 James Rolle (the deceased) approached the appellant's grandmother's house on Peter Street and made certain remarks to the appellant about the mother of the appellant's child. An argument ensued between James Rolle, (the deceased) and the appellant. In reply to the remarks the appellant said “You little sissy niggers. You all little punks, I shoot you. I don't play.” During the verbal exchange which followed, the deceased called the appellant a “powder head”, whereupon the appellant shot the deceased twice with a machine gun and fled the scene. The appellant remained on the run for some seven months before he was arrested by the police and charged with the murder of the deceased.
On 18th February, 2002, the appellant, Keith Aaron Jones, was convicted at the Supreme Court after a trial before Allen Sr. J. and a jury of the murder of the deceased and was sentenced to death in accordance with the law as it was understood at the time.
The jury rejected the appellant's case of self defence and found that he had not been provoked in the legal sense by anything alleged to have been said or done by the deceased in the circumstances.
The appellant appealed his conviction and sentence to the Court of Appeal and on 24th February, 2003 the Court of Appeal dismissed his appeal and affirmed his conviction and sentence. The appellant appealed the mandatory death sentence passed on him at the trial to the Privy Council and on 3rd October, 2006, his appeal against sentence was allowed. Their Lordships ruled that section 312 of the Penal Code of The Bahamas (now section 291) should be construed as imposing a discretionary (and not mandatory) sentence of death. Their Lordships quashed the death sentence which had been imposed on the appellant and remitted the matter to the Supreme Court for consideration of the appropriate sentence. See: Keith Aaron Jones v. The Queen, Privy Council Appeal No. 47 of 2006 delivered 3rd October, 2006.
On 27th March, 2007, the appellant appeared before Allen Sr. J. on a re-sentencing hearing. The learned judge in the re-sentencing considered matters contained in the probation report including the appellant's family background, personal history and a statement that the appellant expressed remorse for his involvement in the offence as well as to the entire circumstances attendant on the commission of the crime. In addition the learned judge heard submissions from counsel on behalf of the appellant and the prosecution.
In her decision the learned judge said:
“5. The prosecution characterized the convict's reaction to what the deceased said to him as a cold-blooded execution, of a heinous nature and demonstrating a callous indifference to human life. Mr. Turner argued that had it not been for the principle in Pratt and Morgan, the death penalty would be appropriate.
6. Mr. Munroe asks me to take into account the remarks directed by the deceased to the convict prior to the shooting, the convict's personal circumstances, the lack of any evidence of impairment of the convict by the use of drugs or alcohol and the fact that he has been incarcerated since 2000.
7. I have had regard to the matters raised by Mr. Munroe, the matters contained in the probation report including the convict's family background, personal history and a statement that the convict expressed remorse for his involvement in this offence as well as to all of the circumstances attendant on the commission of this crime.
8. Having given this matter careful consideration, I am of the view that the convict turned a machine gun on a defenseless unarmed man and shot him twice for a remark which should barely have hurt his feelings. In my view, any person found guilty of the offence of murder committed by using a firearm should be liable to the death penalty, more so in this case, where the firearm used was machine gun, a powerful weapon against which the deceased did not have a chance.
9. The prosecution is not seeking the death penalty in this case based on the principle in Pratt [1994] 2 A.C. 1 that a delay of five years between sentence and the date execution is to take place can amount to inhuman and degrading treatment or punishment contrary to Article 17 of the Constitution of The Bahamas. Of course, it could have been argued in this case that the delay is not yet 5 years considering that the sentence of death was quashed in 2006 and would not begin to run again until the death sentence is re-imposed. However, having regard to the legal proceedings, which would attend such a sentence, the time would continue to run and ultimately, the delay would offend that principle.
10. In the circumstances and in view of the principle in Pratt (above), I agree that a life sentence should be imposed. Keith Aaron Jones for the reasons mentioned heretofore, I sentence you to imprisonment for the rest of your natural life for the murder of James Rolle.”
The appellant appeals against that sentence.
Before us it is argued by counsel on behalf of the appellant that –
“1) The sentence imposed by the learned trial judge is not a sentence known to law.
2) The learned judge's pronouncement of the sentence with the words — “for the rest of your natural life” is an impermissible attempt to interfere with the prerogative of mercy and purports to prohibit/limit the exercise of the Board's discretion to release the convicted man.
3) In all the circumstances the sentence is excessive”
In support of these submissions counsel for the appellant relies on the authorities of (1) Darling v. R. [1971–76]...
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