Parcoi v Attorney General

• Jurisdiction: Bahamas
• Judge: Hilton, J
• Judgment Date: 18 July 2016
• Court: Supreme Court (Bahamas)
• Docket Number: Cri/con/0004/2018
• Date: 18 July 2016

Supreme Court

Hilton, J. (Ag.)

Cri/con/0004/2018

Parcoi

and

Attorney General

Appearances:

Sonia Timothy of Counsel for the applicant

Anishka Hanchell of Counsel for the respondent

Cases Mentioned:

Andrew Bridgewater v. R.S.C CR. App. No. 8 of 2007 — Terry Delancey v. The Attorney General SC Civ App. No. 43 of 2008

Legislation:

Sections 6(1); 10(1) of the Sexual Offences and Domestic Violence Act, 1999 of The Bahamas — Articles 17 and 19 of the Constitution of The Bahamas — Section 74 (a) of the Interpretation and General Clauses Act of The Bahamas.

Constitutional Law - Constitution — Applicant found guilty of rape — Appeal challenging life sentence on alleged breaches of Articles 17 and 19 of the Constitution of The Bahamas — Whether the imposition of the life sentence was unlawful and deprived the applicant of his liberty in breach of Article 19 of the Constitution — Conviction and sentence occurred prior to the abolition of the Mandatory Minimum Sentence Act, 2000 — Matter had already been adjudicated in the Court of Appeal — Action was an abuse of process of the Court — Applicant was challenging the action which affectively amounted to an appeal to the Supreme Court of a decision by the Court of Appeal — Application dismissed.

Hilton, J

1 The applicant was charged in the Supreme Gourt for the offence of Rape contrary to section 6 (1) of the Sexual Offences and Domestic Violence Act, 1991 (hereinafter referred to as “SODVA 1991”) and was convicted in 1994. Notwithstanding that it was his first conviction he was sentenced to life imprisonment.

2 The applicant appealed his conviction and sentence to the Court of Appeal; and in 1995 the Court of Appeal dismissed his appeal and affirmed his life sentence.

3 The applicant in 2011 filed a Writ of Habeas Corpus application challenging the lawfulness of the life sentence, which application was dismissed in 2012 by then Senior Justice Isaacs.

4 The applicant by Originating Notice of Motion dated 22nd February 2016 filed this constitutional application to the Supreme Court challenging the life sentence on several grounds alleging breaches of Articles 17 and 19 of the constitution.

5 The relief and/or redress sought were in the following terms:

AND FURTHER TAKE NOTICE that the grounds of this application are as follows:

• 1.) A Declaration that Article 17 of the Constitution of the Commonwealth of The Bahamas which affords the applicant the right NOT to be subjected to torture or to inhumane or degrading treatment or punishment has been infringed.

• 2.) A Declaration that the applicant is being deprived of his personal liberty, in breach of Article 19 of the Constitution.

• 3.) A Declaration that the applicant has not been given a lawful sentence, in breach of Article 19 of the Constitution.

• 4.) A Declaration that to impose a sentence on the applicant that is lawful is therefore unconstitutional.

• 5.) That the sentence be quashed and the applicant properly resentenced given the provisions of the Sexual Offences an Domestic Violence Act, 1991.

• 6) That the life sentence is harsh, excessive and severe thus, subjecting the applicant to torture, inhuman and degrading treatment and punishment.

• 1. That in 1994, the applicant was convicted of Rape, contrary to Section 6 (1) of the Sexual Offences and Domestic Violence Act, 1991. He was sentenced to Life Imprisonment.

• 2. That this was the applicant's first conviction for the offence.

• 3. That in 1995, the Court of Appeal dismissed the applicant's appeal against conviction and sentence.

• 4. That in 2011, the applicant sought relief under the Habeas Corpus Act. The Application was refused.

• 5. The Section 6 (1) of the Sexual Offences and Domestic Violence Act, 1991 provided for a first conviction, a sentence of seven years.

• 6. That the applicant has been in the Prison for the past 24 years.

• 7 That the life sentence is unduly harsh and severe, subjecting the applicant to torture, inhuman and degrading treatment and punishment.

• 8. That the sentence imposed on the applicant is unconstitutional given all the circumstances of the case.

6 Counsel for the respondent has challenged the application on the grounds that the application is an abuse of the process of the court.

7 In support of his position, counsel for the applicant referred to the relevant Bahamian Statutory provisions contained in;

S. 6 (1) of the SODVA 1991

S. 10 (1) of the SODVA 1991

S. 74 (a) of the Interpretation and General Clauses Act

S. 116 (3) of the Penal Code

As interpreted by the Court of Appeal in the case of Andrew Bridgewater v. R.S.C. CR. App. No. 8 of 2007 which expressed the view that a period of seven years is the maximum which could be imposed for a first offence of unlawful sexual intercourse; And submitted that for a charge of Rape S. 6 (1) of The SODVA 1991 must be interpreted in the same way as S. (10) (1), and that the maximum...