The Atttorney General v Claude Lawson Gray

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett,Sir Brian Moree, CJ,Madam Justice Crane-Scott, JA
• Judgment Date: 10 September 2020
• Neutral Citation: BS 2020 CA 111
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 115 of 2018
• Date: 10 September 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Sir Brian Moree, CJ

The Honourable Madam Justice Crane-Scott, JA

SCCrApp. No. 115 of 2018

Between

The Atttorney General

Appellant

and

Claude Lawson Gray

Respondent

APPEARANCES:

Mr. Rodger Thompson, Counsel for the Appellant

Mr. Dorsey McPhee, Counsel for the Respondent

Criminal appeal — Manslaughter — Sentencing guidelines — Whether sentence unduly lenient

On 6 November 2007 the respondent visited the home of his friend TM. While there a verbal dispute arose and then escalated, resulting in the respondent stabbing TM with a screwdriver. TM died as a result of his injuries and the respondent was charged with his murder in November 2007. He was released on bail in December 2008. Ten years following the incident, in 2017, the respondent was tried for TM's murder; he was found not guilty of murder but guilty of manslaughter and sentenced to 7 years imprisonment. The appellant now appeals that sentence as being unduly lenient and further that there were no strong mitigating factors deserving of such degree of leniency.

Held: appeal dismissed. Sentence affirmed.

per Barnett, P: Undoubtedly the 7-year sentence may be considered lenient. The issue to be determined, however, is whether the sentence is so lenient that no reasonable judge, applying the principles of sentencing could impose such a sentence in the circumstances. Having regard to the sentencing ruling, there was no error of principle disclosed, nor could it be said that the judge exercised her sentencing discretion unreasonably.

The only basis for the Crown's appeal is that the sentence falls outside the range of sentences set out in The Attorney General v Larry Raymond Jones et. al. and there was no reason to go below that range. However, the Court in Larry Raymond Jones had to determine the appropriate range of sentences for murder and in doing so indicated that that range must be proportionate with sentences imposed for manslaughter. The decision in Larry Raymond Jones does not, in fact, have authoritative effect as regards sentences for manslaughter.

Even if Larry Raymond Jones was to be regarded as an authoritative “guideline” for manslaughter sentences, generally speaking it is settled law that a sentencing judge has the power to impose a sentence that is outside the range set out in the guidelines. When departing from the guidelines a sentencing judge should explain why a sentence outside the range is being departed from. The failure to so explain, however, does not automatically make the sentence unduly lenient. The appellate court must still determine whether the actual sentence passed is unduly lenient such that no reasonable judge could have imposed it.

Having regard to sentences imposed by this Court and other courts in similar situations, it cannot be said that the 7 year sentence is unduly lenient.

Andrew Knowles v Regina SCCrApp. No. 73 of 2015 considered

Attorney General Reference No. 20 Stephen Ronald Roast (1992) 13 Cr. App. R (S) 377 considered

Attorney General's Reference (No. 4 of 1989)90 Cr. App. R 366 considered

Aubrey Darling v R SCCrApp. No. 155 of 2017 considered

Burton v R, Nurse v R(2014) 84 WIR 84 applied

Christine Johnson Alcock v R Criminal Appeal No. 30 of 2001 considered

Dominique Moss and Keith Lotmore v R SCCrApp. Nos. 11 & 14 of 2004 considered

Donnell Rolle v R [2011] 3 BHS J No 25 considered

DPP v McGrath[2020] IECA 41 considered

Forrester Bowe and Trono Davis v The Queen[2006] UKPC 10 mentioned

Kenneth Samuel v The Queen Criminal Appeal No. 7 of 2005 considered

Leroy Rolle v The Attorney General SCCrApp. No. 182 of 2010 considered

Mikko Black v R SCCrApp. No. 40 of 2014 considered

Millberry v R; R v Morgan; R v Lackenby[2002] EWCA Crim 2891 considered

Murdock v R[2003] NICA 21 considered

Prince Hepburn v Regina SCCrApp. No. 79 of 2013 applied

R v Crisnell Desir Criminal No. 688 of 2009 considered

R v Rick Dickson 2019 unreported considered

R v Fanel Joseph Criminal No. 43/2/2012 considered

R v Fitzroy Manderson 2019 unreported considered

R v Garfield Haughton 2019 unreported considered

R v Ingraham [2004] BHS J No. 385 considered

R v Jeffery Campbell 2019 unreported considered

R v Joylyn James GDAHCR2017/0018 considered

R v Martie Hight Court Criminal Case No. 9 of 2002 considered

R v Pierre Lorde(2006) 73 WIR 28 considered

R v Poucette (2019) ABQB 725 considered

R v Shyback (2018) ABCA 331 considered

R v Smith [1991] BHS J. No. 71 considered

R v Taniskishayinew (2018) BCSC 296 considered

R v Townsend [2019] EWCA 2093 considered

Raphael Neymour v Regina SCCrApp. No. 172 of 2010 considered

Roger Naitrim et al v The Queen HCRAP Nos. 5, 6 and 8 of 2006 considered

Tenelle Gullivan v R No. 5 of 2005 considered

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

per Moree, CJ: Since the delivery of the judgment in The Attorney General v Larry Raymond Jones, Patrick Alexis Jervis & Chad Goodman the courts have recognized that the range of sentences set out therein for the offence of manslaughter is a baseline and a sentencing judge judge can impose a higher or lower sentence provided that cogent reasons are given. The guidelines set out in Larry Raymond Jones provide assistance to a judge in arriving at an appropriate tariff for a particular accused person convicted of either murder or manslaughter in a particular case. Further, when properly applied, the guidelines seamlessly co-exist with the discretion of the sentencing judge in order to achieve the ultimate objective of justice in criminal cases.

In the present case the learned judge was correct in accepting the sentencing guidelines laid down in Larry Raymond Jones as the baseline; and she was right to accept that in certain circumstances a sentencing judge can deviate from those guidelines. Having read the sentencing ruling in its entirety it is clear that the judge adequately explained her reasons for deviating from the range set out in Larry Raymond Jones and on the facts of this case the sentence, although lenient, may not be considered unduly lenient.

Even if the sentence was considered unduly lenient, an appellate court must take the additional step of determining for itself whether it would be right to exercise its discretion to increase the sentence. Having regard to the facts of this case the Court should decline to exercise its discretion to increase the sentence.

A.G.'s Reference No. 20; Stephen Ronald Roast (1992) 13 Cr App. R. (S) 377 applied

Andrew Knowles v Regina SCCrApp No. 73 of 2015 mentioned

Andy Francis v R SCCrApp. No. 133 of 2009 considered

Attorney General v Quincy Todd SCCrApp. No. 56 of 2010 considered

Attorney General's Reference No. 4 of 1989 (1990) 11 Cr. App. R. 366 applied

Attorney General's Reference No. 16 of 1992 (1993) 14 Cr App R (S) 137 applied

Aubrey Darling v R SCCrApp No. 155 of 2017 mentioned

Burton v R, Nurse v R(2014) 84 WIR 84 considered

Caryn Moss v The Director of Public Prosecutions SCCrApp. No. 230 of 2018 considered

Crisnell Desir Criminal No. 688 of 2009 mentioned

Denie Osias v Regina SCCrApp & CAIS No. 309 of 2014 considered

Donnell Rolle v R [2011] 3 BHS J No. 25 mentioned

Forrester Bowe and Trono Davis v The Queen[2006] UKPC 10 mentioned

Mikiko Black v R SCCrApp No. 40 of 2014 considered

Murdock v R[2003] NICA 21 considered

R v Fanel Joseph Criminal No. 43/2/2012 mentioned

R v Gumbs (1927) 19 Cr. App. R. 74 considered

Raphael Neymour v The Attorney General SCCrApp No. 172 of 2010 considered

Tenelle Gullivan v R No. 5 of 2005 mentioned

The Attorney-General v. Frederick Derrick Francis SCCrApp. No. 2 of 2007 considered

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

The Attorney General v Larry Raymond Jones, Patrick Alexis Jervis & Chad Goodman SCCrim App Nos. 12, 18 & 19 of 2007 applied

The Attorney General v Vilner Desir and Delano Taylor SCCrApp No. 45 of 2015 applied

Young v Bristol Aeroplane Co. Ltd.[1944] KB 718 considered

per Crane-Scott, JA: It is very doubtful whether the Court in The Attorney General v Larry Raymond Jones et. al. ever intended to lay down a comprehensive sentencing “guideline” for manslaughter offences. The so called guideline judgment in Larry Raymond Jones provides no guidance whatsoever in relation to where along the suggested sentencing continuum certain categories of manslaughter offences might lie. Further, the so-called “guideline” makes no attempt to differentiate between for example, unintentional homicides, manslaughter by diminished responsibility or by provocation; or the special provisions of section 299 of the Penal Code. Having regard to these deficiencies, if guidelines were indeed set in the preceeding 7 years, it is hard to avoid the conclusion that they were not as comprehensive as they should have been and that the 18 to 35 year range is somewhat selectively drawn.

Even if the 18 to 35 year range in Larry Raymond Jones was intended to lay down a firm “guideline” for manslaughter, it is in effect no more than a guide and it certainly does not rise to the level of a binding principle of law. Simply put, “guidelines” do not fetter the sentencing discretion of a Supreme Court judge, whose role alone it is to determine the appropriate sentence to be passed in individual cases, having applied his or her mind to all the relevant material, including reported cases, any relevant sentencing guidelines and other matters which could reasonably be considered appropriate in the circumstances.

Further, it does not follow from the mere fact that a sentence falls below the suggested range identified in Larry Raymond Jones, that the sentence is ipso facto wrong in principle or is unduly lenient. Irrespective of whether the case is a guideline or not, the task of this Court is to...