Tido v The Attorney General

JurisdictionBahamas
CourtCourt of Appeal
JudgeConteh, J.A.
Judgment Date25 February 2015
Neutral CitationBS 2015 CA 14
Date25 February 2015
Docket NumberSCCrApp & CAIS 296 of 2013

Court of Appeal

John, J.A.; Conteh, J.A.; Adderley, J.A.

SCCrApp & CAIS 296 of 2013

Tido
and
The Attorney General
Appearances:

Mr. Glendon Rolle, Counsel for the appellant.

Ms. DareII Taylor, Counsel for the respondent.

The Attorney-General v. Larry Raymond Jones and others SCCrAPP Nos. 12, 18 and 19 of 2007 , considered

Ernest Lockhart v. The Queen (2011) U.K.P.C. 13 — mentioned

Maxo Tido v. The Queen (2011) UKPC 16 — considered

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

Criminal Practice and Procedure - Appeal against sentence — Murder — Sentenced to death — Privy Council allowed appeal against sentence — Remitted matter to Court of Appeal for imposition of the appropriate sentence — Resentenced to 60 years imprisonment — Whether the judge was right in all the circumstances of the case to have passed the sentence he did — Whether the court should interfere with the sentence imposed — Whether the resentencing judge erred by taking into consideration matters of a probation report which should not have been considered during the sentencing process — Whether the murder fell into the category of the worst of the worst.

The current appeal arises out of a re-sentencing hearing whereby the appellant was sentenced to 60 years imprisonment. The court, taking into account the 8 years already spent in prison by the appellant, ordered that the 52 years remaining of his sentence were to begin as at the date of the re-sentencing hearing. The appellant appeals the aforementioned sentence on the ground that the sentence imposed upon him was too severe.

Held:

appeal allowed.

Pursuant to section 13(3) of the Court of Appeal Act a term of 40 years imprisonment ought to be substituted. The 60 year sentence imposed upon the appellant at the re-sentencing went to the outer limit of the 30 — 60 year range and did not consider the categorization by the Privy Council that this murder was not a case of the worst of the worst.

The Probation Report on the appellant contained prejudicial matters such as the preference of the victim's mother suggesting a long term of imprisonment and that the sentence of death, initially imposed upon the appellant ought to be carried out.

Conteh, J.A.
1

It is perhaps relevant and necessary to state, if only briefly the background to this appeal

2

The appeal itself arises from a re-sentencing of the appellant by a judge of the Supreme Court. On 20th March, 2006, the appellant was convicted of murder after a trial before a judge and jury. Following a sentencing hearing on 20th April, 2006 the judge sentenced the appellant to death.

3

On 14th October, 2008 this court (differently constituted) dismissed the appellant's appeal against his conviction and sentence.

4

On 26th February, 2010, the appellant was granted special leave to appeal by the Judicial Committee of the Privy Council against both his conviction and the death sentence imposed on him.

5

In its judgment delivered on 15th June, 2011, the Board dismissed the appellant's appeal against his conviction. However, the Board allowed his appeal against his sentence and “remitted the matter to the Court of Appeal of the Bahamas for the imposition of the appropriate sentence in light of the Board's judgment.” See: Maxo Tido v. The Queen [2011] U.K.P.C. 16

6

The facts and circumstances of the appellant's trial as they emerged from the evidence are helpfully set out at paragraphs 3 to 15 of the Board's judgment.

7

The upshot of the Board's order on the sentence of death on the appellant was that he appeared before a judge of the Supreme Court on 22nd March, 2012 to be re-sentenced.

8

At the re-sentencing hearing, after hearing submissions on behalf of the Crown and the appellant, the learned judge concluded as follows:

“I accept all of what Mr. Boodle has said, this is not a case where the death penalty is merited since the Privy Council has said it is not. The Court is of the view that life imprisonment is not merited; however, that does not mean that a long period of incarceration is not merited. In the circumstances, the Court passes a sentence of 60 years in prison… upon you. The court takes into account the eight years you would have spent in custody. You will therefore be required to serve a period of 52 years imprisonment at Her Majesty's Prison. Your sentence commences as of today.”

9

In effect, the appellant was sentenced to 52 years imprisonment for the murder he was convicted for in 2006, after taking into account the eight years he had spent in custody.

10

Against that sentence, the appellant has brought the present appeal.

THE GROUNDS OF APPEAL AGAINST SENTENCE
11

The appeal is launched on the following grounds:

  • “1. The Learned sentencing Judge erred by taking into consideration matters of a probation report, which should not have been considered during the sentencing process.

  • 2. The Learned sentencing Judge failed to follow any of the guidelines classifying what is, “the worst of the worst', or the rarest of the rare', set out in the decision of the Privy Council appeal 0050 of 2010, Ernest Lockhart v. The Queen.

  • 3. The Learned Sentencing Judge failed to acknowledge that my case does not fall into the category of the cases which (in the Board's view) is considered to be the worst of the worst', rarest of the rare and thus handed down the wrong and inappropriate sentence.

  • 4. The Learned sentencing Judge erred as he poses 60152 years sentence on by not seeking to first a psychiatric report to result any mental problems to warrant such a harsh sentence.

  • 5. The sentence is too severe and unsatisfactory.”

12

At the heart of the appellant's appeal is the assertion that the judge was wrong to have imposed the term of imprisonment that he did in this case. Therefore, the issue on this appeal was whether the judge was right in all the circumstances of this case to have passed the sentence he did or should this court interfere with that sentence?

THE SENTENCE OF 60 YEARS IMPRISONMENT
13

It is pertinent we think to start with the statement of the Privy Council on remitting the issue of sentence to The Bahamas. In its judgment dated 15th June, 2011 the Board stated that the murder in issue was not “the worst of the worst” or “the rarest of the rare” and it was satisfied that the “case did not come within the wholly exceptional category”; it went on to speak of the nature of the murder in the following terms:

“This was a dreadful crime. A young life was extinguished in brutal circumstances but it is not a case that can be placed along side the most horrific of murders of which, sadly, human beings are capable. There is no warrant for believing that it was planned, nor is there unmistakable evidence that it was accompanied by unusual violence, beyond that required to effect Miss Conover's killing. There certainly appears to have been sexual contact (spermatozoa having been found on a vaginal swab) but there is no clear indication that she was the victim of rape. This was, in short, an appalling murder but not one which warrants the most condign punishment of death.”

14

We are mindful that as an appellate court we do not readily interfere with a sentence passed by a trial court unless there is some error in principle: see R v. Gumbs (1927) 19 Cr App R 74, per Lord Hewart, Lord Chief Justice of England. We are also mindful of the fact that an appeal against sentence is essentially one of law and not necessarily one against a finding of fact by a trial judge.

15

Although the appeal is against a re-sentencing by another judge and not by the trial judge whose original sentence had been set aside, the principle of not lightly or readily interfering with sentence is not lost.

16

Section 13(3) of the Court of Appeal Act Chapter 52...

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