Big Win for DPP

DIRECTOR of Public Prosecutions Paula Llewellyn, KC, has said Friday’s ruling by the Appeal Court, in what was the Crown’s first appeal under the Judicature (Appellate Jurisdiction) (Amendment) Act 2021, is a win for the public’s interest and one that will “act as a guide for all stakeholders in the system”.

The court, in overturning the 12-year sentences of Westmoreland man Lindell Powell who was convicted for two 2017 murders, ordered that the sentences imposed by the learned sentencing judge be quashed and life sentences imposed instead. It ruled that Powell will now serve two life sentences at hard labour.

On count one the Appeal Court ordered that Powell serve life in prison, with a stipulation that he serves 20 years and seven months at hard labour before becoming eligible for parole.

On count two Powell will serve life in prison, with the stipulation that he serve 24 years and seven months at hard labour before becoming eligible for parole. The sentences are to run concurrently and are to be treated as having commenced on the date they were imposed. Effectively, Powell will serve the longest of the two sentences, which is the 24 years and seven months at hard labour.

The historic appeal, which was brought before the Appeal Court in May this year, was the first to be filed under the Act. The Crown had recommended life imprisonment, with eligibility after 21 years for each count during the original sentencing. That bid was, however, dismissed by Justice Bertram Morrison who tried the matter.

The Appeal Court, in declaring Friday that sentencing judge Justice Bertram Morrison “erred” in those decisions said, “the approach taken was, with respect, at best unorthodox”.

Speaking with the Jamaica Observer in the aftermath of the judgement the DPP said, “We at the office of the Director of Public Prosecutions — because it was a team effort — are grateful that we have seen in our lifetime, legislation that has been passed which has facilitated our balancing the scales in respect of the access to appeal in these circumstances.

“I look at it as the pendulum of justice swinging, not only in the direction of the accused in this particular area of practice but also in the direction of the victim through the prosecution having the right of appeal in limited circumstances,” she told the Observer.

Llewellyn said although Jamaica is among one of the last countries to have this right, it was “better late than never”.

“We are just grateful that the hard work and the research and the submissions that were made found favour with the Court of Appeal who provided a very detailed analysis and composition and interpretation and recognition of the relevant legal concept, and this judgement will act as a guide for all stakeholders in the system,” she said.

According to the DPP, “in the same way that case law has acted as a great guide in terms of what is manifestly excessive in respect of sentencing, which would be unfair to an accused person, it’s the same way this particular judgment will enhance our jurisprudence as it relates to the concept called unduly lenient and how it should be avoided — because if it is not avoided it can destroy or damage the public’s confidence in the administration of justice in the same way that a sentence that is manifestly excessive would also destroy the public’s confidence”.

In the meantime the DPP — in highlighting the roles of Senior Deputy Director of Public Prosecutions Andrea Martin Swaby and Jeremy Taylor, KC, and prosecutors Renell Morgan and Marvin Richards in the matter — paid homage to past directors of public prosecutions Kent Pantry, KC; the late Glen Andrade, KC; and Ian Forte, KC who “supported the prosecution having the right of appeal as a principle of criminal practice that should have been put into play long before now”.

“But, suffice it to say that when the baton was passed to me as director of public prosecutions I, along with my team, continued the effort in respect of making the necessary submission to the relevant authorities at the Ministry of Justice; and I have to thank the Honourable Minister of Justice Mr Delroy Chuck who, in turn, made strenuous representation,” the DPP said. She said former justice minister under the previous Administration, Mark Golding also played a role in the process.

The Appeal Court, in the written judgement, said the questions it sought to answer in its ruling were whether the sentencing judge had erred in principle in imposing the original sentences, whether he had the power to impose. According to the judges of the appeal, “the learned judge should have stipulated a period of not less than 20 years before the respondent would have become eligible for parole”.

The court further said although the judge had made several references to the Criminal Justice (Administration) (Amendment) Act, 2015 requiring him to consider, among other things, whether the sentences he would impose would shock the public conscience, and that it empowered him to grant a discount of up to 50 per cent, a careful reading of the Act shows that this was, in fact, not so.

It said “in making this error, the learned judge seemed to have conflated the provisions under Section 42D and Section 42E of the Act”, adding that “the reality is that Section 42D of the CJAA applies to offences generally — that is, those other than murder — and permits a sentencing judge, on a guilty plea on ‘the first relevant date’, to reduce a sentence ‘by up to 50 per cent’ “.

“It seems to us that although the learned judge several times referred to Section 42(H) of the Act and the concept of a sentence shocking the public conscience, he failed to pay sufficient regard to the views expressed in the community report section of the social enquiry report and to give those views greater weight than he did in informing the sentences ultimately imposed. We are of the view that those considerations, along with all the other circumstances discussed in this case, give a sufficient indication that the sentences imposed would, indeed, shock the public conscience,” the judges stated.

The Appeal Court judges further said “although the learned judge mentioned some of the main factors and principles to be taken into account in deciding on the appropriate sentences in this case, the approach taken was, with respect, at best unorthodox”.

“The approach taken in the final imposition of the sentences also demonstrates an unusual lumping together of the sentences for the two offences, or counts, on the indictment. It is to be borne in mind that where the counts on the indictment arise from different circumstances, there should be individual consideration of the appropriate sentences. The methodology employed by the learned judge resulted in the same sentence being imposed for both offences without any apparent consideration of the difference in the circumstances,” the court declared further.

In summary, the Appeal Court said the judge erred in (i) imposing a sentence of 12 years’ imprisonment instead of life imprisonment (or at the very least, of 15 years’ imprisonment) in respect of count one; and (ii) in imposing a sentence of 12 years — that is, less than the prescribed minimum of 15 years’ imprisonment — for count two.

“We take the view that the learned judge fell into error in imposing the sentence that he did in relation to, at the very least, count one. He, therefore, imposed sentences that he had no power to impose, thus entitling us to sentence the respondent afresh,” it stated.

Powell was taken into custody after being held with a firearm belonging to Oral McIntosh, a licensed firearm holder, who was shot dead at his home at Top Lincoln District, Grange Hill, Westmoreland, on Saturday January 7, 2017.

During a question-and-answer interview held on July 15, 2017, Powell indicated that he was in the company of Logan Miller, otherwise called Alkaline (now deceased), on the day of the murder.

Powell confessed that he and Alkaline were on the road robbing men and women when he saw two men in a yard. He went to them and said “go pon unnu face”. While the men were on the ground he searched McIntosh’s van while Alkaline searched the men. He said that Alkaline found a gun on McIntosh, shot him in his head, and took the gun. They also took the slain man’s phone and about $32,000 in cash.

Powell also confessed to the murder of a man named Ika Clarke in March 2017 at Mount Mountain, Grange Hill, Westmoreland.

When he was asked what part he played in that murder he said, “Fire five shot inna him chest.”

He also stated that Clarke was killed because, “him did a mek talk seh mi cousin, Bleacher, cyaan bury an den mi a go dead — an him already kill one a mi fren, Jabez “. Additionally, Powell said that the gun the police found on him on July 14, 2017 was one of the weapons used to kill Clarke.

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