Privy Council dismisses constitutional challenge to 15-year sentence

THE Judicial Committee of the Privy Council on Thursday dismissed the constitutional challenge brought by Jamaican Tafari Morrison against the 15-year sentence for wounding with intent that he is now serving.

Morrison, at age 16, was charged with illegal possession of a firearm, robbery with aggravation and wounding with intent for a 2012 attack on a man in Russell Heights, St Andrew.

According to evidence in the matter, Morrison, in August of 2012, while in the company of another, held a St Andrew man at gunpoint and ordered him to hand over his cellular phone that he had been using. Morrison, according to that complainant, fired several shots at him after being given the phone, resulting in him being wounded. He claimed that Morrison and the other male took up spent shells from the scene before driving away in a BMW motor car.

In a trial in the High Court Division of the Gun Court in Kingston in 2013, Morrison — who had initially pleaded not guilty — changed his plea to guilty on all counts. He was subsequently sentenced to 15 years’ imprisonment on each count, with the sentences to run concurrently. The judge imposed the sentences on the basis that he considered himself statutorily bound to impose a minimum 15-year sentence in respect of each offence. Morrison was 17 by the time he was sentenced.

In an application for permission to appeal the sentences imposed on him Morrison argued on a single ground, stating that “the appellant, who is a child, wishes to appeal the mandatory minimum sentence of 15 years as being inconsistent with the provisions of the [Charter of Fundamental Rights and Freedoms and the Child Care & Protection Act [2004]. The sentence is manifestly burdensome”.

The Court of Appeal, in allowing his appeal in part, reduced the sentences imposed for illegal possession of a firearm and aggravated robbery. It, however, upheld his 15-year sentence for wounding with intent on the basis that the offence carries a minimum sentence of 15 years; and the minimum sentence is constitutional.

Morrison, in appealing to the Privy Council in the matter, which was heard by the Judicial Committee over two days January 25 and 26 this year, asked the United Kingdom-based body to consider whether a 15-year mandatory minimum sentence for wounding with intent whilst using a firearm violates international human rights standards and the Jamaican Constitution.

In the judgment handed down Thursday, the committee, in answer to the question of whether the sentence was unlawful, said it found that the case had many aggravating features such as the casual use of potentially lethal violence by shooting at the victim after the robbery and the disturbing forensic awareness and care in collecting the spent cartridges afterwards.

The judges said they “concluded, in light of the factual circumstances of the case, the sentence for wounding with intent was one where a substantial period of imprisonment was appropriate for deterrent effect, especially where Jamaica has a social reality of the damaging and corrosive effects of the unlawful use of firearms”.

“The background to this case makes clear it is the use of guns that has damaged Jamaican society and consequently attracts a sentence with a bigger deterrent element,” said the Privy Council, Jamaica’s final court of appeal.

The judges went on to say that they were satisfied that it cannot be said that the sentence imposed was grossly disproportionate and hence that it could be incompatible with the Charter of Rights on the basis that it was an inhuman or degrading punishment or treatment.

In answering the question: “In the event that the minimum sentence is in breach of the Charter, what effect, if any, does that have on the lawfulness of the minimum sentence provision?” the judicial committee said it was “satisfied that the minimum sentence imposed in this case was not incompatible with the Charter but accepts that, considering the wide operation of the provision to children, there may be cases where the minimum sentence would constitute inhumane or degrading punishment or treatment”.

The committee, however, said that “does not, however, require the board to strike down that portion of Section 20 of the Offences Against the Person Act (OAPA) containing the minimum sentence provision”.

Furthermore, the Privy Council said there is no evidence that the minimum sentence provision in Section 20 of the OAPA satisfies the test of a lack of proportionality.