Rudolph Lewis Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: EDWARDS, J.A.,Justice of Appeal,Ola Mae Edwards,Davidson Kelvin Baptiste,Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 16 April 2012
• Judgment citation (vLex): [2012] ECSC J0416-3
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCRAP 2009/016
• Date: 16 April 2012

[2012] ECSC J0416-3

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCRAP 2009/016

Rudolph Lewis

Appellant

and

The Queen

Respondent

Criminal appeal against sentence — Murder — Guilty plea entered at first opportunity — Learned trial judge refusing to accept appellant's guilty plea and entering plea of not guilty instead on his behalf — Whether sentence imposed excessive and reflected early guilty plea — Whether murder being a crime of passion to be taken into account

On 22^nd March 2008, the appellant was indicted for the murder of his 21 year old common law wife. He had stabbed her 21 times with a penknife because he had suspected on numerous occasions that she had been unfaithful to him. The appellant, who was legally represented at his arraignment, pleaded guilty to the offence of murder when the charge was read to him. The learned trial judge refused to accept his plea however, and entered a plea of not guilty on his behalf. Neither the appellant's counsel nor the Director of Public Prosecutions objected to this.

After a full trial during which the defence tendered no evidence and called no witnesses, the learned judge, at the sentencing phase, sentenced the appellant to life imprisonment. On appeal against sentence, the appellant contended that the punishment was excessive and ought to be reduced to a term of years, having regard to the fact that he had pleaded guilty at the first opportunity and his plea was refused. He argued that he went through a trial process through no fault of his own, and the sentence imposed did not reflect that he benefited from his guilty plea and the fact that the murder was a crime of passion.

Held: allowing the appeal against sentence, setting aside the sentence of life imprisonment and substituting a sentence of 25 years imprisonment to run from the date of the appellant's arrest, that:

• 1. Provided that a defendant's plea of guilty to a charge of murder is unequivocal and the proper procedure is followed, a High Court judge may accept it. The trial judge has the discretion to accept a defendant's guilty plea even where the Director of Public Prosecutions has served on the defendant a notice of his intention to seek the death penalty upon conviction.

• 2. Before a defendant's guilty plea is accepted when arraigned on an indictment for murder, the trial judge is under a duty to ensure that: (a) the defendant has competent legal representation; (b) the defendant has been examined by a medical officer in order to determine whether he is fit to plead; (c) the medical officer attends court and testifies as to his opinion concerning the defendant's fitness to plead; (d) the defendant has not been coerced by his counsel or anyone else to plead guilty and no one has promised him anything to plead guilty; (e) the defendant understands the nature of the offence, the elements of the offence, and that he has the right to plead not guilty, the right to be tried by a jury, and the right to state his defence, give evidence, remain silent, call witnesses, and address the jury; (f) the defendant is made aware of the sentencing process and that in determining sentence, the court has an obligation to apply the sentencing guidelines, consider a psychiatrist and social inquiry report, his antecedents and other sentencing factors; and (g) the defendant is made aware of the maximum possible penalty, as well as the minimum possible penalty.

• 3. It is unnecessary to empanel a jury to try the issue of whether or not the defendant is fit to plead. The procedure for determining fitness to plead under section 115(3) of the Criminal Procedure Code is not applicable.

  James Robert Vent v R 25 Cr. App. R. 55 (1936) 25 Cr. App. R. 55 applied; section 115(3) of the Criminal Procedure Code Cap. 172, Revised Laws of Saint Vincent and the Grenadines 2009 cited.

• 4. The learned judge failed to take into account that the appellant acted under circumstances of domestic emotional stress which is a significant mitigating factor.

  D. A. Thomas' treatise Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division considered and applied.

• 5. The appellant had unusually strong mitigating factors in his favour and the sentence of life imprisonment did not sufficiently take into account his personal circumstances leading up to the offence. These personal circumstances which the learned judge omitted to consider would justify the Court abandoning or placing less emphasis on the objective of deterrence.

  Mervyn Moise v The Queen Saint Lucia Criminal Appeal No. 8 of 2003 (delivered 15^th July 2005, unreported) followed.

EDWARDS, J.A.

1 The appellant was indicted for the murder of his 21 year old common law wife on 22^nd March 2008. She was the mother of his two children from a 3 year turbulent relationship, marred by their infidelity and the jealousy of the appellant. The deceased left the appellant's home with their youngest child the week before her death to stay at her sister's home without the appellant's approval. The appellant, who had received news that the deceased was seen with a man in town, lured her home by pretending that their other child was sick and in hospital and the doctor needed to see her. The appellant had in fact previously taken this child to his father's home to stay on the morning of the murder, pretending to his father that the deceased was by a neighbour.

2 Under the guise that they needed to get clothes from their home for their supposedly sick child, the appellant tricked the deceased into returning home with him. The appellant accosted her at their home, and stabbed her 21 times with his pen knife. The fatal injury was a 10 cm wound to her neck which cut her external ceratoid artery and jugular vein, from which she died within minutes of receiving this injury. The appellant fled from his house, eventually gave himself up to the police, and subsequently took them to his home. He confessed to killing her in two caution statements he gave the police on the same day of the murder.

3 The appellant has appealed against the sentence of life imprisonment which the learned trial judge imposed after the jury convicted him of murder.

Relevant Trial Background Facts

4 Prior to the appellant's arraignment at the 2009 Trinity Assizes, the Director of Public Prosecutions, Mr. Colin Williams ("the DPP") served notice on the appellant that the Crown would seek the ultimate sentence of death as the penalty for his offence of murder. The appellant was then represented by learned counsel Mr. Grant Connell by legal aid assignment. The appellant pleaded guilty to the offence of murder when the charge was read to him. The learned judge refused to accept his plea and entered a not guilty plea on his behalf without any objection from his counsel or the DPP.

5 His trial commenced on 14^th May 2009. The jury heard the evidence adduced by the Crown. There was no challenge to the prosecution's 18 witnesses except for the cross-examination of the investigating officer Sergeant La Borde who obtained two caution statements from the appellant on 22^nd March 2008. Sergeant La Borde admitted that because of the nature of the crime the appellant was taken to a psychiatrist who issued a report. This report was not tendered in evidence by the Crown. Neither was the psychiatrist called to testify.

6 On the third day of the trial after the Crown had closed its case, the appellant's counsel, Mr. Grant Connell, immediately stated: "My Lord, we would not be giving evidence". I must note in passing that the appellant was not informed "of his right to address the court, either personally or by his counsel, … to give evidence on oath on his own behalf explaining to him that if he does so he will be liable to cross-examination, or to remain silent, and to call witnesses in his defence" as section 195(2) of theCriminal Procedure Code1 mandates. Neither did the court "require him or his counsel to state whether it is intended to call any witnesses as to fact …" as that section requires in all cases. Such a lapse, ought not to occur in the criminal trial process. The court heard the addresses from the DPP and Mr. Grant Connell. The jury retired after the learned trial judge's summation. After 2 hours and 15 minutes of deliberation, the jury returned a verdict of guilty of murder.

7 At the sentencing phase on 5^th and 19^th June 2009, the learned judge heard the evidence of Dr. Amrie Morris-Patterson, registered medical doctor specialising in psychiatry who examined the appellant on 25^th March 2008 and 28^th May 2009. The judge also had the benefit of a Social Inquiry Report from the witness Ms. Camille Mc Intosh. The DPP, on the authority of the Privy Council decision in Daniel Dick Trimmingham v The Queen [2009] UKPC 25,2 withdrew his death penalty notice. After hearing submissions from the DPP and Mr. Grant Connell, the learned judge, on 10^th July 2009, sentenced the appellant to life imprisonment.

The Grounds of Appeal and Submissions

8 The appellant's Notice of Appeal was prepared and filed by him without the assistance of a legal practitioner. His grounds of appeal and his case are as follows:

"(1) The Appellant is asking that the life sentence [be] replaced[d] [with] a reduced sentence.

(2) The Appellant pleaded guilty at the first opportunity and did not waste the Court's time.

(3) The appellant is a first time offender and showed remorse for his error.

(4) The punishment is too excessive sentence in all of the circumstances."

9 At the hearing of the appeal, his counsel, Mr. Ronald Marks (by legal aid assignment), indicated that he was arguing only one point and sought our leave to make oral submissions on this one point without any written skeletal...