Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 16 of 2016

Gardiner v. Regina (CR-AP 16 of 2016) [2017] TCACA 16 (01 December 2017);

Law report citations
Media neutral citation
[2017] TCACA 16
Coram
Mottley, P
Stollmeyer, JA
Weekes, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL APPEAL No. 16 of 2016

BETWEEN

ISAAC GARDINER

APPLICANT

AND

REGINA

RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley,                             President

The Honourable Mr. Justice Stollmeyer,                        Justice of Appeal

The Honourable Mdme. Justice Weekes, Justice of Appeal

APPEARANCES:

Mrs. Lara Maroof-Misick for the Appellant

The DPP, Ms. Gillian Williams, and Ms. Kellee-Gai Smith for the Respondent

09 February & 21 February 2017; 01 December 2017

JUDGMENT

Weekes, JA.

1.             This matter was heard on 10 February 2017, and on 21 February 2017, we gave our unanimous decision allowing the appeal and varying the sentence of thirteen years imposed by the trial judge to one of 9 years. This is our written judgment.

2.             On 26 May 2016 the appellant, Isaac Gardiner, pleaded guilty to the offence of aggravated burglary contrary to section 12(1) of the Theft Ordinance Cap 3.10.

3.             The facts as laid out by the Crown, accepted by the appellant and adopted by the Court were that around 2:00 am on 16 January 2016, the appellant broke into a residence and entered the bedroom of SH, a 15 year old special-needs girl. She awakened and recognised the appellant, who was a neighbour. She noticed that he was carrying a knife. He also had a condom with him as it was his intention to have sexual intercourse with SH without her consent.

4.             SH told the appellant that she needed to use the bathroom and he allowed her to do so, following her there. Around that time SH’s mother went to her bedroom to check on her, as was her habit. She peeped into the bathroom and saw SH on the toilet and she also saw the appellant in the bathroom. She recognized him as Isaac Gardiner, who lived next door with his wife and children. She raised an alarm and the appellant made good his escape. He however, within the hour, went to the police station and confessed to having broken into the residence. The following day, he gave a statement under caution, admitting to breaking into the house.

5.             After hearing from counsel for the Crown and counsel for the appellant (and adopting the aggravating and mitigating factors advanced by them) as well as the appellant in person, and having considered a Social Inquiry Report in respect of the appellant and a Victim Impact Report, the trial judge, on 24 June 2016, sentenced the appellant to a term of imprisonment of thirteen years. It must be mentioned at this juncture that there are no sentencing guidelines in this jurisdiction.

6.             The appellant has appealed against this sentence. The single ground advanced on his behalf is that the sentence of thirteen years imprisonment was manifestly excessive and wrong in principle. Mrs. Maroof-Misick argued that:

(a)           The learned judge failed to give the appellant sufficient credit for his guilty plea or applied too high a standard

(b)           The learned judge failed to take into account sentencing guidelines which indicate that the sentencing range for this type of offence is 9-13 years after a trial

(c)           The learned judge erred in taking into account a Victim Impact Report which related to the allegation of rape which the Crown had discontinued.

7.             She referred to the UK Sentencing Guidelines in advancing her submissions and suggested that they might be useful as a yardstick. The maximum sentence for the equivalent offence in the UK is, as in this jurisdiction, life imprisonment.

8.             Mrs. Maroof-Misick conceded that the appellant did not enter his guilty plea at the earliest reasonable opportunity, but noted that neither did he wait until he was at the door of the court to do so. She submitted that a discount of twenty-five percent was appropriate in the circumstances.

9.             In his sentencing remarks, the judge alluded to the following matters

•              The appellant had no previous convictions and had indicated his remorse;

•              The court had to take note of the fact that the appellant had initially pleaded not guilty as was his legal right; that ‘some’ credit had to be given for the change of plea and that the appellant had been informed that this would be taken into account;

•              That the offence was an extremely serious one for which the maximum sentence was life imprisonment and there was a minimum term of imprisonment (five years);

•              The appellant had been remanded in custody since the date of his arrest, 16th January 2016;

•              That because the appellant, armed with a knife, had been caught red-handed at night, in a dwelling house, near a 15 year old girl and that he had demanded sex these were aggravating features of the case and therefore, his starting point/tariff was life imprisonment.

10.          In outlining his sentencing policy, the judge certified that he compared the instant case with other cases from the Turks and Caicos Islands and neighbouring jurisdictions involving similar allegations. Unfortunately, those cases did not form part of the record. The judge correctly advised himself of the main objectives of a criminal sanction, retribution, deterrence, prevention and rehabilitation as per Desmond Baptiste et al v R [2004] ECSCJ No. 350 and remarked that the offence was serious, even for a person with no previous conviction. He made particular mention of the vulnerability of SH.

11.          On the issue of the guilty plea, the judge noted that the appellant did not plead guilty at the first available opportunity but also commented that he gave himself up to the police almost immediately after the incident and, that by pleading guilty, he had spared SH the necessity of a trial and any associated embarrassment. Despite these observations the judge found Tittle true mitigation’ on the part of the appellant, which seems at odds with his comments outlined in the following paragraph of this judgment.

12.          Having employed a “starting point” of life imprisonment, the judge reduced it to “a minimum sentence of 13 years imprisonment” starting from the date that the appellant was taken into custody. The decrease was occasioned, in the judge’s view, by the fact that the appellant had apologized to the Court and SH, surrendered to the police, pleaded guilty, albeit not at the first available opportunity, and so spared the victim from testifying, and that the was a first-time offender.

13.          In the balance, the judge found that the offence was a serious one deserving of the imposition of a deterrent sentence, to remind the appellant and others of like mind that that type of offending would not be tolerated by the Court. The judge opined that he had to treat this case as being at the higher end of the sentencing spectrum since it involved a premeditated, armed attack on a vulnerable female for the purpose of the appellant’s sexual gratification.

14.          While the judge did say that he considered the Victim Impact Report, he did not go on to particularise how this affected the exercise of his discretion in arriving at the appropriate sentence. We are therefore unable to treat with this issue more than to advise that where such is taken into consideration a court needs to express how this factor affected the eventual sentence.

15.          Ms. Williams, for the Crown submitted that the judge had correctly identified and applied all relevant factors in coming to his sentence and that we should not disturb the exercise of his discretion in this respect as the sentence was not manifestly excessive. She further submitted that in order to arrive at a just starting point the judge had to take into account and reflect on the intrinsic seriousness of the particular case and agreed with counsel for the appellant that the UK Sentencing Guidelines could provide useful guidance.

16.          She argued that the judge correctly considered that the aggravating factors, including that the appellant had been caught red-handed: that he had had a knife in the presence of a 15 year old; that he had entered a dwelling house; that the offence had been committed at night; that the appellant had desired to have sexual intercourse with a vulnerable female. The combination of these factors, she submitted, justified a higher starting point. Ms. Williams also argued that the relevant mitigating factors were all considered.

17.          Before going further, we must caution judges to be careful in identifying aggravating factors. That a person was caught red-handed in the commission of an offence can hardly be taken to be an aggravating factor.

18.          In terms of identifying “category ranges”, the UK Sentencing Guidelines may prove useful in jurisdictions without their own scheme, however judges must bear in mind that these guidelines were developed after careful study of prevailing factors in that jurisdiction at a particular point in time, so that when we turn to them for guidance, particularly in respect of the band for any offence, we need to be mindful of whether local conditions and circumstances are sufficiently similar to warrant their application. One area in which they prove extremely helpful, however is in providing lists of aggravating and mitigating factors.

19.          In the absence of guidelines in this jurisdiction, there is need for a consistent, methodical, structured approach that would lend to overall consistency in sentencing, the aim being, not uniformity of sentence but uniformity of approach. In the instant appeal, all sub-issues relevant to sentencing were amalgamated by the judge and we could get little real sense of whether the various strands of aggravating and mitigating factors were duly taken into account in the most appropriate sequence, for example what factors were covered in arriving at the judge’s “starting point”. An examination of a court’s sentencing remarks should reveal a step-by-step, transparent process that outlines how, to what extent and in what order the relevant sentencing components were applied.

20.          The UK Sentencing Guidelines provide for that jurisdiction a clear procedure to accomplish this desirable end. Where guidelines are not available, an equally transparent process must be employed. When the term “starting point” is used, there must be among local courts a universal understanding of what considerations advise its calculation. In seeking direction on the issue, the Court of Appeal of Trinidad and Tobago (a jurisdiction like this without sentencing guidelines) in the matter of Aguilera et al v The State Crim App Nos 5, 6, 7, 8 of 2015 adopted the position in R v Taukei, Ridley and Roberts [2005] NZLR 372, a decision of the New Zealand Court of Appeal which stated:

“The term “starting point” in sentencing is the sentence which is appropriate when factors relative to the offending are taken into account, but which excludes factors relative to the offender”. [emphasis ours]

21.          The starting point, therefore, considers the aggravating and mitigating factors of the offence only, i.e. the objective circumstances which relate to the gravity of the offence itself and which assist in gauging its seriousness. Examples include, but are not limited to, the use of extreme violence; premeditation; serious injury; use of weapons; multiple attackers, vulnerability of victim; home invasion. Examples of mitigating factors relevant to the offence include, but are not limited to, provocation and humane treatment of the victim during the course of the offence. Of course, it is quite possible to have an offence in which there are no particular aggravating and/or mitigating factors.

22.          Prevalence of the offence would be considered at this stage and this is one of the factors that must be treated with care before adopting the standard of a foreign jurisdiction. As an aside, we note that a sentencing judge, as a member of the community, is expected to have a good sense of which offences are prevalent ones and which are not. Perhaps, for less frequently prosecuted offences, submissions can be invited on the issue and the option is open for the prosecution to adduce statistical evidence.

23.          In arriving at the starting point it would also be advisable that a trial court look at the range of sentences previously imposed in this jurisdiction in similar matters. Regard may also be had to jurisdictions across the region where they are thought to be of assistance. When some sense of the range is arrived at, the judge would then be able to adjust his figure according to the circumstances of the particular offence and so arrive at an appropriate starting point.

24.          In the instant case, the judge gave his “starting point” as the maximum sentence of life imprisonment. In the UK Sentencing Guidelines a starting point “defines the position within a category range from which to start calculating the provisional sentence. Once the starting point is established the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range”. The judge, having found the maximum sentence to be his starting point, was obviously not adhering to the UK definition since no “category range” was identified. Were there any relevant mitigating circumstances that needed to be taken into account in arriving at the starting point and if so, were they in fact taken into consideration? We are thus at a loss to understand exactly what matters were under consideration at this stage. This is not the fault of the judge but rather the result of there being no fixed meaning of the term “starting point” in the jurisdiction.

25.          Except in the most egregious of cases, “the worst of the worst”, a maximum sentence is not likely to be an appropriate starting point. A court must always leave some headroom for worse cases. We sought the assistance of the DPP to get a sense of the range of sentences imposed by local courts for similar offences. While we were not provided with specific cases, the DPP indicated to the Court that a range of 5-7 years had been imposed on previous occasions but remarked that those were cases of some vintage. In any event, without the facts of each matter, it would be difficult to use those authorities as a guide.

26.          There is little doubt that prevailing circumstances can warrant a court arriving at a starting point significantly higher than in past cases, but where that is so the court must state clearly the reason for the deviation.

27.          Having calculated the starting point, Taukei suggests that the court then move on to make an appropriate upward or downward adjustment of the starting point which takes into account the aggravating and mitigating factors relative to the offender - these are the subjective circumstances of the offender which in turn inform the degree of his culpability. Examples of aggravating factors include the offender’s criminal history and that the offence was committed whilst on bail. Examples of mitigating factors include, but are not limited to, the appellant’s good character, rendering assistance to the authorities, youth and other personal circumstances.

28.          While the mitigating factors relevant to the offender were indeed outlined, the judge in the instant case observed that he found “little true mitigation on the part of the appellant”. This apparent contradiction occurred because the judge did not engage in a sufficiently structured process, evaluating the relevant aggravating and mitigating factors at their correct stage.

29.          Having adjusted the starting point by reference to the offender’s personal circumstances, in this matter, the judge had to move on to treat with the fact that the appellant had pleaded guilty. Despite remarking that he was taking that into consideration and that the plea had not been made at the earliest reasonable opportunity (that being only one of several circumstances that a judge must evaluate), the judge did not specify what percentage discount he was applying. There is no absolute rule as to what the discount should be, but as general guidance, an order of one-third would be an appropriate discount from the sentence which would otherwise be imposed on a contested trial: see R v. Buffrey (1993) 14 Cr. App. R. (S.) 511, CA.

30.          In the case of Du Plooy v HM Advocate (No.1) 2003 S.L.T. 1237, Lord Justice General Cullen emphasised the importance of an accused being able to clearly ascertain what discount was applied. He stated at paragraph 25:

“In our view it is desirable that, where a plea of guilty and related matters call for some allowance, the sentencer should use a distinct discount in the process of arriving at the appropriate sentence, and should state in court the extent to which he or she has discounted the sentence... [I]t is in the interests of the public as well as that of the accused that the extent to which sentences are discounted should be known. Those who represent accused persons should know, at least in general terms, the extent to which a sentence is likely to be reduced in the event of an early plea of guilty, so that they can advise the accused accordingly. Stating the discount which has been applied will also serve the purpose of providing victims and the public with a clear explanation as to how the sentences on a plea of, guilty have been arrived at....” [Emphasis ours]

31.          More recently the UK Court of Appeal dealt with discounts for guilty pleas in R v. David Caley and Ors. [2013]2Cr. App. R.(S) 47. It usefully outlined the reasons for granting a discount to a defendant who has pleaded guilty. It was held that the largest reduction of one third was to be accorded to a defendant who indicated a plea of guilty at the first reasonable opportunity.

32.          It is insufficient for a judge to simply indicate that he has taken an accused’s guilty plea into account. It is best practice when imposing sentence after a guilty plea for the judge to state the measure of the discount, if any, occasioned by the plea. A judge is also required to set out in his reasons the methodology of the discount and explain in arithmetical terms how he has dealt with the discount for the guilty plea and this is even more important where he has deviated from the one-third discount that acts as a general rule. Therefore, in the instant case, we are left in the dark as to the measure of the discount given to the appellant. We agree with Mrs Maroof-Misick that a discount in the order of twenty-five percent would be appropriate in all of the circumstances.

33.          In this case, the appellant expressed his remorse. Remorse may be sometimes demonstrated by a guilty plea but it is not necessarily exemplified by it. If after a thorough and robust evaluation by the judge, a defendant’s remorse is manifest, sentencing credit may be give to it, separate and apart from the guilty plea. We cannot determine whether the judge gave discrete sentencing credit for the appellant’s expression of remorse.

34.          The final step in calculation of an appropriate sentence would be giving credit to the appellant for time spent in pre-trial custody in relation to the matter. The trial judge noted that the appellant had been remanded in custody since the date of his arrest 16 January 2016. Under the UK Sentencing Guidelines this is also the final step, but in that jurisdiction the judge is given a limited discretion whether to give credit for time spent on remand in custody. The Criminal Justice Act 2003 (UK) provides:

240 (3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.

(4) Subsection (3) does not apply if and to the extent that—

a) rules made by the Secretary of State so provide in the case of—

(i) a remand in custody which is wholly or partly concurrent with a sentence of imprisonment, or

(ii) sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or

(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(5) Where the court gives a direction under subsection (3), it shall state in open court—

(a) the number of days for which the offender was remanded in custody, and

(b) the number of days in relation to which the direction is given.

(6) Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court—

Criminal Justice Act 2003 (c. 44) Part 12—

Sentencing Chapter 6—

Release on licence 143 (a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or

(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

35.          In the Mauritius case of Callachand and another v. The State [2008] UKPC 49 the Privy Council determined that:

“Where a person was suspected of having committed anoffence, was taken in custody and was subsequently convicted, the sentence imposed should be the sentence which was appropriate for the offence. Any time spent in custody prior to sentencing should be taken fully into account, not simply by means of a form of words but by means of an arithmetical deduction when assessing the length of the sentence that was to be served from the date of sentencing...[t]here may be unusual cases where a defendant has deliberately delayed proceedings so as to ensure that a larger proportion of his sentence is spent as a prisoner on remand. In such a case it might be appropriate not to make what would otherwise be the usual order. Similarly, a defendant who is in custody for more than one offence should not expect to be able to take advantage of time spent in custody more than once...”

36.          In Romeo Da Costa Hall v R [2011] CCJ 6(AJ) decision of the Caribbean Court of Justice, the issue was again confronted. The majority of the panel held that:

“The primary rule is that the judge should grant substantially full credit for time spent on remand in terms of years or months and must state his or her reason for not granting a full reduction or no reduction at all.”

While the Caribbean Court of Justice has no more than persuasive authority in this jurisdiction, we commend and adopt this approach. Thus in the absence of reasons to withhold, the full reduction of approximately four months is to be reckoned.

37.          Not having appreciated any significant difference between the current UK situation and that of this jurisdiction in respect of the offence of aggravated burglary, we agree with counsel for the appellant that a band of 9-13 years may be a fair average to begin consideration of the appropriate starting point for this offence. We are unable to agree with the trial judge that life imprisonment should be the starting point. In considering the circumstances relative to the offence, we agree with those identified by the trial judge as aggravating factors (except where we have made comment) and like him (though he does not explicitly say so) we find no mitigating factors. We are of the view that the circumstances of this case are particularly abhorrent because the appellant was SH’s neighbour, who could not have failed to appreciate her age and vulnerable nature, and in an unforgivable breach of trust he intended to take advantage of her for his own sexual gratification, using a knife to overbear her will. We place this offence just above the notional band and arrive at a starting point of 14 years and 6 months.

38.          Moving on to consider the aggravating and mitigating factors in respect of the appellant himself, we once again agree with those identified by the judge. We find no aggravating factors particular to the appellant and in consideration of the mitigating factors, we reduce our starting point by 2 years arriving at 12 years and 6 months.

39.          In the above premises, and applying a twenty-five per cent discount and credit for time spent in pre-trial custody, we are of the view that the appropriate sentence in the instant matter is one of 9 years imprisonment.

Disposition

40.          The appeal against sentence was therefore allowed. We quashed the sentence of the Court below and substituted a sentence of 9 years imprisonment.

E. Mottley

Justice of Appeal

H. Stollmeyer

Justice of Appeal

P. Weekes

Justice of Appeal