Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 32 of 2015

Forbes v. Regina (CR-AP 32 of 2015) [2017] TCACA 6 (01 December 2017);

Law report citations
Media neutral citation
[2017] TCACA 6
Coram
Mottley, P
Forte, JA
Adderley, JA

IN THE COURT OF APPEAL TURKS AND CAICOS ISLANDS CRIMINAL DIVISION CR-AP 32/2015

BETWEEN:

EMANJOE FORBES

APPELLANT

AND:

REGINA RESPONDENT

Before:

The Honorable Mr. Justice Mottley, President

The Honorable Mr. Justice Forte, Justice of Appeal

The Honorable Mr. Justice Adderley, Justice of Appeal

6th June 2017; 1st December 2017

Lara Maroof for the Appellant

Clement F. Joseph for the Respondent

Mottley, P

1.             Following a trial before Mr. Justice Shuster and a jury, the appellant was convicted of unlawfully and maliciously causing grievous bodily harm on Andrew Parker with intent. He was sentenced to a term of imprisonment of 10 years. He now appeals that sentence.

2.             Andrew Parker testified that he had known the appellant for approximately 10-15 years. During the early hours of Saturday 27 December 2015, he was at a party at Club 2005 in the downtown area of Providenciales. While standing on the outside of the club, Parker turned around and saw the appellant approach him from the back. Parker said the appellant caught him “in the belly” with a knife. At the time when the appellant did this he said to Parker, “I kill you”. In trying to fend off further attack, Parker sustained further injuries to his left and right arms. The medical evidence showed that Parker received injuries to his liver, diaphragm and appendix. He remained in hospital for a month and was off work for three months. Up to 1.75-2 litres of blood was drained from Parker's abdominal area. The doctor expressed the opinion that force was required to cause the injuries as the injuries were deep.

3.             The appellant had eleven previous convictions including grievous bodily harm and wounding. The judge indicated in the circumstances that he did not require a Social Enquiry Report. The judge indicated that his starting point was 12 years which he reduced by two years as the appellant had stated that he was sorry for what had taken place; in addition, the judge took into consideration that the appellant was the father of 3 children.

4.             The judge indicated that he considered the offence to be very serious. He also took into consideration the small size of the victim and the fact that he received three separate injuries indicating that the appellant stabbed Parker three times. The judge referred to the fact that the grievous bodily harm was caused to Parker at night and was an unprovoked violent attack. The judge reminded the appellant that he would be failing in his duty if he did not send a clear message to others that violence involving knives on the streets in TCI will not be tolerated. The sentence was intended to be a deterrent sentence; in so doing he applied the law as set out in R v Cunningham. Had the appellant pleaded guilty, the judge said the appellant would have received a substantial discount resulting in the imposition of a sentence of between 5-6 years.

5.             Counsel for the appellant submitted that the sentence of 10 years imposed by the judge was manifestly excessive. Counsel accepted that the offence for which he was convicted was serious and aggravated by the use of a weapon. However, counsel contended that the sentence was manifestly excessive, having regard to the sentences which have been passed for similar offences in TCI. Counsel attached a summary of those cases.

6.             Of the cases listed in the memo submitted by counsel for the appellant, we have found 3 cases to be of some but limited assistance. It should be noted that these are all sentences imposed in the Supreme Court. We were not referred to any case which was reviewed by the Court of Appeal on review.

7.             In R v Evan Valeri - CR85/13, the defendant pleaded guilty of inflicting grievous bodily harm with intent. It was alleged that he struck the victim in his head causing bleeding to the brain. He was sentenced to four years imprisonment. In R v Dentery Penn, the defendant was convicted of causing grievous bodily harm with intent. It was alleged that he stabbed a man with a knife. After trial, he was sentenced to 5 years imprisonment. In R v Clifford Gibson and Dion Sanders, the defendants were convicted for causing grievous bodily harm with intent. The injury was inflicted by using a cutlass. After trial, Gibson was sentenced to 4 years imprisonment while Sanders was sentenced to 5 years.

8.             Counsel for the Crown submitted that the sentence was not manifestly excessive. He contended that because the aggravating circumstances, the sentence was lenient having regard to the appellant's propensity for violence towards others.

9.             The judge indicated that his starting point was 12 years. However, he did not state the basis of his starting point. It would appear that the judge, in using a starting point of 12 years, was adopting the sentencing guidelines of England. The Court is not aware that these guidelines have been accepted by the Chief Justice and all the judges of the Supreme Court. It cannot be correct that some judges should adopt these guidelines and others do not. Clearly, it cannot be right that a defendant is subjected to these guidelines when appearing before a particular judge and another not subjected to them when appearing before a different judge.

10.          If it is that all defendants should be subject to the same range of sentences, then this is a matter for the Chief Justice after consultation with the judges of the Supreme Court to issue definitive sentencing guidelines.

11.          The Court has had the opportunity of reading in draft the judgment of Weekes JA in Isaacs Gardiner v Regina, Criminal Appeal No.16 of 2016 which was heard in February 2017 and the reasons for the decision is being handed down on 1 December 2017.

12.          The Court agrees with and adopts the observations contains in paras 18,19 and 20 of that judgment as it relates to the issue of “category ranges” and the use of the United Kingdom Sentences Guidelines.

13.          It would appear from the range of sentences in the cases stated above that it has not been the practice to use a term of imprisonment of 12 years as the starting point. In Evans Valerie the sentence was imposed after a guilty plea. Even allowing for a discount of 25% to 30%, (the Court not being aware of the aggravating circumstances) it is clear that the Court could not have used 12 years as a starting point. Dentery Penn and Dion Sander were both sentenced to 5 years after trial. The Court is not aware of what, if any, were the aggravating feature in these cases. It is however clear that, in arriving at a sentence of 5 years, the Court could not have used a starting point of 12 years.

14.          The appellant Forbes has 11 previous convictions including conviction for grievous bodily harm and wounding. The jury accepted that the appellant stabbed Parker in what may be described as an unprovoked attack. However, having regard to the cases mentioned above, the Court is of the view that the sentence of 10 years is manifestly excessive and ought to be reduced. In the opinion of the Court, the sentence should be reduced to 8. Consequently, the appeal against sentence is allowed. The sentence of 10 years imprisonment is quashed and a sentence of 8 years imprisonment is substituted.

Mottley P

Forte JA

Adderley JA