Continuing arguments in his client’s appeal to a murder conviction and a 57-year sentence, attorney Ronald Burch-Smith on Wednesday submitted that trial judge Navindra Singh’s sentencing system is “arbitrary, unfair and unconstitutional.”
State attorney Diana Kaulesar-O’Brien, who is representing the chambers of the Director of Public Prosecutions, against which the appeal was brought, vehemently argued, however, that there exists no law which the judge’s sentencing offends.
Representing murder convict Quaison Jones, who was found guilty by a jury in 2014 for the murder of fellow fish cleaner, Marlon Greene, Burch-Smith is contending that Justice Singh’s method of sentencing lacks consistency and grounding in law.
At the conclusion of a trial before the High Court in 2014, Justice Singh had imposed the 57-year sentence on Jones, called ‘Blondie,’ who subsequently appealed both the conviction and sentence, the latter of which he argues is excessive.
As Justice Singh commonly does for persons convicted of murder, he commenced Jones’ sentence at 60 years, from which he deducted three years for the time he had spent on remand awaiting trial.
Stating thereafter that he had found no circumstances to mitigate the sentence, no further deductions were made.
In submissions before acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory at the Court of Appeal on Wednesday afternoon, Burch-Smith said that while he had no statistics available to present, it was widely known that Justice Singh imposes sentences using a system that he personally came up with.
According to counsel, the methodology is far removed from that generally used by other High Court judges when also imposing sentence for capital convictions, which he said are far lower than those imposed by Justice Singh.
The lawyer took issue, also, with what he said was a lack of consistency in the sentencing structure Justice Singh employs when handing down sentences in some matters as opposed to others.
It was at this point that Chancellor Cummings-Edwards enquired from Burch-Smith whether judges did not have a discretion to sentence on a case by case basis, given the particular circumstances before them.
While counsel did answer in the affirmative, he remained resolute that there was no uniformity in the sentences handed down by Justice Singh, while emphasising that the method he uses is not supported in law.
Consistency in sentencing
Apart from that, Burch-Smith said that contrary to the trial judge’s finding, there were mitigating circumstances other than remission for time spent on remand, which could have been considered for a lower sentence.
He said that mitigation was not an act of condoning the crime, but rather, it aids the court in finding the “appropriate sentence” in the particular circumstances.
Referencing case law, the lawyer said that the Caribbean Court of Justice (CCJ) has, in rulings, said that there should be consistency in sentencing.
To bolster his argument, Burch-Smith referenced the case of Angelique Williams, who had been sentenced by Justice Singh to a mere eight years behind bars in April of last year and was released on parole just over a month ago for the death of her pregnant best friend, whom she fatally stabbed some 22 times.
After enquiring the particular circumstances under which that sentence would have been given, Burch-smith agreed with the appellate court that indeed Williams had thrown herself at the mercy of the court and in an apparent remorseful plea in mitigation by her lawyer, she copped to the lesser charge of manslaughter after being initially arraigned for murder.
Notwithstanding that state of affairs, however, Burch-Smith argued that when one looks at the manner in which the two crimes were carried out, 57 years against his client still remains excessive.
On this point, the lawyer said that Greene died from a single stab wound.
Pathologist Dr. Nehaul Singh had testified that Greene’s jugular vein and windpipe were severed. He had also told the court that Greene died as a result of haemorrhage and shock due to multiple stab wounds.
Burch-Smith argued that a sentence of seven to ten years would be appropriate for his client if the court were mindful of substituting the murder conviction for that of manslaughter.
Burch-Smith is opposed to his client being retried, arguing that it would result in a delay before he is afforded another trial.
Unfettered discretion
For her part, however, Kaulesar-O’Brien said that “seeking uniformity in sentence is not something that courts consider wise, but rather uniformity in approach.”
She said that there exists no law, constitutional or otherwise, which says that a judge is to impose a particular sentence. She said that what such a law would essentially be doing is fettering the discretion which judges have in sentencing.
She said that contrary to what Burch-Smith has advanced, a mathematical formula is not used by the judge for sentencing. Citing case law authority, she said, “in the calculation of what constitutes a starting point, a strictly mathematical approach cannot be countenanced. A mathematical approximation of all the relevant factors, may on the face of it demonstrate structure and transparency, but it operates as an unacceptable fetter on the judge’s sentencing discretion.”
Meanwhile, as regards defence counsel’s suggestion that his client be sentenced to seven to ten years if the court was mindful of substituting the murder conviction for that of manslaughter, the prosecutor said, “No way.”
She said that this cannot be possible even where there is a substitution of conviction.
Against this background, Kaulesar-O’Brien said it must be borne in mind that Jones had gone through a contested trial, at the end of which he was convicted of the capital offence by a jury of his peers.
This, she noted, is by contrast vastly different from the case where someone is charged with murder and throws themselves at the mercy of the court and admits guilt on the lesser charge of manslaughter.
In recent weeks, a number of appeals have been coming up for hearing in which the appellants are contesting what they term the “excessive” sentences imposed by Justice Singh.
They have been seeking reductions from the Court of Appeal and even the overturning of their convictions.
Kaulesar-O’Brien next addressed the issue raised by Burch-Smith at the first appellate hearing when he argued that Justice Singh had not properly put his client’s case of self defence to the jury, in accordance with the law.
In the circumstances, Burch-Smith argued that this amounted to a misdirection to the jury on the judge’s part.
The prosecutor said, however, that neither the defences of self defence nor accident arose as counsel sought to contend, while noting that it was for this reason that they were not put to the jury.
Further, she said that Justice Singh had explained to the jury that neither of the defences arose and as therefore they did not have to be considered although she said that directions were given by the judge to the jury on the partial defence of provocation which arose.
Referencing the evidence adduced at trial, Kaulesar-O’Brien said that at the time Greene was stabbed, he was lying on his back. In the circumstance, she noted that Jones, therefore, could not have been in any imminent danger from Greene.
The prosecutor also strongly contended that if Burch-Smith is of the view that his client’s conviction is not whole, then a retrial is the remedy. She said that there can be no complaints about possible delay as the appellate court has the power to order that the matter be retried in the current criminal assizes or the very next scheduled one which commences in January of next year.
“It would be in the interest of justice to have a retrial,” the prosecutor said.
The chancellor has announced that the court will give its decision at 11.30am on December 20th.
In June of 2014, Jones was found guilty of the murder of Marlon Greene but had maintained that it was not he who had committed the crime.
Leading his defence in unsworn statement during the High Court trial, Jones had said that he did not kill Greene and that he never had any problems with him.
The court had, however, heard from a witness that the two men had an argument at the Meadowbank wharf, during which Greene was stabbed multiple times. He subsequently died from the injuries inflicted.
