ccj.org[2023] CCJ 1 (AJ) GY IN THE CARIBBEAN COURT OF JUSTICE APPELLATE JURISDICTION ON APPEAL FROM THE COURT OF APPEAL OF GUYANA CCJ Appeal No GYCR2022/001 GY Criminal Appeal No 45 of 2015 BETWEEN ORWIN HINDS APPELLANT AND THE STATE RESPONDENT And CCJ Appeal No GYCR2022/002 GY Criminal Appeal No 47 of 2015 BETWEEN CLEON HINDS APPELLANT AND THE STATE RESPONDENT [Heard together on 11 October 2022] Before The Honourable: Mr Justice Saunders, PCCJ Mr Justice Wit, JCCJ Mme Justice Rajnauth-Lee, JCCJ Mr Justice Barrow, JCCJ Mr Justice Burgess, JCCJ Appearances Mr Arudranauth Gossai for the Appellants Mrs Teshana Lake and Ms Diana O’Brien for the Respondent Criminal Law – Evidence – Confession – Voluntariness of statements – Nothing to undermine probative value and weight of confessions. Criminal Law – Sentence – Life imprisonment – Murder – Class of ‘worst murders’ – Appellants convicted of murder and sentenced to 81 years imprisonment without eligibility for parole before 45 years – Court of Appeal reduced sentences to 50 years – Criminal Law Offences Act, Cap 8:01 ss 100(A)(1)(a), 100(A)(3)(a) – Sentence of life imprisonment – Parole eligibility after serving not less than 20 years – Court of Appeal had no power to impose potentially harsher sentence – Court of Appeal failed to set minimum period to be served before eligibility for parole. SUMMARY Brothers, Orwin Hinds and Cleon Hinds were convicted for the murder of Clementine Fiedtkou-Parris for the payment of money, contrary to s 100(1)(d) of the Criminal Law (Offences) Act (‘the Act’). The Trial Court imposed sentences of 81 years without eligibility for parole before 45 years. On appeal, the Court of Appeal reduced those sentences to 50 years. The brothers then appealed to this Court. On conclusion of the hearing, the Court dismissed the appellants’ appeals against conviction for murder but reserved its decision on the appeals against the sentences imposed by the Court of Appeal. The Court in a judgment authored by Barrow JCCJ now delivers its reasons for its decision to uphold the appellants’ convictions and its judgment on their appeals against sentencing. ... On the issue of sentencing, the Court first noted that the murder fell into the class of the worst murders under s 100(1) of the Act. These are far more violative of the society’s peace and order and they are subject to the special sentencing regime set out in s 100A(1)(a). That section provides that a convicted person shall be sentenced to death or imprisonment for life. Where a sentence of life imprisonment is imposed, s 100A(3) states that the Court shall specify a period which the person should serve before becoming eligible for parole. In the case of the gravest murders, the period shall be not less than 20 years, and in the case of other murders, the period should be not less than 15 years. The questions of whether s 100A(1)(a) creates a mandatory sentence and whether, if it does, such a sentence is constitutionally compliant, were not raised and therefore the Court did not pronounce upon them. ... The appellants’ argument was that the Court of Appeal erred in law in failing to impose ‘the sentence as prescribed by s 100A(1)(a) of the Criminal Law (Offences) Act’. Counsel’s view was that Alleyne v R established that a sentence of life imprisonment amounted to a term of years of imprisonment. The thinking was that, since life in the context of that case was held to be a term of twenty-five years, the sentencing court ought to have imposed that sentence. The Court however stated that it must be remembered that life imprisonment means a sentence of imprisonment for life and the convicted person has no right to be released. The fact that the parole system can result in the convicted person being released and not dying in prison did not alter that duration of the life sentence. The other dimension of counsel’s argument was that the sentence of imprisonment for 50 years was, in practice, a more severe sentence than the maximum sentence of imprisonment for life. The Court found that a sentencing court has no power to impose a sentence that is intended to be more severe than life imprisonment, which is the maximum sentence. The previous exposition produced the following important conclusions in respect of the class of murder in question: 1. a sentence of life imprisonment is the maximum sentence; 2. it carries with it a statutory entitlement to be considered for eligibility for parole; 3. that eligibility arises after a period of 20 years (in Guyana) or such later period as a court may fix; and 4. that a court has no power to impose a sentence of 50 years imprisonment (or any determinate period) that would exceed the sentence fixed by the Act. In this case, setting a minimum period that must be served before there could be eligibility for parole was therefore a mandatory obligation and one which the Court of Appeal did not fulfil. Also, as noted in August v R, it is an exercise which satisfies the penological objectives of punishment and deterrence. The Court found that the period of eligibility for parole should be set at the minimum of 20 years for both appellants and mitigating factors, for example Cleon’s minor role in the killing, could not operate to reduce that. The Court was therefore satisfied that the sentences of 50 years imprisonment imposed by the Court of Appeal must be set aside. Each appellant is sentenced to imprisonment for life and shall become eligible to be considered for parole after a period of 20 years imprisonment including the time spent on remand awaiting trial. ... JUDGMENT of The Honourable Mr Justice Saunders, President and The Honourable Justices Wit, Rajnauth-Lee, Barrow and Burgess Delivered by The Honourable Mr Justice Barrow on 17 January 2023 JUDGMENT OF THE HONOURABLE MR JUSTICE BARROW, JCCJ: Introduction [1] On the conclusion of the hearing of these two appeals by brothers Orwin and Cleon Hinds, the Court was satisfied that it should dismiss the appeals against conviction for murder without having heard oral submissions on conviction from the State. The Court reserved its decision on the appeals against the sentences of imprisonment for 50 years that the Court of Appeal imposed, in substitution for the sentences imposed by the trial judge of imprisonment for 81 years, without eligibility for parole before 45 years. We now deliver brief reasons for our decision to dismiss the appeal against convictions and our decision and reasons on the appeals against sentences. ... [15] Instead, we propose to determine the appeals against sentence on the basis that the sentence of life imprisonment (regardless of whether mandatory or discretionary) was specified in the Act, and intended to operate, as the maximum penalty. It was not within the power or discretion of the court to impose a supposedly or potentially harsher sentence of imprisonment for 81 years or 50 years. Without prejudice to the manner in which the two questions posed above should be interpreted or answered, it seems to us that if a court considers that the prisoner is deserving of as harsh a punishment as 81 years, the court should instead impose a life sentence. The 3 See the observation at [28] below. legislature considered that life imprisonment was a harsher penalty than any term of years and we see no basis for considering to the contrary. Subject to parole considerations life can only mean what it says. ... [20] The appellants’ contention that the Court of Appeal erred in law in not imposing the sentence of life imprisonment contains the further dimension that in practical terms, the sentence of imprisonment for 50 years was a more severe sentence than a sentence of imprisonment for life, because realistically that latter sentence could see them ... [23] The benefit to the present discussion of that exposition is that it supports the argument that a sentence of life imprisonment is a maximum sentence; that it carries 9 Cap 141. 10 [2018] CCJ 07 (AJ) (BZ), [2018] 3 LRC 552. 11 Alleyne (n 5) at [51]. 12 As noted, s 100(3) of the Criminal Law (Offences) Act obliges the sentencing court to do so and stipulates a minimum period. 13 Alleyne (n 5) at [52]. 14 (Trinidad and Tobago CA, 25 May 2005). 15 Alleyne (n 5) at [52]. with it a statutory entitlement to be considered for eligibility for parole; that eligibility to be considered for parole arises after a period of 20 years (in Guyana) or such later period as a court may fix; and that a court has no power to impose a sentence of 50 years imprisonment (or any determinate period) with a view that it would have the practical effect of exceeding the sentence fixed by the Act. Duties of the Sentencing Judge [24] As mentioned above at [12], when a court sentences a person convicted of murder of the worst case to imprisonment for life, s 100A(3)(a) of the Act provides that ‘… the court shall specify a period, being not less than twenty years, which that person must serve before becoming eligible for parole’. It is a mandatory obligation. Unfortunately, the Court of Appeal did not specify the period of eligibility in this case. [25] The Court noted in August that the purpose of the legislation fixing a minimum period that must be served before there could be eligibility for parole was to satisfy the penological objectives of punishment and deterrence. 16 By so providing, the legislature seeks to meet the society’s sense of justice and thereby to maintain trust and confidence in the law. But the conferral of discretion on the court to determine the period after which parole may be granted also fulfils the society’s humanitarian duty to provide for persons who have been rehabilitated, to be returned to their place in the society. The period of imprisonment that must be served before eligibility for parole is known as the ‘punitive period’ and the period that follows is known as the ‘security’ or ‘preventative’ period, and it is during this latter period that it may be decided whether there should be continued detention or release on parole. 17 Therefore, it was a duty of fundamental importance, both to the convicted persons and the society, that the Court of Appeal failed to perform in this case. [26] The obligation on the court to judicially determine the period before there is eligibility for parole means that it may be still necessary for a trial court to hold a 16 August (n 10) at [71] – [83]. 17 ibid,at [74]. sentencing hearing, the importance of which has been emphasised in the Court’s jurisprudence, 18 so that a fair decision may be made by the judge of aggravating and mitigating factors, in relation both to the offender and the commission of the offence. The judge would need to consider on such a hearing, as well, the relative moral turpitude of multiple offenders such as the orchestrator, the trigger man, the active assistants, and non-participants in the actual execution of the crime, as well as indications of reticence and remorse, and the like. 19 Following such an exercise, a trial judge may find it appropriate to impose the statutory minimum period of eligibility for parole in the case of one offender and to impose a higher period in the case of another. ... The Present Pass [27] It is clear that the Court of Appeal erred in law in imposing a sentence for a term of 50 years without specifying the period, being not less than 20 years, after which the appellants shall become eligible for parole, as mandated by s 100A(3) of the Act. In sentencing cases, usually the concern of the court is to decide by reference to a maximum sentence, the range of sentence to impose in a particular case. In this appeal, the concern is for the Court to fix the minimum period that must be served by the appellants before they should be eligible to be considered for parole. The considerations are far less in doing so, in a case such as the present, where the minimum period of eligibility is fixed by law because the mitigating factors cannot operate to reduce the minimum period of eligibility. The Court has heard no arguments on this aspect and therefore, this view would be subject to reconsideration in a future case but it would seem, the period of eligibility in this case should be set at the minimum of 20 years for both appellants. It may be, had it been legally permissible, that Cleon, the brother who did not physically participate in the execution of the murder, could have been considered for eligibility for parole before 20 years, but that consideration is precluded by law. It may also be considered that Orwin, who physically participated by preventing any possible help 18 See Pompey v DPP [2020] CCJ 7 (AJ) GY; Ramcharran v DPP [2022] CCJ 4 (AJ) GY; and Small v DPP [2022] CCJ 14 (AJ) GY. 19 See s 100(3)(b) of the Criminal Law (Offences) Act where the legislation expressly requires, where there are multiple participants, but in a case other than one such as the present case of murder for pay, for the actual killer to be sentenced to imprisonment for life and for another convicted person to be sentenced to imprisonment for life or a term of years in the discretion of the court. being given to the victim by her brother, is more guilty than his sibling but this in itself is no reason to subject him to a greater period of imprisonment before eligibility for parole. The 20-year period before eligibility for parole in a worst murder, compared to the 15-year period in a murder that is not one of the worst, indicates that Orwin’s actual participation does not require any heightened severity beyond that greater severity in eligibility for parole. ... [29] It is regrettable that this Court is unable to understand the divergent approach taken by sentencing courts, but such an examination may properly be regarded as academic in this appeal, where the error of law by the Court of Appeal was in purporting to or seeking to exceed the maximum sentence provided by law, as well as failing to specify a minimum period before eligibility for parole. The inconsequentiality, for this case, of the divergence in sentencing is more so because this Court is satisfied that the sentence of life imprisonment is the right sentence to impose, based on all appropriate considerations in imposing a life sentence, as stated by Saunders PCCJ in Alleyne 20 and based as well on the fact that, paradoxically, it is the sentence urged by the appellants, as was also suggested in that appeal. 21 20 Alleyne (n 5) at [79]-[80]. 21 ibid at [83]. Disposal [30] The decision of this Court, therefore, is that the appeals against conviction are dismissed and the appeals against sentence are allowed. The sentences of 50 years’ imprisonment are set aside, and each appellant is sentenced to imprisonment for life, and shall become eligible to be considered for parole after a period of 20 years imprisonment including the time spent on remand awaiting trial.