Sydney v The State
| Jurisdiction | Guyana |
| Judge | Cummings, J.A. |
| Judgment Date | 01 December 2008 |
| Neutral Citation | GY 2008 CA 11 |
| Docket Number | Criminal Appeal No. 9 of 2006 |
| Court | Court of Appeal (Guyana) |
| Date | 01 December 2008 |
Court of Appeal
Singh, C. (Ag.); Roy, J.A.; Cummings, J.A.
Criminal Appeal No. 9 of 2006
Mr. Hookumchand and Ms. K. Pariag for appellant.
Ms. Jo Ann Barlow for the State.
Criminal Law - Criminal Appeal — Manslaughter — Wounding with Intent — Appeal Against Severity of Sentence — Factors to be taken into account in sentencing — Plea in Mitigation — Evidence of good character — Guilty Plea — Appeal dismissed and conviction and sentence of fifteen years for the Manslaughter conviction and eight years for the Wounding with Intent conviction to run concurrently.
On 24th April 2006, Kenneth Sydney was sentenced to fifteen years and eight years respectively for the offences of manslaughter and wounding with intent after pleading guilty to both offences. It was ordered that both sentences run concurrently. He now appeals on the ground of severity sentence.
The facts of this case bear no complication. Mr. Sydney and his wife Florence (now deceased) had an argument over the fact that she had told his friends who had come to their home to go outside and wait on him. This was preceded by an earlier argument over Sydney's locking of the door of the house which prevented his wife from gaining entry, and caused her to break the locks to get into the house. Sydney was embarrassed by his wife's asking his friends to leave and so he kicked her. In the course of the argument he pulled out a gun and shot her three times. The first shot was from a distance of fifteen feet and as she lay on the floor, he went over and shot her two more times. According to the eye witness Lanita Wilson's account, “after he shot her for the first time, he went over her and continued shooting her. She was lying on the floor and he was standing besides her.”
Sydney then shot his sister-in-law Pauline George who along with her two daughters, was at his home at that time. Wilson's recount of this episode runs thus:
“My mom Pauline George started to scream followed by my sister and I. My mom Pauline George ran through the front door and my sister Alicia Wilson and I ran through the side door. My sister and I reached out on the road first and my mom was behind. Mr. Sydney (who) was behind my mom shot her to the right side of her chest; when she was sitting on the parapet he went and shot her through the left side of her face……” I was right there when he shot her in the chest and face. The accused words was “you got fuh dead, you ain't dead yet?”
From all accounts both women were defenseless when they were shot and injured. Pauline George survived but Florence Sydney succumbed to her injuries.
The post mortem performed by Dr. Nehaul Singh, the Forensic Pathologist, revealed that the caused of death was haemorrhage and shock and multiple gun shot injuries. In the doctor's findings and opinion, there were three gun shot injuries from front to back; one appears close, one contact and one from a distance.
The only ground of appeal argued was that of severity of sentence. Counsel for the appellant contended that the sentence of fifteen years for the offence of manslaughter, taking into account the circumstances of this case, is unduly severe. He contended also that the learned trial judge focused on a narrow range of factors to sentence the appellant, (which factors were noted by her in the sentencing report), and it would appear that other relevant factors were not taken into account as no mention was made of them. Counsel for the appellant further argued that if factors such as character, first offender, age of the appellant, time spent in prison, and the existence of evidence of provocation had been considered by the Trial Judge, the sentence may not have been so severe.
From looking at the trial judge's account of the matters she considered before imposing sentence on the appellant, it is evident that she considered the nature and circumstances in which the offence was committed, the degree of deliberation shown by him, and the fact that a gun was used and the crime was one of violence. The relevant transcript in her memorandum of sentence reads:
“The following factors were taken into account in sentencing:
(a) The use of a gun
(b) The intention to kill gleaned from the location of the deceased's injuries to her jaw and chest, Post Mortem finding that the deceased was shot at close range and from a distance.
(c) The high level of cruelty which was displayed. Evidence of eyewitness Lanita Wilson that the accused kicked the deceased before shooting her.
(d) The firing of the gun in the presence of several persons who were nearby.”
Does it mean that by highlighting certain factors to the exclusion of others, the trial judge did not take into account other factors which ought to have been taken? Counsel for the prosecution has submitted that other factors such as age, character, first time offender and time spent in prison would have been taken into account by the trial judge. She urged this view because immediately before sentencing, the Probation Report was read into evidence and a plea of mitigation was made on behalf of the appellant. She argued that the absence of the factors complained of by the defence was of no moment as they were present in the Probation Report and mitigation plea and would have been in the judge's consideration.
In fixing sentence for any particular offence, the matters taken into account by a trial judge must inter alia, include the nature and the circumstance in which the offence was committed, the degree of deliberation shown by the offender, whether or the fact that the crime was a highly organized one in which a number of offenders took part, the provocation which the offender has received, whether the crime is one of violence, the prevalence of a particular offence, the antecedents of the offender, his age and character, the fact that he is a danger to the public, and any recommendation which the jury may have made. (See 11(2) Halsburys Laws of England (4th ed. reissue) Paragraph 1189). It must be stated that this list is by no means exhaustive.
As a court of review, having regard to the sequence of events and the record before us, we are of the view that the trial judge took all the relevant facts into consideration before sentencing the appellant. The significance of the factors urged upon us, would not have been lost on the trial judge because they were placed before her immediately before sentence. In addition, sentence would have been passed on the basis of the prosecution's summary or statement of facts of the offence after the change of plea by the appellant and the evidence of the witnesses taken in the course of the trial prior to the change of plea. If the appellant did not accept the prosecution's account of the facts, being ably represented by counsel, his counsel would have brought it to the attention of the trial judge.
Further, a plea of mitigation was made on the appellant's behalf and the purpose that serves is well known. The plea of mitigation makes known to the court any aspects of the case which tend to reduce its gravity, whether this relates to the precise facts of the offence, the offender's individual circumstances, his attitude to the offence, any feelings of remorse, or other mitigating factors. To use the words of Martin Wasik, in Emmins on Sentencing, 4th edition p. 100, it seeks ‘perfectly properly to influence the court towards the most lenient disposal’. Therefore all the relevant factors would have been placed before the trial judge and the absence of any record of all the factors or the presence of only some of the factors is not indicative of non-consideration of the relevant materials. The sentence would have been passed with full appreciation of all the matters placed before the court.
There is no obligation on a trial judge to state reasons for sentencing. (Even if there was an obligation, so long as the trial judge acts in accordance with legal principles, non-compliance to state reason would not invalidate a sentence.)
In any event, even if the trial judge did not take all the relevant factors into consideration, it does not render the sentence imposed excessive or wrong in principle. In Kissoon Wazir All v. The Queen [1968] G.L.R. 201, Luckhoo, J.A. asserted that if the sentence appears to be proper and appropriate, it matters not then that something was taken into account which ought not to have been, or that something was not taken into account which ought to have been.
Relying on the case of Paria v. the State (2003) 62 W.I.R. 471, counsel for the appellant argued that the trial judge failed to advert her mind to the propensity of the appellant to commit such a crime unless there was some aggravating factor which had provoked him, causing him to lose control of himself. Paria's case concerns the direction to a jury in a summing up as to the good character of an accused person. In that case the Privy Council held that where there is evidence of the good character of a defendant, the judge...
To continue reading
Request your trial