August v The Queen

• Jurisdiction: Belize
• Judge: Hafiz-Bertram, J.A.
• Judgment Date: 04 November 2016
• Neutral Citation: BZ 2016 CA 15
• Docket Number: Criminal Appeal No. 22 of 2012
• Court: Court of Appeal (Belize)
• Date: 04 November 2016

Court of Appeal

Sosa, P.; Awich, J.A.; Hafiz Bertram, J.A.

Criminal Appeal No. 22 of 2012

August

and

The Queen

Appearances:

E Courtenay SC along with A Sylvester and I Swift for the appellant

C Vidal SC, Director of Public Prosecutions, along with P Staine and S Lovell for the respondent

Criminal Appeal - Murder — Appeal against conviction and sentence — Principle of proportionality — Whether the sentence was grossly disproportionate — Whether the judge erred in failing to make a good character direction — Principles to be applied to good character directions — Whether breach of natural justice — Whether the lack of propensity direction affected the fairness of the appellant's trial and safety of conviction — Whether the minimum mandatory sentence of life imprisonment without parole violates section 7 of the Constitution — Whether the circumstances of the case required the imposition of a life sentence — Whether the sentence was irreducible — Prerogative of mercy — Section 106 of the Criminal Code — Section 6, 7 and 52 of the Constitution — Belize Prison Act, Rules 266 and 267.

Hafiz-Bertram, J.A.

INTRODUCTION

1 On 21 November 2012, Gregory August (‘the appellant’) was convicted of murder following a jury trial before Lucas J. He was sentenced on 26 November 2012 to life imprisonment which took effect from 26 May 2009. The appellant appealed to the Court of Appeal and the appeal was heard on 13 March 2014. The Court delivered its judgment on 5 February 2015, dismissing the appeal. The conviction of the appellant for the offence of murder and the sentence of life imprisonment was affirmed.

2 On 20 April 2015, the Caribbean Court of Justice (‘the CCJ’) granted the appellant special leave to appeal against the decision of the Court of Appeal, on a number of grounds, two of which were not argued before the Court of Appeal. The CCJ stayed the appeal pending the hearing of the said two grounds by the Court of Appeal. In an order dated 20 April 2015, the CCJ said that it was satisfied that “the proposed appeal raises issues of great general and public importance regarding the constitutionality of the mandatory minimum sentence of life in prison without parole and the relevance and/or sufficiency of good character directions in a criminal trial generally and in particular in the instant proceedings.” The CCJ considered that these two issues ought ideally first to be adjudicated upon by the Court of Appeal and therefore, ordered, by consent, at paragraph 4, the following:

• “4. This matter be remitted to the Court of Appeal for expeditious hearing on the following two issues:–

  • a) The constitutional issue which has been raised before this Court but not argued before the Court of Appeal; and

  • b) The good character directions which were not argued before the Court of Appeal.”

3 The two grounds that were remitted as framed by the appellant before the CCJ are: (1) the trial judge erred in failing to make a good character direction; and (2) The minimum mandatory sentence of life imprisonment without parole for murder violates section 7 of the Constitution. At the hearing before the Court of Appeal, the appellant sought leave to include section 6 of the Constitution under the constitutional ground to which there was no objection by the Director of Public Prosecutions (“the Director”). The Court granted leave to add section 6 of the Constitution under the said ground.

THE FACTS

4 The facts as shown by the summation of the trial judge is that the appellant was indicted on 22 September 2011 for murder contrary to section 117 read along with section 106(1) of the Criminal Code, Chapter 101 of the Substantive Laws of Belize (Revised Edition) 2003. The particulars of the crime is that the appellant and another, on the 23 May 2009, at 8 Miles along the Western Highway, in the Belize District, murdered Alvin Robinson (‘the deceased’). The deceased was 73 years old and physically challenged and blind in the left eye. He was stabbed in his humble abode nine times in the face and neck. Dr. Mario Estrada Bran who conducted the post mortem gave evidence that the deceased had nine external stab wounds. One was on the chin, one on the right cheek, the others behind the ear up to the posterior triangle of the neck. Dr. Estrada Bran said that the smallest stab was 5 cm and the largest was 7 ¹/₂ cm. The stab wound to the cheek produced an irregular fracture to the lower portion of the mandible, close to the ear. “One of the stab wounds on the neck took the direction backwards to forwards, slightly upwards to downwards and right to left and distracting vessels of the area, passing through to the oval cavity where its trajectory end to a depth of 5 1/2 inches…The cause of death was due to bronchial expiration due to multiple stab wounds to the neck and face.”

5 The case against the appellant depended to a large extent on the correctness of the identification of him by a witness, Terrick Garbutt, which the appellant alleged to be mistaken. This witness, however, was not an eyewitness to the killing of the deceased and there was no eyewitness to the killing. The Crown relied on circumstantial evidence, namely, a Nike tennis shoe print and blood stains on the said tennis shoe and a white T - shirt which they said connected the appellant to the scene and consequently caused the death of the deceased. The trial judge pointed out the inconsistencies in the shoe print evidence and also that the blood analysis did not assist the Crown since it could not be proven beyond a reasonable doubt that the blood was that of the deceased.

6 The appellant gave a dock statement and gave a defence of alibi. He admitted that he (with two other friends) was at the yard where the deceased resided and the purpose of going there was to buy marijuana. Thereafter he went home, received a phone call from his mother who lived in New York, and after slept until morning.

THE RELEVANT STATUTORY PROVISIONS

THE BELIZE CONSTITUTION

7 Section 6 of the Belize Constitution so far as relevant provides:

• “6. (1) All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

• (2) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

8 Section 7 of the Belize Constitution so far as relevant provides:

• “7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

CRIMINAL CODE

9 Section 106 of the Criminal Code of Belize, so far as relevant provides:

• “106.-(1) Every person who commits murder shall suffer death.

  Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea for mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life.

• (3) For the purpose of this section-

  “Class A murder” means:–

  • (a) any murder committed in the course or furtherance or theft;

  • (b) any murder by shooting or by causing an explosion;

  • (c) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;

  • (d) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;

  • (e) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting; or

  • (f) any murder which is related to illegal drugs or criminal gang activity;

“Class B murder” means any murder which is not a Class A murder.”

THE BELIZE PRISONS ACT

10 A Parole Board is established pursuant to Rule 265 of the Belize Prisons Act, Chapter 139. Rule 266 (1) (a) of the subsidiary laws provides for the function of the Parole Board. It states:

• “266 (1) The Board shall have the power to deal with and to decide as to –

• (a) The release on parole of any offender eligible for parole under the Rules; …”

11 Rule 267 provides for the eligibility for parole consideration. Rule 267 (1) provides:

• “267 (1) Every offender other than an offender sentenced to death, shall be eligible for consideration for release on parole upon the expiry of the following periods from the date of his reception in a prison after sentencing:

  • (a) 10 years, in the case of every prisoner undergoing imprisonment for life;

  • (b) After the expiry of one half of the term of the sentence of imprisonment, in the case of every prisoner undergoing any other sentence.

• 267 (8) Notwithstanding sub-rule (1) an offender convicted of murder shall not be eligible for parole under these Rules.”

PREROGATIVE OF MERCY

12 Section 52 of the Belize Constitution provides:

• “52. – (1) The Governor General may –

  • (d) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.

  • (2) The powers of the Governor General under subsection (1) of this section shall be exercised by him in accordance with the advice of the Belize Advisory Council.”

13 The Belize Advisory Council (Procedure) Rules made pursuant to the Belize Constitution at Rule 14(1) provides for the procedure in non-capital cases for prerogative of mercy. It provides:

• “14. (1) Every person in a non-capital case who desires the Governor-General in special or exceptional circumstances to consider the exercise of the prerogative of mercy in his...