The sentence of the court is that the defendant is sentenced to 3 years’ imprisonment which shall be suspended for a period of 3 years.
This was the ruling given by high court judge Shawn Innocent in a rape case involving Adriel Charles who was represented by defense attorney Arley Gill.
Charles was first jointly indicted with another male for the offence of rape on an indictment dated 27th August 2018 and filed 30th August 2018 in relation to events that occurred on 24th July 2017.
On his arraignment on 2nd November 2018 he pleaded not guilty to the subject offence.
In his ruling Justice Innocent said it appears from the evidence of the case that somewhere in the course of the proceedings that ensued on or about 22nd July 2022, Charles’ co-defendant entered a plea of guilty and was sentenced.
Charles was brought before the judge on a subsequent indictment dated 7th December 2022 and filed on 8th December 2022.
“It appears that the defendant had maintained his plea of not guilty until the matter came on for hearing on 8th March 2024. On even date the defendant was re-arraigned and he changed his plea to guilty to the single count of rape contained in the said indictment. This plea was accepted by the Crown,” the judge noted.
In his ruling, Justice Innocent said: “The sentence of 3 years’ imprisonment herein shall not take effect unless, during the period of 3 years from the date sentence is pronounced, the defendant commits another offence punishable with imprisonment and thereafter a court having power to do so orders that the original sentence shall take effect with or without variation of its terms.”
As a public service, THE NEW TODAY reproduces in full the Justice Innocent ruling on the rape case:-
Credit for guilty plea
[49] Earlier on in its sentencing remarks, the court gave a brief chronology of the procedural history of this matter. This chronological background only served to enable the court to make a fair assessment of the timing of the defendant’s guilty plea.
[50] It appears from the record that there may very well have been some inclination towards a plea at the earlier stages of the proceedings. However, it would appear perhaps for a myriad of reasons that this did not occur until now. This was a paper committal. The indictment was filed within a year of the committal proceedings. There were numerous adjournments some of which were due to the nonappearance of the defendant and at times his co-defendant. Regardless of the reasons for the timing of the plea it can be said confidently that the plea was not taken at the earliest available opportunity.
[51] Therefore, the defendant is not entitled to the usual one-third discount from the notional sentence. In this instance the court will credit the defendant with a 25% discount from the notional sentence as a result of his guilty plea. This would equate a discount of 1 year 8 months’ imprisonment.
Delay
[52] Counsel for the defendant has urged the court that a discount from the notional sentence is appropriate to take account of the delay in the matter. This matter is approximately 8 years old. There appeared to be no explanation for this inordinate delay.
[53] The court’s approach to treating with delay as a factor affecting sentence was given ample amplification by the Court of Appeal in the case of Violet Hodge v Commissioner of Police. The court does not see the necessity of reiterating the principles enunciated in that case as these principles are now axiomatic and have left an indelible stamp on our sentencing jurisprudence.
[54] Having applied the principled approach as it pertains to delay, the sentencing court should then have to make an assessment of the amount of discount that the defendant is entitled to on account of such delay. The question of whether delay is excessive is fact sensitive. It is therefore incumbent on the sentencing court to exercise its discretion by assessing the facts and making a judgment as to what is required. There is no automatic right to a reduction in sentence on the ground of delay. However, the court possesses a residual discretion in the matter. The court’s discretionary power must be exercised in such a way to correct any perceived injustice. Delay is undoubtedly of relevance to the broad question of what a just sentence is when eventually and belatedly conviction occurs.
[55] It is unclear what prejudice the defendant may have suffered as a result of the delay in the matter. The defendant has been on bail throughout the proceedings. It is also unclear what the primary causes of the delay were. The sentencing judge in the case of Marius Wilson v The King was confronted with a similar dilemma as this court as far as the cause of the inordinate delay not being readily apparent or ascertainable. Ward JA. Delivering the judgment of the Court of Appeal had this to say:
“I am of the view that the judge did not properly take into account the excessive length of delay, his own finding that no satisfactory reason was given to explain why the appellant’s matter went on hiatus, and his further finding that the appellant contributed in “some small measure” only to this period of delay. On this basis, it is my view that this Court would be justified in exercising its discretion to review the sentence imposed by reducing the appellant’s sentences by 2 years, which I consider would meet the justice of compensating the appellant for the inordinate delay in bringing his case to trial. Accordingly, I would allow the appeal against sentence.”
[56] However, notwithstanding the sentencing court’s inability to conduct a fact sensitive assessment, the court in exercising its discretion must see to it that justice is done. Generally, applications for reductions in sentence would be unusual. There is no set mathematical formula for determining the exact figure by which a sentence can be reduced as a result of delay. This is determined by the sentencing court applying its judicial mind to an assessment of what is fair in all the circumstances of the case.
[57] In the present case, the court finds the period of almost 8 years delay to be untenable. Surely, the protracted proceedings would have been a cause of anxiety to the defendant and amounted to a breach of his constitutional right to a fair hearing within a reasonable time.
[58] The court is fortified in its view by a decision closer to home, namely, Akim Monah v The Queen where the Court of Appeal held, among other things, that section 8(1) of the Constitution of Grenada guarantees the right to a fair hearing within a reasonable time; and that the main objective of the reasonable time guarantee in relation to the right to a fair hearing, is to ensure that there is efficient disposition of criminal cases.
[59] The Court of Appeal in Monah v The Queen went on to find that the court had a broad discretion to fashion effective redress to secure the enforcement of fundamental rights. However, the redress which the court provides is fact sensitive. Furthermore, the fact that the court finds that a sentence imposed in the court below was not manifestly excessive does not restrict the remedies that the court may grant. Additionally, there is a consistent stream of jurisprudence which has established that a breach of the fundamental right to a fair hearing within a reasonable time of a convicted person can result in the reduction of his or her sentence. The court found that there were no impediments which prevented it from fashioning redress which included a reduction in Mr. Monah’s sentence in addition to making a declaration to that effect.
[60] The court wishes to echo the sentiments of Williams J. in the case of The State v Andre Armour where the learned judge said:
“There is an abundance of cases emanating from the Commonwealth Caribbean that address the issue of delay, whether under the broad rubric of an abuse of process which includes circumstances which offend the court’s sense of justice and propriety, or as the constitutional imperative of a right to a fair trial where the circumstances may be such that a defendant may suffer specific prejudice.
To sustain faith in the rule of law and the administration of justice, the mantra of “justice delayed is justice denied” ought to reverberate throughout the criminal justice system. Unreasonable, unnecessary and excessive delays must not be countenanced. The criminal justice system must operate to protect the rights and interests of the innocent accused and ensure that the guilty are swiftly punished.”
[61] In the circumstances of the present case, the court finds that a suitable reduction from the notional sentence to take account of the inexplicably inordinate delay would be 1 year and 8 months.
[62] Therefore, the court has determined that a term of imprisonment of 3 years’ imprisonment is a fair and proportionate sentence having regard to the seriousness of the offence and the personal characteristics and circumstances of the defendant. This figure of 3 years’ imprisonment was not calculated with precision. Instead, the court has determined based on the sentencing principles which it has explained that in all the circumstances of the case, this is a fair and proportionate sentence and one that is commensurate with the defendant’s degree of culpability. In other words, the sentence imposed by the court is commensurate with the seriousness of the offence.
Immediate custodial sentence?
[63] Counsel for the defendant has advocated that this is a proper case for the court to depart from the Guidelines which interrogates the proportionality of the imposition of an immediate custodial sentence. This clearly brings to the fore the manner in which the sentencing judge’s discretion in making such a determination.
[64] The court is of the view that in determining what is a fair, acceptable and proportionate sentence is based on the exercise of a sound sentencing discretion. The sentence imposed must fall within the limits of a proper exercise of the sentencing discretion. That is not to say, however, that a fair and proportionate sentence is capable of expression in precise numerical terms. References to fairness and proportionality amount to no more than a recognition that there is not one particular sentence which can be demonstrated to be correct in all cases. In other words, there is no one size fits all.
[65] Sentencing is not a mathematical process. To specify the point at which a fair and proportionate sentence begins or ends lends a misleading air of scientific precision to an exercise that cannot be precise. A sentencing judge is required to take into account all the relevant circumstances of the offence, the maximum sentence and relevant factors, such as prevalence of the crime, which are common, not to the particular offence in question, but to all offences of that type, as well as the character and antecedents of the offender. The relevant factors are to be instinctively synthesized. Therefore, the court ought to lend itself to the perception of the figure that is most likely to achieve a forensic objective and which would probably be based upon sentences imposed in other cases, where the circumstances of the offence and the offender were different.
[66] Without doubt reasonable minds may differ on the appropriate sentence in any given case, and, therefore, there is a range of permissible sentences that is open to judges in sentencing. The sentencing court must take into account a wide variety of matters which concern the seriousness of the offence of which the offender stands to be sentenced and the personal history and circumstances of the offender. Very oftenthere are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in time and measure of punishment, all of which may vary according to the overall circumstances of each case.
[67] In light of the foregoing observations, the court has given serious consideration to whether an immediate custodial sentence as opposed to a suspended sentence would be appropriate in the present case.
[68] A custodial sentence may be suspended in an appropriate case where an immediate custodial sentence might have the effect of derailing the stability and future prospects of a man of good character in a case with strong mitigating factors. In such a case, the custodial sentence can be suspended.
[69] In making the determination whether a suspended sentence is appropriate, the court has taken into account the character and personal circumstances of the defendant. At the time of the commission of the offence the defendant was still in attendance at school. He is now 25 years of age. He has completed an Associate’s Degree in physical education and is presently a volunteer with the national swimming program. He is a first offender and not a recidivist. He is also gainfully employed.
[70] In view of all of the above the court has determined that the sentence of 3 years imprisonment ought to be suspended. This suspended sentence ought not to be regarded as a substitute for an immediate custodial sentence. The fact remains that the defendant has a conviction and sentence registered against his name. In the court’s view, given the personal circumstances of this defendant the court can see no meaningful aim of punishment that would be served by imposing an immediate custodial sentence as this would only serve the meaningful aim of retribution.
The sentence
[71] Therefore, the sentence of the court is that the defendant is sentenced to 3 years’ imprisonment which shall be suspended for a period of 3 years. The sentence of 3 years’ imprisonment herein shall not take effect unless, during the period of 3 years from the date sentence is pronounced, the defendant commits another offence punishable with imprisonment and thereafter a court having power to do so orders that the original sentence shall take effect with or without variation of its terms.
Shawn Innocent
High Court Judge
By the Court
Registrar
