Judge ‘was wrong’ to sentence convicted murderer to 12 years, says Court of Appeals

Judge ‘was wrong’ to sentence convicted murderer to 12 years, says Court of Appeals

The sentencing judge, Justice Bertram Morrison, “erred” in his decision to hand down 12-year sentences to a man convicted of two Westmoreland murders in 2017, the Court of Appeals said Friday by overturning the petty sentences.

“The approach taken was, with respect, unorthodox at best,” the court said.

Those comments are included in the written judgment for the ruling delivered Friday morning in which the Crown recorded a historic victory by granting the first appeal under the Judiciary (Appeal Jurisdiction) (Amendment) Act, 2021. The ODPP in December 2021 notified that it would appeal the 12-year sentence handed down against Lindel Powell, also called Lazarus.

READ: Crown Wins Historic First Appeal: Westmoreland Murder Convict Now Serving Two Life Sentences

The court, which heard arguments and submissions in May this year, reserved judgment. In Friday’s sentencing, he ordered that the sentences imposed by the learned sentencing judge be annulled and life sentences be imposed instead. Instead of the 12 years handed down to Powell by the sentencing judge, the convict will now serve two life sentences and hard labor.

On the first count, the appeals court ordered Powell to serve a life sentence with the stipulation that he would serve 20 years and seven months of hard labor before becoming eligible for parole.

On the second charge, the court ordered Powell to serve a life sentence on the condition that he serve 24 years and seven months of hard labor before being eligible for parole. The sentences will be executed simultaneously and will be considered started on the date they were imposed.

The Crown had recommended life imprisonment with eligibility after 21 years for each count during the original term of office. However, that offer was rejected by Judge Bertram Morrison, who tried the matter.

Powell was taken into custody after being held with a firearm belonging to Oral McIntosh, a licensed firearms possessor, who was shot to death at his home in the Top Lincoln District, Grange Hill, Westmoreland on Saturday, January 7, 2017. .

During a question-and-answer interview on July 15, 2017, Powell indicated that he was in the company of Logan Miller, also called Alkaline (now deceased), on the day of the murder.

Powell confessed that he and Alkaline were on the road robbing men and women when he saw two men in a yard. He approached them and said “go pon unnu face”. While the men were on the ground, he searched McIntosh’s truck while Alkaline searched for the men. He said Alkaline found a gun on McIntosh, shot him in the head and took the gun. They also took the slain man’s phone and about $32,000 in cash.

Powell also confessed to the murder of a man named Ika Clarke in March 2017 at Mount Mountain, Grange Hill, Westmoreland.

When asked what role he played in that murder, he said, “He fires five shots in the chest.”

He also claimed that Clarke was killed because “he made a talk mek seh mi cousin Bleachers cyaan bury an den mi a go dead and he already killed one a mi fren’, Jabez.” Additionally, Powell said the gun police found on him on July 14, 2017, was one of the weapons used to kill Clarke.

In its written judgment, the appellate court said that the questions it sought to answer in its ruling were whether the sentencing judge had erred in principle in imposing the original sentences, whether he had the power to impose those sentences, and whether they were unduly lenient or manifestly inappropriate?

According to the court, with the “undisputed factual circumstances indicating that McIntosh was murdered in the course of or incidental to a robbery, it is evident that the learned judge erred in not imposing a life sentence in respect of this charge; and to impose instead a sentence of 12 years in prison.”

According to the appellate judges, “the trial judge should have stipulated a period of not less than 20 years before the defendant would have been eligible for parole.”

The court further said that while the judge had made several references to the Criminal Justice (Administration) (Amendment) Act 2015, which required him to consider, among other things, whether the sentences he would impose would shock the public conscience and that they gave him the power to grant a discount of up to 50 percent, a careful reading of the Law shows that, in reality, this was not the case.

He said that “in making this mistake, the learned judge appeared to have conflated the provisions of section 42D and section 42E of the Act” adding that “the reality is that section 42D of the CJAA applies to offenses in general, that is, those other than murder, and allows a sentencing judge on a guilty plea at “the earliest relevant date” to reduce a sentence “up to fifty percent.”

“It seems to us that, although the learned judge referred several times to section 42(H) of the Act and to the concept of a sentence that shocked the public conscience, he did not pay enough attention to the opinions expressed in the section of the report of the community of the social research report; and to give those views greater weight than he did in reporting the sentences ultimately imposed. We believe that those considerations, together with all the other circumstances discussed in this case, give a sufficient indication that the sentences imposed would, in fact, shock the public conscience,” the judges said.

The appellate court judges further said, “although the learned judge mentioned some of the main factors and principles that must be taken into account in deciding the appropriate sentences in this case, the approach taken was, with respect, at best unorthodox cases.

“The approach taken in final sentencing also demonstrates an unusual crowding of sentences for the two offenses or counts in the indictment. It should be kept in mind that when the charges in the indictment arise from different circumstances, there should be an individual consideration of the appropriate sentences. The methodology employed by the learned judge resulted in the imposition of the same sentence for both offenses without any apparent consideration of the difference in circumstances,” the court further stated.

In short, the court said that the judge was wrong to impose a sentence of 12 years in prison instead of life imprisonment (or, at a minimum, 15 years in prison) with respect to the first charge; and (ii) by imposing a sentence of 12 years – that is, less than the prescribed minimum of 15 years in prison – for the second count.

“We understand that the legal judge made an error in imposing the sentence that he issued in relation, at least, to the first charge. Therefore, he imposed penalties that he did not have the power to impose, which gives us the right to re-convict the defendant,” he stated.

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