LLEWELLYN…we are grateful to have seen our lifetime legislation passed which has eased our balance in the scales
DIRECTOR of Public Prosecutions Paula Llewellyn, KC, has said that Friday’s ruling by the Court of Appeal, in what was the Crown’s first appeal under the Judiciary (Appellate Jurisdiction) (Amendment) Act of 2021, is a victory for the public interest and one that “acts as a guide for all actors in the system”.
The court, in overturning the 12-year sentences of Westmoreland man Lindell Powell, who was convicted of two murders in 2017, ordered that the sentences imposed by the sentencing judge be vacated and life sentences imposed. It ruled that Powell will now serve two life sentences at hard labor.
On the first count, the Court of Appeals ordered Powell to serve a life sentence, with the stipulation that he serve 20 years and seven months of hard labor before becoming eligible for parole.
On the second charge, Powell will serve life in prison, on the condition that he completes 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. Effectively, Powell will serve the longer of the two sentences, which is 24 years and seven months of hard labor.
The Court of Appeal handed down a ruling on Friday.
The landmark appeal, which was brought before the Court of Appeal in May this year, was the first to be brought under the Act. The Crown had recommended life imprisonment, with eligibility after 21 years for each count during the original sentence. . However, that offer was rejected by Judge Bertram Morrison, who tried the matter.
The Court of Appeal, declaring on Friday that the trial judge, Justice Bertram Morrison, “erred” in those decisions, said “the approach taken was respectfully unorthodox at best.”
Talking with him Jamaican Observer After sentencing, the DPP said, “We in the office of the Director of Public Prosecutions, because it was a team effort, we are grateful to have seen in our lifetime, legislation that has been passed that has made it easier to balance our scales with regarding access to appeal in these circumstances.
“I see it as the pendulum of justice swinging, not only in the direction of the accused in this particular area of practice, but also in the direction of the victim through the prosecution who has a right to appeal in limited circumstances” said to the Observer.
Powell will now serve two life sentences at hard labor. (Photo: AP)
Llewellyn said that while Jamaica is one of the last countries to have this right, “better late than never.”
“We are simply grateful that the hard work and research and presentations that were made found favor with the Court of Appeals, which provided a very detailed analysis, composition and interpretation and acknowledgment of the relevant legal concept, and this ruling will act as a guide for all the actors in the system,” he said.
According to the DPP, “just as the case law has acted as a great guide as to what is manifestly excessive in terms of sentencing, what would be unfair to an accused person, so too this particular sentence will improve our case law in terms of refers to the concept called unduly lenient and how it should be avoided—because if it is not avoided it can destroy or damage public confidence in the administration of justice in the same way that a manifestly excessive sentence would also destroy public confidence”.
Meanwhile, the DPP, highlighting the roles of Principal Deputy Director of Public Prosecutions Andrea Martin Swaby and Jeremy Taylor, KC, and prosecutors Renell Morgan and Marvin Richards in the matter, paid tribute to former Directors of Public Prosecutions Kent Panty, KC; the late Glen Andrade, KC; and Ian Forte, KC, who “supported the prosecution having a right of appeal as a principle of criminal practice that should have been brought into play much sooner.”
“But suffice it to say that when I passed the baton as director of the public prosecution, I, together with my team, continued with the effort to make the necessary submission to the relevant authorities in the Ministry of Justice; and I have to thank the Honorable Attorney General, Mr. Delroy Chuck, who, in turn, made a strong representation,” the DPP said. She said the former Attorney General of the previous Administration, Mark Golding, also played a role in the process.
The Court of Appeal, in the written ruling, said that the questions it sought to answer in its ruling were whether the sentencing judge had made a principled error in imposing the original sentences, whether he had the power to impose. 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 empowered him 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 50 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 report section of the community of the social inquiry report and give those views greater weight than it did in reporting the sentences ultimately imposed. We are of the opinion that those considerations, together with all the other circumstances discussed in this case, give an indication enough that the sentences imposed would, in fact, shock the public conscience,” the judges declared.
The Court of Appeal judges further said that “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, respectfully, at best unorthodox.”
“The approach taken in final sentencing also demonstrates an unusual grouping of sentences for the two crimes, or charges, in the indictment. It should be noted that when the charges in the indictment arise from different circumstances, there must be a individual consideration of appropriate sentences. The methodology employed by the learned judge resulted in the same sentence being imposed for both offenses without any apparent consideration of the difference in circumstances,” the court stated.
In short, the Court of Appeal said that the judge was wrong to (i) impose a sentence of 12 years’ imprisonment instead of life imprisonment (or, at a minimum, 15 years’ imprisonment) 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 consider that the lawyer judge made an error in imposing the sentence that he issued in relation, at least, to charge one. Therefore, he imposed penalties that he had no power to impose, thus giving us the right to sentence the defendant again,” he stated.
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 my cousin, Bleacher, cyaan bury an den mi a go dead, and he already killed one to my fren, Jabez.” Additionally, Powell said the gun police found on him on July 14, 2017, was one of the weapons used to kill Clarke.