Appeal Court reviews rapist’s sentence after judge’s error

The content originally appeared on: Trinidad and Tobago Newsday

Appeal Court Justice Gillian Lucky –

A PREVIOUSLY convicted rapist will be allowed to vacate or maintain his guilty plea after the Court of Appeal ruled a material irregularity occurred at his sentencing.

If he vacates the plea, his case will be remitted to the High Court. It is for this reason his name will not be published at this time to protect the integrity of any trial if he chooses to do so.

On November 22, the Appeal Court will determine if the case should be sent back to the High Court or if they will sentence him.

On Tuesday, Justices Mark Mohammed, Gillian Lucky and Maria Wilson delivered their decision in an appeal that was the first of its kind involving a challenge of a sentence based on a maximum sentence indication (MSI).

The accused appealed his sentence because the sentencing judge took into account his pending charges without his consent and increased the starting point of her sentence after giving an MSI.

“This court finds…that a material irregularity occurred when the trial judge considered the pending offences of the appellant in the determination of the MSI.

“This error was compounded by the conflation of the MSI hearing and sentencing process. The unfortunate mixture of the two distinct procedures has resulted in a blurred methodology for the final sentence.”

The Appeal Court’s decision, written by Lucky, clarified the procedures for MSIs and how judges should approach sentencing after one is given.

“It is hoped that moving forward, judicial officers will implement the guidance contained in this decision to prevent ‘unforced errors’ or unnecessary complications in maximum sentence indication hearings, “ Lucky said.

Judges were encouraged not to hold a full sentencing rehearsal during an MSI hearing.

“It is incumbent upon a judge to bear in mind the distinction between an MSI hearing and the sentencing process.

“Put simply, the MSI is a commitment by the court that should the accused plead guilty, the final sentence imposed will not exceed the indication.”

Lucky added,” It could not have been contemplated that the indication of the MSI was part of the actual sentencing process because such a conflation would mean that the judge would have to give a detailed account of all that has been considered such as the identification of all the aggravating and mitigating factors, and then be bound by such specificity.

“Further, the judge would then have to use the MSI once accepted by the accused as the starting point to continue the sentencing process and this would lead to unfairness to the prosecution and the process of sentencing itself.”

Lucky’s judgment also set a six-step process for judges to follow for an MSI and maintained such hearings had to be held in accordance with the practice directions and the principles in the case of Goodyear.

In the case on appeal, the judge said it was clear the procedure used for the MSI hearing departed from both.

“This departure seems to have become the usual practice in several courts, both at the level of the High Court and magistrates’ court and so the opportunity is taken in this appeal to return the MSI procedure to its proper tracks.

“In so doing there will be uniformity in the MSI procedure throughout all the courts,” Lucky said.

According to the judge, the MSI process was initiated by an accused who wanted to know the “most severe” sentence they could get if they pleaded guilty.

“The MSI hearing is not meant to be a ‘mock’ for the sentencing process,” nor could it be used as the “starting point” in the sentencing process, the judge said.

“Therefore, when an MSI is requested, it is incumbent upon a judge to bear in mind the distinction between an MSI hearing and the sentencing process. To do otherwise will attract, a number of unnecessary complications such as the use of the MSI as the starting point.”

In providing advice for judges, the judge also said there was no need to give a detailed sentencing methodology for an MSI nor was there a need to demonstrate the reasoning process.

Lucky also advised attorneys to pay close and active attention during proceedings and point out to the judge matters that appeared contrary to the law.

The appellant was represented by Deputy Chief Public Defender Raphael Morgan and Ravi Rajah while former assistant DPP, now a judge in Belize, appeared for the State.