Pooran v The State

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mohammed, J.A.,Weekes, J.A.,Moosai, J.A.
• Judgment Date: 10 March 2016
• Neutral Citation: TT 2016 CA 17
• Docket Number: Criminal App. No. 32 of 2015
• Date: 10 March 2016

Court of Appeal

Weekes, J.A.; Moosai, J.A.; Mohammed, J.A.

Criminal App. No. 32 of 2015

Pooran

and

The State

Appearances:

Mr. P. Carter for the appellant.

Mr. G. Busby for the respondent.

Criminal Practice and Procedure - Appeal against sentence — Manslaughter — Guilty plea — Sentenced to twenty years — Whether the sentence imposed was unduly severe — Whether the judge failed to give credit for the appellant's time spent on remand — Whether the judge failed to clearly indicate the discount given to the appellant for her guilty plea — Whether the appellant would suffer substantial injustice if her time spent on remand was not deducted from her sentence because of the inequality of treatment of her co — accused as compared to herself — Whether the rehabilitative efforts of the appellant made her a good candidate for a reduction of her sentence.

Mohammed, J.A.

1 ) On the 6th of May 2008, the appellant Nadia Pooran (who had been indicted for Murder jointly with three other persons — Shelly-Ann Anganoo, Nicholas Ali and Tesfa Jones), pleaded guilty to the offence of manslaughter. The State outlined the following facts against her.

THE FACTS:

2 ) On the night of the 25th of March 2003, the deceased, Ralphy Ramcharan, a forty one year old retired school teacher, visited Vinoo's Bar in Curepe where he spent some time in the company of the appellant and Shelly-Ann Anganoo. He then left the bar alone. Shortly after, the appellant and Anganoo also left the bar to join the deceased outside. Both women then entered the deceased's motor vehicle and were joined by two men, Nicholas Ali and Tesfa Jones. Pursuant to an agreement among the four to steal the deceased's car, the deceased was first robbed of his money and then placed in the backseat of the car, while one of the two men drove it away from the area of the bar to a lonely trace in Barataria. There, the deceased's hands and feet were bound and he was stabbed with a pair of scissors and struck with a wheel spanner. The deceased was stripped of his clothing and his body thrown into a nearby waterway.

A post mortem examination conducted on the body of the deceased disclosed that he died from skull and brain and other multiple injuries and haemorrhage due to multiple chop wounds to the head and body.

On April 5th 2003, the appellant gave a statement to the police under caution. (See Transcript of the Guilty Plea — 6th May 2008 pg. 5, lines 43-50 and pg. 6, lines 1-39).

3 ) At the sentencing proceedings, she did not dispute any of the facts outlined by the prosecution.

4 ) In the appellant's cautionary statement, she repudiated any advance knowledge of a plan to rob the deceased and instead asserted that she had only looked on while events, in effect, overtook her. On one occasion, whilst in the deceased's car on the journey from Curepe, the deceased had snatched the appellant by her neck. The appellant responded by taking a pair of scissors that was in the deceased's car and with it, inflicted an injury to his hand. This was the appellant's only concession to using any form of violence to the deceased on the night in question. She did not participate in inflicting any other physical violence on the deceased. In her presence however, the deceased was stabbed with the knife in his chest, beaten on his head with a wheel spanner, thrown in the water and submerged under it. The appellant admitted to trying subsequently to use the deceased's bank card.

THE PLEA IN MITIGATION:

5 ) At the hearing of the plea in mitigation, the judge enquired as to the basis upon which the guilty plea to the lesser count of manslaughter had been accepted by the State. Anganoo had also pleaded guilty to manslaughter. Counsel for the prosecution responded that the acceptance of the guilty plea was occasioned by the appellant's statement under caution, which comprised the only evidence against her. In that statement, she had minimized her role, as had Anganoo. (We observe here that each confederate had, in “textbook” fashion, sought to cast far more substantial blame upon the other confederates while severely minimizing her or his own role). Counsel for the prosecution stated that the State was not of the view that the appellant should receive a more severe sentence as the alleged instigator. The State's sentencing recommendation was a sentence of twenty five years. (See Transcript of 4th June 2008 at pg. 24, Lines 2-24).

6 ) At the time of the appellant's sentencing in June of 2008, and before the decisions were rendered by the Judicial Committee of the Privy Council in Callachand and Anor v. The State of Mauritius [2008] U.K.P.C. 49 and by the Caribbean Court of Justice in Da Costa Hall v. R [2011] CCJ 6 (AJ), there was no consistent approach in this jurisdiction with respect to judges performing the sentencing exercise, granting full credit for the time spent by a convict on remand. By the time she was ready to be sentenced, the appellant had spent approximately five years on remand.

THE JUDGE'S SENTENCING REMARKS:

7 ) In her remarks on sentence, with respect to the mitigating factors of the case, the judge noted that the killing did not appear to be premeditated, but one that had spiralled out of a robbery. The judge took account of the fact that the appellant had no previous convictions and considered that the appellant had given a voluntary statement to the police. She considered that both prisoners had already been incarcerated for a period of five years. In weighing up the relevant considerations, the judge considered the most notable factor in favour of the appellant to be that she had pleaded guilty, thus taking responsibility for her actions and not wasting precious judicial time.

On the other hand, by way of the aggravating features which attended the matter, the judge noted that the case appeared to be one involving the use of gratuitous violence. The judge referred to decisions of the Court of Appeal which examined sentences imposed in cases which involved a callous level of brutality. These cases were Orie Andrews v. The State Crim. App. No. 21 of 1998, The State v Anthony Centeno Crim. App. No. 198 of 1997, The State v. Garfield Timothy Joseph Crim. App. No. 124 of 1997 and Noreiga v. The State Crim. App. No. 44 of 1994.

The judge accepted the contention of the State that there was no justification for making a distinction between the appellant and Anganoo. They were both sentenced to terms of imprisonment of twenty years with hard labour. (See Transcript of the Sentencing, 23 June 2008 at pgs 2-15).

GROUNDS OF APPEAL:

GROUND (1) — THE SEVERITY OF THE SENTENCE:

8 ) The appellant contended that the sentence, imposed was unduly severe in that:

• (a) The learned trial judge failed to give credit for the appellant's time spent on remand;

• (b) The learned trial judge failed to clearly indicate the discount given to the appellant for her guilty plea.

Mr. Carter, on behalf of the appellant, submitted that the time spent in pre-trial custody was not shown to be deducted from her sentence in clear, arithmetical terms.

He additionally submitted that although the judge made mention of the five years spent in pre-trial custody, it was unclear as to whether a discount was given, how it was arrived at and what was its eventual value.

THE TIME SPENT ON REMAND:

9 ) Mr. Busby for the respondent submitted that it was important to note that the Privy Council and the Court of Appeal authorities which provided guidance on how judges were to approach the issue of pre-trial custody as it affected the sentencing exercise, were decided after the judge had sentenced the appellant and so it was completely understandable that the judge did not precisely set out how these periods were factored into the sentence imposed.

10 ) He submitted that although the judge did expressly consider the five years that the appellant had spent in custody awaiting trial when she was assessing how the mitigating factors would affect the sentence she imposed, she did not precisely set out how this time was factored into that sentence. He therefore conceded that the appellant was entitled to have the five years she spent in custody, awaiting trial, deducted from whatever sentence the court considered appropriate.

11 ) In Da Costa Hall v. R, the Caribbean Court of Justice, in a joint judgment, at paragraph 17, followed the decision of the Privy Council in Callachand & Anor v. The State and recognized a prima facie rule of according full credit for time served in pre-sentence custody. At paragraph 26, the Caribbean Court of Justice said that the judge should state with emphasis and clarity what is considered to be the appropriate sentence, taking into account the gravity of the offence and all mitigating and aggravating factors, that being the sentence the judge would have passed but for the time spent by the prisoner on remand. The primary rule is that the judge should grant substantially full credit for the time spent on remand in terms of years or months and must state his or her reasons for not granting a full deduction or no deduction at all.

12 ) In Walter Borneo v. The State Cr. App. No. 7 of 2011, this Court applied the decision in Da Costa Hall v. The State, reasoning that the prevailing conditions on remand were such that the entire period spent in pre-sentence custody ought to be discounted from the sentence that the trial judge arrives at, having taken into account the gravity of the offence and mitigating and aggravating factors. The judge should then state with emphasis the appropriate sentence so arrived at, and then deduct the time spent on remand awaiting trial for the offence, showing in a clear and transparent fashion how the sentence to be served is arrived at (per Narine, J.A. at pgs. 19 and 20).

13 ) The fact that the Judge in this case did not proceed along the precise methodological lines set out in Da Costa Hall v. The...