The State v Akeem Elvin O/C David McKnight O/C Shorto

• Jurisdiction: Trinidad & Tobago
• Judge: Justice Lisa Ramsumair-Hinds
• Judgment Date: 18 December 2024
• Neutral Citation: TT 2024 HC 325
• Docket Number: CR-HC-TGO-2024-8-1
• Court: High Court (Trinidad and Tobago)

The State

and

Akeem Elvin O/C David McKnight O/C Shorto

For

Wounding With Intent

Before

The Honourable Justice Lisa Ramsumair-Hinds

CR-HC-TGO-2024-8-1

IN THE HIGH COURT OF JUSTICE

CRIMINAL DIVISION

Appearances:

Ms. C. Samuel and Ms. G. Guy for the State.

Mr. A. Walters for the Prisoner.

SENTENCE RULING

INTRODUCTION

1 By an Indictment filed on 18 March 2024, the Prisoner, Mr Akeem Elvin also called David Mc Knight also called ‘Shorto’, was charged with the offence of wounding with intent. The particulars of the charge are that on 8 January 2024 at Bon Accord in the Magisterial District of Tobago, the Prisoner wounded D'Jan Melville otherwise called ‘Cyber’ with the intent to do grievous bodily harm to him.

2 This indictable charge was filed in the High Court by Officer Anderson Mc Kain (the Police Complainant) on 15 January 2024. On 13 August 2024, a Master of the High Court concluded that a prima facie case had been established and committed the Prisoner to stand trial in the Assizes. The Prisoner was arraigned on 2 December 2024 and upon pleading Not Guilty, a jury of his peers was empanelled. The foreman returned the Guilty verdict on 16 December 2024.

3 A plea in mitigation was made orally by Defence Counsel. State Counsel also provided assistance in the sentencing exercise. The Prisoner now falls to be sentenced.

4 Before I proceed to sentence, I pause to once again recognize the potential for change in the criminal justice system in light of the Administration of Justice (Indictable Proceedings) Act, 2011 (AJIPA) and earnest robust application of the new Criminal Procedure Rules (CrPR), both of which came into operation just last December. This case also demonstrates the realization of the aspirational goals in the Needham's Point Declaration onCriminal Justice Reform1 (NPD) which was adopted and acclaimed at the CCJ Academy for Law's 7 ^th Biennial Conference held in Barbados in October 2023. Indeed, paragraph 19 of the NPD notes that “as a rule, trials should be held within one (1) year of the accused being charged (for indictable offences) and six (6) months (for summary offences). During the necessary transitional stage to this ideal, trials should be held within two (2) to three (3) years of the accused being charged (for indictable offences) and twelve (12) months (for summary offences).”

5 Indeed, this Indictment is the first matter in Tobago to progress from filing to disposition by jury trial under the AJIPA framework and has been determined less than 1 year after the date of the offence, well within the aspirational goals of the NPD.

FACTUAL BACKGOUND

6 At the trial, the State called 7 witnesses (6 viva voce and 1 formal admission). The Prisoner also gave evidence. His defence was denial and self-defence. He also relied upon his previous good character. Evidently, by their verdict, the jury rejected the Prisoner's version as to what transpired and accepted the State's case to the requisite standard.

7 The Virtual Complainant, Mr D'Jan Melville was at his home on 8 January 2024 around midday. He fell asleep, leaving his door unlocked. When he awoke, he realised some of his personal items were missing. He made enquiries of a couple persons nearby and got a name of someone who he

believed had taken his belongings. He put on a jersey and headed to the person's place to retrieve his property. On his way, he saw the Prisoner sitting down on a cesspit tank stand and told him, ‘Yuh friend take some things from me and I am going to get back my things’. He left the Prisoner there and walked off

8 He went straight to the home of the person who he believed took his things. Her name was Jalisa Thomas aka J Boss and she was the common law wife (girlfriend) of the Prisoner. He went up the stairs and through the open door. He was angry. He questioned her about his things, but she denied taking them. She picked up a cutlass from behind a chair and swung it at him. It hit his shoulder but did not cause injury. He repeatedly asked for his belongings and she denied any knowledge. He chucked her and took away the cutlass. As he was getting nowhere with J Boss, he began to leave. As he was doing so, she took up an ashtray and flung it at him, which did hit him. He nevertheless left. The cutlass was in his pocket at this time.

9 As he was walking down the stairs, he saw the Prisoner coming towards the stairs. The Prisoner asked him for the cutlass and he handed it over. The Prisoner immediately chopped him and told him to leave. The injured VC then left and went home.

10 He was badly injured and someone called an ambulance. Police came and met him there while the EHS was attending to him. He was then taken to the Scarborough General Hospital where he was taken into surgery and warded for some time.

11 Meanwhile, the police went to the home of the Prisoner and J Boss. The Prisoner was not at home at the time. J Boss was there and the police interviewed her. They also observed that the house was ransacked, in that furniture appeared to be out of place. They noted what looked like a pool of blood downstairs on the outside of the premises. From this ‘pool’, a trail of ‘blood’ led away from the house. CSI officers placed markers and photographed these observations outside the home of the Prisoner. Indeed, based on their observations and after interviewing J Boss at the house, the CSI officers treated the forensic part of their investigation as an entirely external environment/scene. CSI police discovered a very sharp cutlass with what looked like blood stains some 150 m from the home of the Prisoner.

12 Later that same day, the Prisoner went to the Crown Point Police Station. He met the Complainant and, when told of the report of wounding, he made an oral utterance and agreed to an interview. The Prisoner was later charged for the offence on the Indictment.

SENTENCING PRINCIPLES

13 The authorities are well-settled as to the aims of sentencing and the methodology to be used by sentencing judges. The five principal objects of sentencing are set out in Benjamin v R2, and bear repeating:

• i. The retributive or denunciatory, which is the same as the punitive;

• ii. The deterrent vis-à-vis potential offenders;

• iii. The deterrent vis-à-vis the particular offender then being sentenced;

• iv. The preventative, which aims at preventing the particular

  offender from again offending by incarcerating him for a long period; and

• v. The rehabilitative, which contemplates the rehabilitation of the particular offender so that he might resume his place as a law-abiding member of society.3

14 Of course, certain of these objects may loom larger than others 4, depending on the individual facts of each case.

15 I have also been guided by the four-tiered methodology which is expected to be applied by all sentencing judges, as set out by their Lordships in Aguillera, Ballai, Ballai and Ayow v The State5. The overall sentencing structure is set out as follows:

• i. The calculation of the starting point which takes into account the aggravating and mitigating factors of the offence only; these are the objective circumstances which relate to the gravity of the offence itself and which assist in gauging the seriousness, that is the degree of the harmfulness of the offence;

• ii. An upward or downward adjustment of the starting point (or dependent on the circumstances, and if there is in effect, a cancelling out, no adjustment at all), which takes into account the aggravating and mitigating factors relative to the offender; these are the subjective circumstances of the offender which in turn inform the degree of culpability of the particular offender;

• iii. (Where appropriate), a discount for a guilty plea; any deviation from the discount requires particularly careful justification and an explanation which is clearly expressed; and

• iv. Credit for the period of time spent in pre-trial custody.6

16 In Jude John Arjoon v The State7, the Court of Appeal included an additional final step to the Aguillera methodology, i.e., to incorporate ‘the totality principle’. In paragraph 117 of that decision, it was explained thus: “ This final step will enjoin the sentencer, after the determination of the appropriate sentence(s) to be imposed, to “step back” and glean the intended sentence, whether individual or aggregate, consistent with the totality principle… The purpose of this final step is to ensure that the sentence(s) imposed is/are proportionate and not excessive.” I therefore bore in mind the principle of proportionality when determining the appropriate sentence in this matter.

SENTENCING PRINCIPLES

17 Section 12 of the Offences Against the Person Act8 provides:

“Any person who unlawfully and maliciously by any means whatsoever wounds or causes any grievous bodily harm to any person, or shoots at any person with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, is liable to imprisonment for fifteen years.”

18 I took note of several precedents as I considered parity and proportionality in fixing a starting point. Of course, I was careful in applying them as several of these cases were pre- Aguillera. Some of the more notable cases are as follows:

• a. Mark Cudjoe v The State9 — The appellant was found guilty of the offence of wounding with intent to do grievous bodily harm and was sentenced to a final term of 10 years imprisonment with hard labour and 15 strokes with the birch, which was upheld on appeal. The altercation between the appellant and the victim began with a verbal dispute on the road during which the appellant threw a bottle at the victim which struck him on his eye. The victim ran away from the appellant, who pursued him armed with a cutlass. The appellant succeeded in overtaking the victim and thereupon chopped him on his neck with...