The State v Evelyn

JurisdictionTrinidad & Tobago
JudgeBrown-Antoine, J.
Judgment Date04 January 2011
Neutral CitationTT 2011 HC 13
Docket NumberHCA 60 of 1995
CourtHigh Court (Trinidad and Tobago)
Date04 January 2011

High Court

Brown-Antoine, J.

HCA 60 of 1995

The State

Mr. Brent Winter for the State

Messrs Gerald Ramdeen and Mark Seepersad for the Applicant

Criminal practice and procedure - Review of sentence — Manslaughter — Detention at the Court's pleasure — Determination of minimum sentence.

Brown-Antoine, J.

This is an application for review of sentence. The applicant pleaded guilty on 26th June 1996 to manslaughter by reason of diminished responsibility on an indictment charging two (2) counts of murder. He was sentenced by McMillan, J. to detention in prison “until the President's pleasure is known” pursuant to section 4A (6) of the Offences Against the Person Act, Chap 11:08.


In 2007 the applicant brought a constitutional motion challenging the validity of his sentence. On 6 July 2009, Smith, J. (as he then was) ruled that such a sentence was illegal as it offended against the principle of the separation of powers enshrined in the Constitution. Consequently, the judge ordered that the sentence of McMillan, J. be varied to read and have the effect that the applicant be detained “until the court's pleasure is known” and that section 4A (6) of the Offences Against the Person Act also be modified to that effect.


Smith, J. further ordered that the applicant was entitled to have his sentence reviewed by the High Court periodically and that he be brought before the court sitting in its criminal jurisdiction as soon as practicable for a review of his detention.


Mr. Ramdeen, on behalf of the applicant, has submitted that at the review stage of the applicant's detention, the test which the court must satisfy in order to justify the further detention of the applicant is that the applicant must pose a real risk to the public or himself or must be suffering from some disease of the mind which by its very nature requires his further detention.


He also contends that the undoubted purpose of detention of a person ordered to be detained under the provisions of section 4A of the Offences Against the Person Act is the same as that of an insane person ordered to be detained under the provisions of section 66 of the Criminal Procedure Act. The purpose of the order for detention is preventative and therapeutic. In other words, there is no punitive element to the detention. As such, it is submitted on behalf of the applicant, that the only order that ought to be made by this court is that the applicant be discharged from custody forthwith.


Mr. Winter, on behalf of the State, contends that the purpose of a sentence upon conviction for manslaughter by reason of diminished responsibility is not solely ‘preventative and therapeutic’ but such sentence may contain a punitive element dependent upon the offender's degree of residual responsibility for his acts. As such, at the review stage, the State submits that the court ought to adopt the procedure outlined in the ‘Attin guidelines’, and set a minimum term in accordance therewith.


In Greene Browne v. The State Privy Council Appeal No. 3 of 1998 their Lordships recited with approval the view which prevailed in R v. Secretary of State for the Home Department Ex parte Venables [1997] 3 All E.R. 97 concerning the effect of detention during Her Majesty's pleasure. In that case Lord Browne-Wilkinson had said that:

“…detention during Her Majesty's pleasure is wholly indeterminate in duration: it lasts as long as Her Majesty (i.e. the Secretary of State) considers appropriate… It is not a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life. In cases of detention during Her Majesty's pleasure the duty of the Secretary of State is to decide how long that detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment.”

Lord Hobhouse stated in Browne supra:

“The sentencing court has discretion as to the length of the detention. The sense and purpose of the concept “during pleasure” is that it is not a once and for all assessment that is made at the time that the defendant is first before the court after his conviction. Its purpose, as was pointed out in Ex parte Venables …is that it enables the position to be reviewed from time to time.”

Lord Steyn in Ex parte Venables at p. 144e had explained the difference between a sentence of custody for life and detention during Her Majesty's pleasure and said:

“Parliament differentiated between the two sentences. An order of detention during Her Majesty's pleasure involves merely an authority to detain indefinitely. That means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified. Life imprisonment involves an order of custody for life. That means, as the Home Office has interpreted the sentence of mandatory life imprisonment that the Home Secretary must consider whether and when release is justified. These are obviously different approaches.”(emphasis mine)

Lord Hobhouse further explained that “it was also accepted that punishment was part of the purpose of the sentence and therefore that the Secretary of State, in exercising his statutory discretion regarding the duration of the detention, should have regard to the need to punish the defendant.”


The applicant has relied on the case of Ex parte Venables supra and the constitutional motions of George Noreiga and Edmund Funrose v. The State H.C.A. No. 2474/2003 and H.C.A. No. 1816/2003 respectively (which were heard together) in support of his submission that the purpose of his detention is solely preventative and therapeutic. On the other hand the State has placed great reliance on the case of R v. Wood [2009] Crim. L.R. 543 (CA). In that case on appeal the appellant's conviction for murder was substituted for a conviction for manslaughter on the basis of diminished responsibility. The decision proceeded on the basis that the appellant was suffering from an abnormality of mind which substantially impaired his mental responsibility for his acts in doing the killing. The abnormality arose from alcohol dependency syndrome. The Court of Appeal did not agree with the appellant's attorney that the assessment of the seriousness of an offence of manslaughter on the grounds of diminished responsibility must be focused exclusively on the defendant's culpability.


I agree with the submissions of the State that the purpose of the sentence of a person found guilty but insane is different from the purpose of the sentence of a person found guilty of manslaughter by reason of diminished responsibility. Insanity is a complete defence to a crime requiring mens rea and it is clear that the special verdict provided for under section 66 of the Criminal Procedure Act is tantamount to an acquittal. However diminished responsibility is a partial defence to murder operating to reduce the offence to a conviction for manslaughter. The fact that diminished responsibility reduces rather than excludes liability for homicide explains the difference in judicial approach to sentencing for diminished responsibility manslaughter as opposed to one who is found to be guilty but insane.


In Chuck Attin v. The State (2005) 67 WIR 276 (Attin No.1) the Court of Appeal gave valuable guidance on the factors to be considered in the passing and review of sentences of convicted persons “detained at the court's pleasure”. While the case concerned juvenile offenders in particular, this court is of the view that the guidance issued in relation to persons ‘detained at the court's pleasure’ is of general application.


In Attin No. 1 the appellant and his co-accused had been convicted in 1997 of the murders of two women. At the time the murders were committed the appellant was 16 years old and was sentenced by the trial judge to be detained ‘during the State's pleasure’ pursuant to section 79 of the Children Act. The appellant challenged the constitutionality of this sentence and in 2003 Mendonca, J. (as he then was) varied the order to read ‘at the court's pleasure’ and remitted the matter to the court for a ‘review’ of the appellant's detention. The matter came before Volney, J. who ordered that the appellant be detained for a period of 25 years after which he should be brought back for review. On an appeal against this order, the Court of Appeal affirmed the 25-year minimum sentence imposed by the judge but held that the appellant's detention must be reviewed periodically and not after the expiry of the sentence.


Where a person is sentenced to be detained ‘at the court's pleasure’, the trial judge must at the time of the imposition of such a sentence state in open court what he/she considers to be the...

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