The State v Gangadeen Tahaloo
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Sherene Murray-Bailey |
| Judgment Date | 28 July 2023 |
| Neutral Citation | TT 2023 HC 224 |
| Docket Number | No. CR-HC-POS-IND-220-s2023-1 CR 0003/2017 |
| Court | High Court (Trinidad and Tobago) |
For
Murder
The Honourable Madame Justice Sherene Murray-Bailey
No. CR-HC-POS-IND-220-s2023-1 CR 0003/2017
IN THE HIGH COURT OF JUSTICE
CRIMINAL DIVISION
Ms. Kezia Gray-Birkette and Ms. Kateisha Ambrose-Persadsingh for the State
Mr. Ravi Rajah instructed by Ms. Khadijah Sinanan for the Accused
Murder is a serious offence, the abhorrence for which is reflected in the mandatory death sentence which attaches to the crime. Its prevalence in Trinidad and Tobago is well documented and rearing its head with a degree of prevalence that must be depreciated in the strongest of terms is murder emerging from intimate partner violence. One cannot be oblivious to the upsurge of violence against women.
This is the backdrop against which this re-sentencing exercise is undertaken. Janetta Peters (“the deceased”) was the Prisoner's wife with whom he shared a child.
Three aggravating factors emerge immediately upon consideration of the factual matrix of this case: the seriousness of the offence of murder, its prevalence in our society, together with a murder committed against someone with whom the Prisoner was involved in an intimate partner relationship.
This was a ghastly murder.
On the afternoon of Sunday 10th November 1991 Police Constable Quashie went to Da Costa's Garment store at the corner of Duke and Henry Street and sought information about the deceased. The Prisoner told Police Constable Quashie that she was his wife and she was supposed to be at home. Eventually he told Officer Quashie that he had killed her and the Prisoner showed the Officer some of the parts of the deceased's body which were on the premises.
The Prisoner gave a statement under caution to the police on the 10th December 1991, in which he said that on the morning of that day, at about 6:30 am, the deceased visited him at his place of work at Da Costa's. According to the Prisoner, when he asked her what she was doing there so early, she said she wanted to finish selling early. She changed her clothes, and he asked her why she had not done so at home. She left and returned at about 10:30 am. He asked her whether she had been sleeping out again. She told him, referring to their eight (8) year old child T, that the child was not his and that the father of the child was around.
The Prisoner said there was some “hard talk” between them; he pushed her; she hit her head and started to tremble. He picked her up and carried her by the pipe, gave her water and he put her to sit down by the doorway. He then took up a cutlass and gave her several chops. After he had done so, he had a rest. When he awoke, he put the body “on the back”. That, in summary was the extent of the statement from the Prisoner and there was no challenge to its voluntariness.
Evidence emerged that portions of the deceased's body — the head, the upper and lower arms and her clothing were found in the East Dry River. The other parts were at Da Costa's Garment store.
The dismembered body of the deceased, contained in four (4) crocus bags and a bucket holding her entrails were re-assembled by Dr. Chandulal at the Forensic Science Centre on the 11th November 1991 and identified by the deceased's two children.
The Prisoner, Gangadeen Tahaloo was tried and convicted of the murder of the deceased on 26th May 1995. After a retrial, on the 19th November 1997, he was sentenced to death by hanging. For reasons which I will now outline, he is now before the Court to be re-sentenced.
Sentenced to death by hanging on the 19th November 1997, the presumptive period established in Pratt and Morgan v The Attorney General for Jamaica 1 elapsed without the State taking action and the Prisoner remained on death row.
The Prisoner, being a person to whom the decision of Andrew Dottin, Mark Teeluck, Ramsingh Jairam, Kelvin Jairam v John Rougier (Commissioner of Prisons), Evelyn Peterson (Registrar of the Supreme Court) and Attorney General of Trinidad and Tobago 2 applied, was bound by the decision and his sentence was commuted to life imprisonment on 19th August 2008.
At this juncture, it is appropriate to pause and to digress into the Court of Appeal decision of Naresh Boodram v The Attorney General of Trinidad and Tobago 3. This is necessary to
Since Pratt and Morgan 4, the courts had routinely commuted the death sentence to one of life imprisonment. The appellant in Naresh Boodram 5 challenged this quotidian commutation arguing that the court has and should exercise its unfettered discretion to sentence.
The Court of Appeal considered the issue raised in Naresh Boodram 6 to be of significance and of general constitutional importance in light of the current focus on restorative justice and prison reform. It was held that a court in exercising its original jurisdiction under section 14 of the Constitution has the discretion to take into account normal sentencing factors on the vacating of the death sentence. Moreover, the Court of Appeal sought to make it clear that although the expression “judicial commutation” has been used, the court, in fashioning a remedy under section 14, is not engaged in the exercise of the prerogative of mercy. It is in fact re-sentencing the applicant in recognition of the fact that he has already been punished by reason of having endured the mental anguish of being on death row for an inordinately long period. The Court must therefore ask itself, what additional punishment, if any, would be appropriate in the particular circumstances.
Naresh Boodram withstood challenge 7 and it is against this backdrop that the Prisoner now stands before the Court to be re-sentenced.
The Court turns now to the aims of sentencing and the sentencing methodology. Authorities are well-settled as to the aims of sentencing. Nevertheless for transparency and in an attempt
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i. The retributive or denunciatory, which is the same as the punitive;
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ii. The deterrent vis-à-vis potential offenders;
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iii. The deterrent vis-à-vis the particular offender then being sentenced;
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iv. The preventative, which aims at preventing the particular offender from again offending by incarcerating him for a long period; and
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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.
The Court has 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, Bali and Ayow v The State 9. The overall sentencing structure is set out as follows:
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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 its seriousness, that is the degree of the harmfulness of the offence;
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ii. An appropriate 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;
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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
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iv. Credit for the period of time spent in pre-trial custody.
In Aguillera et al 10, the Court of Appeal established with clarity what was meant by the term “starting point” in sentencing. The Court of Appeal was in agreement with R v Taueki 11 a decision of the Court of Appeal of New Zealand, where it was clarified that the “starting point” should be understood as the sentence appropriate when aggravating and mitigating circumstances relating to the offending are taken into account, but excluding aggravating and mitigating features personal to the offender.
The Court is guided by the learning at paragraph 28 of Taueki 12 which states as follows:
“ Setting the appropriate starting point for sentencing will involve an assessment of a number of features which add to or reduce the seriousness of the conduct and the criminality involved. As this Court noted in Mako, it is the particular combination of those variable features which requires assessment for sentencing in each case. The Court went on to say: “…..the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgment calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed.”
It is pellucid from Naresh Boodram 13 that the sentence of life imprisonment should not be imposed ‘carte blanche’ upon every person who has had their sentence commuted because that is inherently arbitrary and potentially disproportionate. The circumstances of each murder are different and the Court properly seized of the relevant facts would be able to substitute the appropriate sentence.
In the Court's view, Naresh Boodram 14 marries well with the Aguillera principles 15 which in broad terms foster a philosophy of weighing aggravating and mitigating circumstances of each offence and each offender for...
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