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COMMONWEALTH OF DOMINICA

IN THE COURT OF APPEAL


MCRAP 2010/009
BETWEEN:
[1] SHANE GRAHAM
[2] RAY JNO. BAPTISTE

Appellants

and
THE POLICE

Respondent

Before:
The Hon. Mde. Ola Mae Edwards
The Hon. Mde. Janice George-Creque
The Hon. Mr. Michael Gordon

Justice of Appeal
Justice of Appeal
Justice of appeal [Ag.]

Appearances:
Mr. Lennox Lawrence for the Appellants
Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent
MCRAP 2010/011
BETWEEN:
EMMANUEL AZILLE

Appellant

and
THE POLICE

Respondent
Before:

The Hon. Mde. Ola Mae Edwards


The Hon. Mde. Janice George-Creque
The Hon. Mr. Michael Gordon

Justice of Appeal
Justice of Appeal
Justice of appeal [Ag.]

Appearances:
Mr. Levi Peter for the Appellant
Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent

MCRAP 2010/013
BETWEEN:
JULLIEN HAMILTON
Appellant
and
THE POLICE
Respondent
Before:

The Hon. Mde. Ola Mae Edwards


The Hon. Mde. Janice George-Creque
The Hon. Mr. Michael Gordon

Justice of Appeal
Justice of Appeal
Justice of appeal [Ag.]

Appearances:
Mr. Julien Prevost for the Appellant
Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent
MCRAP 2010/014
BETWEEN:
ROBIN DANIEL
Appellant
and
THE POLICE

Respondent

Before:
The Hon. Mde. Ola Mae Edwards
The Hon. Mde. Janice George-Creque
The Hon. Mr. Michael Gordon

Justice of Appeal
Justice of Appeal
Justice of appeal [Ag.]

Appearances:
Mr. Levi Peter for the Appellant
Mr. Gene Pestaina, DPP and Mr. Wayne Norde for the Respondent
____________________________
2009: April 20, 21;
2010: September 13.
__________________________

Criminal Law- Procedure to be followed when taking and recording pleas - Treatment of a
guilty plea when evidence points to the contrary - Severity, consistency and lawfulness of
sentencing - Failure of Magistrate to provide reasons for decision - Due processMagistrates power to award compensation - Principles governing sentencing - Magistrates
Code of Procedure Act, Cap 4:20, 1990 Revised Laws of Commonwealth of Dominica.
In four separate matters heard in the Magistrates Court, the appellants were convicted of
various offences including possession of and intent to supply cannabis, wounding, battery,
malicious damage and carrying an offensive weapon. The appellants were sentenced in
some cases to fines to be paid within limited time frames and in default, imprisonment
terms which were, save for one matter, all in excess of the maximum default term
stipulated by the Magistrates Code of Procedure Act and in another case ordered to run
consecutively, also contrary to the Act. Reasons for the decisions were not provided by
the Magistrates. In one of the matters, although the appellant entered a guilty plea, upon
giving evidence it was apparent that the guilty plea was equivocal. The Magistrate
however convicted the appellant on the plea entered. The appellants have appealed the
decisions for the above reasons and in addition question the overall fairness of the trial
process.
Held: allowing the appeals, ordering the convictions and sentences in respect of Shane
Graham, Emanuel Azille, Julien Hamilton and Robin Daniel be set aside and new trials
conducted before a different Magistrate; setting aside the sentences of Ray Jno Baptiste
and ordering that he be taken back before the Magistrate having conduct of the trial of
Shane Graham for sentencing.
1. In the case against Shane Graham and Ray Jno. Baptiste, taking into
consideration the fact that (1) the appellants were made to answer the charge on
the same day of their arrest. (2) the appellants were unrepresented, (3) the
substances found in the possession of the appellants had not at the time of the
hearing been certified as controlled drugs and (4) the Magistrate, upon hearing the
facts as given by the prosecution ought to have entered a plea of not guilty in
respect of Shane Graham and tried the matter. That the convictions and
sentences of Shane Graham be set aside and a new trial be conducted, and the
sentence of Ray Jno. Baptiste be set aside and the matter be remitted to a
different Magistrate for proper sentencing.
Lewis v COP (1969) 13 WIR 186 followed; Regina v Blanford Justices, Ex
parte G [1967] 1 Q.B. 82 applied.
2. The Magistrates Code of Procedure Act mandates that written reasons be given
by Magistrates for their decisions. The failure of the Magistrates to provide
reasons for the decision in the appeals for Azille, Hamilton and Daniel was
critical particularly because there were considerable conflicts on the evidence and
accordingly the credibility of witnesses was in issue. This therefore led to the
inevitable result that the conviction and sentences be quashed and new trials
ordered.
3

Forbes v Chandrabhan Maharaj (1998) 52 WIR 487 followed; Alexander v


Williams (1984) 34 WIR 340 applied.
3. In respect of the appellant Daniel, there was a failure of due process by the
Magistrates failure to (1) inquire as to whether or not the defendant wished to
obtain legal representation, (2) inquire whether the appellant, who was
unrepresented, wished to call witnesses, (3) inform the appellant of the various
stages of the trial and the choices open to him at each stage and (4) provide
written reasons for the decision.
4. The Magistrates ordered appellants Azille and Daniel to pay compensation,
however this was not done in accordance with the Magistrates Code of
Procedure Act in that there is no record that these orders were made with the
injured parties consent, or that the injured parties were given sufficient information
which would allow them to make an informed decision as to whether or not to
consent. Further, in the Daniel matter the Magistrate, in the absence of medical
or any evidence, proceeded to award a sum in respect of various medical
procedures. For these reasons the compensation order was set aside.
5. The sentence imposed on the appellant Ray Jno. Baptiste was not done in
accordance with the law or the established principles governing sentencing.
Consequently the sentence must be set aside and the matter remitted to a
different Magistrate for proper sentencing.
JUDGMENT
[1]

GEORGE-CREQUE, J.A.: At the hearing of these appeals it was decided to


consolidate them for the purpose of rendering a written judgment which would
provide future guidance to Magistrates in respect of procedures to be followed in
respect of the taking and recording of pleas, sentencing and the provision of
reasons for decisions and at all stages of the proceedings to ensure the fairness of
the trial process. This is in the hope that Magistrates, notwithstanding their
workload, would keep in the forefront of their minds the overarching requirement of
ensuring due process as a necessary function of the administration of justice in
any proceeding. A case summary of each matter is set out:

Appeal No. 9 of 2010 - Shane Graham and Ray Jno. Baptiste


[2]

On 4th June, 2009, Shane Graham (SG) and Ray Jno. Baptiste (RJ) were arrested
and charged with offences under the Drugs (Prevention of Misuse) Act1 of
Dominica following a search carried out on the premises of RJ on the same day.
SG was charged on complaints Nos. 1329 and 1330, for being in possession of
cannabis (200 grams) with intent to supply, and possession of cannabis
respectively, and, on complaint Nos. 1331 and 1332 jointly with RJ, for possession
of cannabis (100 grams) with intent to supply and for cultivation of cannabis. RJ
was also charged on complaint No. 1336 for possession of cannabis seeds (200
grams) with intent to supply.

[3]

They were brought before the Magistrate to answer the charges on the same day.
The endorsement at the back of each complaint carries a notation to the effect that
each appellant, elected summary trial and each pleaded guilty on each complaint.
At that point, the hearing was adjourned to 8th June 2009 at which time the matters
came up before a different Magistrate. The prosecuting officer set out the facts
giving rise to each charge. With regard to the 200 grams of cannabis seeds found
in a bucket on a step leading up to the house, SG said he didnt know about it, as
he was only sleeping at the house. In relation to the Cannabis seedlings and
plants and cannabis found in a small house in the yard, SG said: all is not mine is
Ray that living there. On meeting up with RJ the police, showed and questioned
him about the drugs and RJ replied: yes it is mine.

[4]

On complaint No. 1332, SG and RJ were each sentenced to a fine of $40,000.00


to be paid by 12th June 2010 (some four days after the trial) and in default to three
years imprisonment. On complaint No. 1331, SG and RJ were each sentenced to
a fine of $5,000.00 to be paid by 30th July 2009 and in default to six months
imprisonment. On complaint No. 1330, SG was sentenced to a fine of $10,000.00
to be paid by 30th December 2009 and in default two years imprisonment. On
complaint No. 1329, SG was fined $15,000.00 to be paid by 30th January 2010

Chap 40:07 1990 Revised Laws of Commonwealth of Dominica

and in default two years imprisonment. All default sentence terms were stated to
run consecutively so that in effect for SG the total default prison term was seven
years six months and for RJ, five years six months. There were no reasons given
showing what considerations informed the Magistrate in imposing the sentences
he did. Further, there is no indication that any examination of means of the
appellants was carried out to show their ability to satisfy the fines imposed or the
deadlines for payment.
Appeal No. 11/2010 Emmanuel Azille
[5]

The appellant was tried on four complaints in 2009, namely numbers: 1289
(carrying an offensive weapon a knife), 1292 (wounding), 1307 (battery) and
1308 (carrying an offensive weapon - stones) in relation to an incident with one
Stephen Andre on 31st May 2009. He pleaded not guilty, on 2nd June 2009 and
was convicted on all four charges all within a space of three days. On charge
No. 1289 he was sentenced to one year imprisonment and also ordered to pay
compensation to the virtual complainant in the sum of $3,000 by 18th December
2009 and in default one year imprisonment; on charge No. 1308 to six months
imprisonment; on charge No. 1292 to two years imprisonment, and on charge No.
1307 to six months imprisonment. The sentences were made to run concurrently.
There was also the notation in the record to this effect: The aggravating factor is
that you commit these offences while on bail for drug offences No reasons are
provided as to the basis for the convictions and save for the statement as to what
the Learned Magistrate considered as an aggravating factor, (which was a wholly
irrelevant consideration) the record is devoid of any matters considered by the
Magistrate in imposing sentence or for ordering compensation.
Appeal No. 13/2010 Julien Hamilton

[6]

The appellant was charged on two complaints Nos. 738/2008 (battery), and
739/2008 (malicious damage) in relation to an incident occurring on 30th July 2008
involving the virtual complainant, one Christaline Vidal. He pleaded not guilty and
was tried and convicted on both counts. It is not stated on the notes of the
6

proceedings the date on which the trial took place.

But in the Learned

Magistrates reasons for decision it may be inferred that it was on 9th July, 2009.
On the battery charge he was fined $2,500.00 to be paid by 31st January 2010, in
default 6 months. On the charge for malicious damage he was fined $750.00 to
be paid by January 31st 2010; in default 4 months imprisonment the default terms
to run concurrently. In her reasons for decision the Learned Magistrate explained
why the trial was conducted in the absence of the appellants counsel and stated
that no issues of law arose with which the appellant needed to deal with and that
all rules of law and evidence were applied to the trial.
Appeal No. 14/2010 Robin Daniel
[7]

The appellant was charged on complaint No. 729/2008 for battery upon Police
Constable Georges on 18th October 2008. He was summoned only on the day
prior to the hearing on 8th June 2009. On 8th June 2009 he pleaded not guilty and
was tried, convicted and sentenced to a fine of $1000.00 to be paid by 30th
December 2009 in default one month imprisonment. In addition he was ordered to
pay compensation in the sum of $2,500.00 in respect of medical services such as
scans, x-rays, apparently directed by the Learned Magistrate, to be paid by 31st
August 2009; in default 3 months imprisonment. No reason is given for the
conviction, and in relation to sentencing the record bears the notation no previous
conviction and a note to the effect that the appellant was responsible for 3
children ranging in age from 2 years to 11 years.
The grounds of appeal

[8]

The first listed appeal raises the issue as to the treatment of a guilty plea which
on the facts as disclosed or as explained points to the contrary. All four appeals
however raise common challenges in respect of:
(a)

the failure of the Magistrate to provide reasons for his/her decision;

(b)

the severity/consistency of the sentences and / or the lawfulness of


the sentences imposed;

(c)

the overall fairness of the trial process.


7

I propose to treat with the matters raised in the same order save that I consider
that (a) and (c) may be conveniently considered together being, in essence, two
sides of the same coin of the universal and fundamental principle of due process.
The Guilty plea
[9]

In appeal No. 9/2010, counsel submitted that a plea of guilty must be unequivocal.
This is a well settled principle2. The dictum of Widgery J in Regina v Blandford
Justices, Ex parte G3 at page 90 is quite apt in explaining this statement. I adopt
it in its totality and recite it:
In every instance when a Magistrate receives the reply Guilty to the
common form question asking the defendant to plead, it is necessary for
the Magistrate to consider whether it is safe to accept the plea and enter a
conviction. in cases where the defendant is not represented or where
the defendant is of tender age or for any other reasons there must
necessarily be doubts as to his ability finally to decide whether he is guilty
or not, the Magistrate ought, in my judgment, to accept the plea, as it
were, provisionally, and not at that stage enter a conviction. He ought, in
my judgment, in these cases to defer a final acceptance of the plea until
he has had a chance to learn a bit more about the case, and to see
whether there is some undisclosed factor which may render the
unequivocal plea of guilty a misleading one. I have no doubt experienced
Magistrates in fact do in these cases wait until they have heard the facts
outlined by the prosecution and wait until they have heard something of
what the accused has to say. If at that stage the Magistrate feels that
nothing has been disclosed to throw doubts on the correctness of the plea
of guilty, he properly accepts it, enters a conviction and that is the end of
the matter so far as this point is concerned. If however, before he reaches
that stage he finds that there are elements in the case which indicate that
the accused is really trying to plead not guilty or, as Lord Goddard C.J. put
it, Guilty, but, then the Magistrate has, in my judgment, no discretion, but
must treat the plea for what it is, namely, a plea of not guilty.

[10]

In the instant case, the appellants counsel say that the facts as given by the
police showed that the guilty plea was not unequivocal as appellant SG stated that
he didnt know anything about the plastic bucket with the cannabis weeds and
seeds; that he was only sleeping at the house and later when the plants and

2
3

See: Regina v Durham Quarter Sessions Ex parte Virgo [1952] 2 Q.B. 1 at p. 2


[1967] 1Q.B. 82

seedlings were found in a part of the yard and additional substance found in a
small house having responded all is not mine, is Ray that living there coupled
with the fact that when RJ was shown the substance he said yes its mine.
Accordingly he submits that a Not guilty plea should have been entered. In
addition, he relies on the case of Lewis v Commissioner of Police4, a decision of
the High Court of Grenada, in which the defendant pleaded guilty to a charge of
assault but after the prosecution stated the facts and the defendant gave his
version of the facts, the plea, in effect, amounted to a plea of Not Guilty. The
Magistrate nevertheless convicted him on his plea as entered. The court held that
this was wholly wrong and that the Magistrate should have entered a plea of not
guilty and tried the case. The conviction and sentence were set aside and a new
trial ordered.
[11]

When one takes into account the facts of this case, in particular the speed in which
the appellants were made to answer to the charges being the very same date of
arrest, unrepresented by counsel, and at the stage when the very substances
found had not been certified as a controlled drug, one cannot but agree with
counsel for the appellant that the plea was not unequivocal given the very facts
stated by the prosecution and the attendant circumstances. The Magistrate
having heard those facts ought to have entered on behalf of the appellant SG a
plea of Not guilty and proceed to try the case. On this basis alone I would set
aside the convictions and sentences and order a new trial in respect of SG.
Reasons for decision the requirement

[12]

On this aspect, challenges regarding reasons normally arise in two ways: (i) where
a Magistrate has provided no reasons at all which is usually straight forward, or (ii)
where it is said that the reasons furnished are inadequate which may call for more
detailed analysis. The Magistrates Code of Procedure Act5 of the

4
5

(1969) 13 WIR 186


Chap: 4:20 1990 Revised Laws of Commonwealth of Dominica

Commonwealth of Dominica mandates that written reasons be given. S.146(1) of


that Act states as follows:
The Magistrate shall record the reasons for the judgment in writing and
shall sign the same at the time of pronouncing the judgment and within
fourteen days of the pronouncement of the judgment appealed against
shall cause the reasons to be transmitted to the registrar of the high court
and they shall be included and form part of the record of appeal.
[13]

Even where there is no such legislative provision in some jurisdictions; the


requirement to give reasons is regarded as a rule of law. In Alexander v
Williams6, the court of appeal of Trinidad and Tobago, whilst recognising that
there was no legislative provision mandating a Magistrate to give reasons for his
decision, held that it was a rule of law that in criminal proceedings a Magistrate
must provide his reasons when the defendant had lodged an appeal against his
decision, and that furthermore, in cases involving the liberty of the subject, the
furnishing of reasons by a Magistrate in cases against which appeals have been
lodged was an indispensable requirement of due process. Bernard JA, at page
344 stated that the practice for so doing in matters of appeal has so grown up
and been adhered to over the years and has become so rooted in our system of
justice that, in my opinion, it can now be regarded as a rule of law

[14]

In Forbes v Chandrabhan Maharaj,7 a decision of the Privy Council, on appeal


from the Court of Appeal of Trinidad and Tobago, the case of Alexander was
considered and referred to in the judgment delivered by Lord Clyde on behalf of
the Board. Lord Clyde at page 489 referring to Alexander, had this to say:
The judgments in that case clearly recognise the fundamental importance
of furnishing reasons particularly in circumstances where the deprivation
of liberty is at stake
The question as to whether failure to provide reasons would be fatal to a
conviction was not resolved but Lord Clyde went on to say this:
It is sufficient to observe that without the statement of reasons it will
usually be impossible to know whether the magistrate has misdirected

6
7

(1984) 34 WIR 340


(1998) 52 WIR 487

10

himself on the law or misunderstood or misapplied the evidence. The


absence of reasons at the least enables the appellant to argue from a
strong position that there cannot have been a sound reason for the
decision in issue.
But even if cases may occur where the failure is not fatal, their Lordships
are satisfied that the Court of Appeal was in error in proceeding to review
the record in order, as they put it, to see If there is sufficient evidence
upon which the Magistrate could have come to the conclusion at which he
arrived That places too low a threshold for the upholding of the
conviction. If it is to be construed as seeking to reflect the proper
standard for determining an appeal, it takes no account of the very real
problems of the conflicts of evidence which existed in the case and the
critical matters of credibility which required to be decided in it in the
absence of reasons in the present case it may be unsafe to draw
conclusions merely from the decision itself and it may be dangerous to
speculate on what may or may not have been the factual conclusions
which the magistrate drew from the conflicting evidence before him
[15]

These observations, to my mind, offer sound guidance in the approach to be


adopted by an appellate court faced with an appeal where the record shows
conflicting evidence or versions of events and on which the credibility of witnesses
takes centre stage in the absence of any reasons by the Magistrate which would
inform the basis for his decision. It would, in my view, be difficult to envisage a
case where in those circumstances a quashing of the conviction would not be the
inevitable result.

[16]

The Azille, Hamilton, and Daniel appeals all involve considerable conflicts on the
evidence. In Azille and Daniel, no reasons whatsoever have been provided. In
the case of Hamilton, the Magistrate provided in her

reasons

for

decision

reasons as to why she proceeded to try the case in the absence of the defendants
counsel but I agree with counsel that no reason has been provided showing the
basis on which she arrived at her decision to convict. That, to my mind is
tantamount to failing to provide a reason for her decision. In the absence of
reasons it may reasonably be concluded that no sound basis for the decision
exists. Further, bearing in mind the observations of Lord Clyde in Forbes, this
court would be hard put in seeking to resolve the conflicts on the evidence in

11

particular since matters of credibility come into sharp focus. This quandary, in my
view, leads to the ineluctable result that the convictions and sentences must be
quashed and new trials ordered.
Procedural fairness due process
[17]

In the Daniel appeal counsel Mr. Peter raised in addition the issues that the
defendant had not been given sufficient time to obtain legal representation and
prepare for trial on account of short service and also the fact that the appellant
was not given an opportunity to call his witnesses who were waiting to be called
and that rather the learned Magistrate simply proceeded after the defendant gave
his evidence to conviction and sentencing. The record does not show that the
appellant asked for time to instruct counsel. But this may be of little moment when
one considers that a first time unrepresented defendant may be wholly unaware or
may not necessarily be focused on such rights in a criminal trial. Worse yet, as
here where the appellant was summoned on the eve of the hearing. It is common
practice for experienced Magistrates to inquire whether a defendant has or wishes
to have legal representation and if necessary to allow reasonable time to obtain
legal representation. This approach should commend itself to all Magistrates in
ensuring due process. It cannot be said that this was the approach taken here.
Similarly, the record does not indicate whether inquiries were made of the
appellant as to whether he wished to call witnesses.8 Mr. Daniel also complains
that he was not given an opportunity to be heard in mitigation of sentence. The
record is also silent in this regard. The sentencing stage is as much a part of the
criminal trial process as any other stage. Unrepresented lay persons are more
often than not totally unfamiliar with court procedures. As a defendant in a
criminal trial, natural anxiety over being charged with an offence enters the mix. In
my view, it is only right for a Magistrate conducting a criminal trial to inform an
unrepresented defendant of the choices open to him at the various stages of the
trial process. Anything less must certainly adversely impact on the fairness of the
trial and when all of these failures including the failure to give reasons are

See: s. 76 Magistrates Code of Procedure Act as to the procedure to be followed on a trial.

12

considered in the round, it gives rise to the very serious and fundamental concern
as to whether the appellant was afforded due process. In this regard I wish to
borrow from the dictum of Fraser JA in Nelson v Superville et al9 where at page
492 he had this to say:
There is no doubt that the work of Magistrates has increased as a direct
result of the increase in criminal activity of one kind or another. This is a
factor which, in some cases, might excuse the delay in the completion of
records of appeals; but the increase in a Magistrates work must never be
invoked to excuse a slipshod approach to the administration of justice.
The vast majority of people who have cause to be parties to litigation
obtain their justice in the summary courts. For this reason it is
indispensably necessary that every Magistrate should be alive to the
heavy responsibility he bears and should always endeavour to let it be
seen that justice is being done; in short, that every man gets his due,
whether he be complainant or defendant, plaintiff or policeman. In order
to do so he must observe the essentials of a fair hearing; understand the
principles governing the admissibility and probative value of evidence; and
when required, record intelligently the reasons for his decision.
[18]

This statement by Fraser JA in 1971 carries, in my view, equal or even greater


force today. I would add this caveat: In Dominica, a Magistrate is always
required to record his reasons for decision. The provision of the Magistrates
Code of Procedure Act so requiring is in mandatory terms. I would venture
further to say that in those states and territories where no legislative provision
exists (and I believe that would be few), the requirement to give reasons may be
considered to be a rule of law, or, put another way, an essential ingredient of due
process. The right to a fair hearing is a constitutionally guaranteed right.10
The sentences

[19]

I have already opined to the effect that the convictions in these cases ought to be
quashed save in the case of Ray Jno. Baptiste whose sentence I will address
separately. Consequently, subject to the qualification in respect of Mr. Jno.
Baptiste, the sentences imposed would be set aside. Accordingly I do not propose
to deal generally with the severity of the sentences, but I do consider that

(1971) 19 WIR 491


See: section 8 of the Constitution of The Commonwealth of Dominica

10

13

something should be said in respect of the lawfulness and / or appropriateness of


some of the sentences imposed as a matter of general principle. In appeal 9/
2010, SG and RJ were ordered to pay fines in respect of each drug offence
ranging from $5,000 to $40,000 with default terms of imprisonment in excess of six
months save for complaint No. 1331.

Furthermore, the default terms were

expressed to run consecutively.


[20]

In relation to a s 7(2) drug offence (simple possession), the Drug Prevention and
Misuse Act, an offender is liable, on summary conviction to a fine $50,000 and to
one year imprisonment. On a s. 7(3) offence (possession with intent to supply),
and a s. 8(3) offence (cultivation), the liability for punishment is $100,000.00 and
three years. There are several matters wrong with the sentencing approach taken
by the Magistrate:
(a)

there is no indication as to whether the appellants were first time


offenders;

(b)

there is no indication of any reduction for the guilty plea;

(c)

there is no indication that the learned Magistrate conducted any


form of inquiry into the means of the appellants to determine
their ability to pay the fines within the time frames stipulated or at
all. [See: s. 104(1) Magistrates Code of Procedure Act];

(d)

the default imprisonment terms imposed, save in the case of


complaint 1331, were all in excess of the maximum default term
(six months) stipulated by s. 105 and thus in contravention of the
Magistrates Code of Procedure Act. A fortiori, the provision for
the default terms run to consecutively, the net effect of which is an
imprisonment term, in the case of SG, of 71/2 years and in the
case of RJ, 51/2 years, is also contrary to the Magistrates Code
of Procedure Act.

It can only be inferred given these shortcomings that the sentencing exercise was
not in accordance with law or the well established principles governing sentencing

14

on any view. Byron CJ in Desmond Baptiste et al11 a consolidation of twelve


Magisterial appeals and one High Court appeal, set out the approach which should
be adopted by a sentencer as well as provided some sentencing guidelines in
respect of various types of offences. Any sentencer would do well to adhere to
this approach and have due regard to the guidelines. By this I am not to be taken
as advocating a slavish approach in the application of the guidelines. As Byron CJ
himself in Baptiste [para. 3] stated: A sentencing range should not obviate the
need for the sentencer to fully consider the host of aggravating or mitigating
factors that might accompany any particular crime
In short a rational basis must be discerned for the particular sentence imposed.
Sentencing is and must be seen and approached, in the same manner as any
other stage of the trial, as a function of due process.
[21]

Another general observation I wish to make relates to substantive punishments in


respect of each of the offences without any consideration as to whether, the
offences may have arisen out of the same facts. For example, SG was charged
with simple possession in respect of the same drugs for which he was charged
with possession with intent to supply. The offences all arose out of

the

same

facts and circumstances. Yet he was sentenced to substantial penalties on both:


on the possession charge in the sum of $10,000.00 and in default 2 years, and
on the intent to supply charge, $15,000.00 and two years. This court has on
many occasions denounced this approach as being wrong and in my view unfair.
In DPP v Stewart12 the Privy Council affirmed the inappropriateness of this
approach and held that where a defendant was convicted on two counts arising
out of the same facts, as a matter of principle, substantial penalties should not be
imposed on both counts. Indeed I have grave doubts, in the case of SG and RJ,
of the appropriateness of the splitting of the possession charges into separate
offences when the offences arose out of the same facts and circumstances. The
11 Criminal Appeal No. 8 of 2003 (consolidated with 12 magisterial appeals) on sentencing Saint Vincent and
the Grenadines unreported
12 (1982) 35 WIR 296

15

fact that some of the drugs may have been found in a different part of the same
premises of the appellants does not affect the fact of possession of the various
quantities found on the premises.
Orders for compensation
[22]

Azille was not given the option of payment of a fine notwithstanding that all the
charges fell under the Small Charges Act13 which basically treat with offences
punishable with fines.14 In addition, Azille was ordered to pay compensation to
the virtual complainant. Daniel was also ordered to pay compensation. The
Magistrates power to award compensation is contained in section 109 of the
Magistrates Code of Procedure Act. It is not at large. S. 109 (1) states as
follows:
Any person who has been convicted of an offence in a magistrates court
may be ordered by the court to make compensation to any person who
was injured or who suffered loss by his offence but the court shall make
such an order only with the consent of the party injured or the party who
has suffered loss as a result of the offence.

[23]

The record in neither case discloses that the orders for compensation were made
with the injured partys consent or that they requested the making of such orders
or that any explanation was given to them enabling them to make an informed
decision as to whether to consent or not. In my view they ought to have been
told that the payment of such compensation is a bar to pursuing any further
proceedings (like damages in a civil action) in respect of the same loss or injury.
[See: s. 109(3)]. For this additional reason, the consent of the virtual complainants
could not be said to have been given.

[24]

A further observation on the compensation point must be made with regard to


Daniel. The Learned Magistrate, it appears, took on the personae of a medical
expert, and of his own motion directed the virtual complainant to obtain the costs
of scans and x rays and other medical services and then proceeded to award

13
14

Cap 10:39 1990 Revised Laws of Commonwealth of Dominica


See: the preamble to the Small Charges Act.

16

those costs without any evidential basis whatsoever, for this course. For this
reason also, the order for compensation cannot stand.
Sentence Ray Jno. Baptiste
[25]

There is no reason to upset the conviction of Ray Jno. Baptiste. Indeed counsels
challenge in relation to him relates to the unlawfulness and excessiveness of his
sentences.

The general observations I have made above with regard to

sentencing in relation to Shane Graham apply equally to Mr. Jno. Baptiste. This
leaves the question as to what is an appropriate sentence to be imposed on Mr.
Jno. Baptiste. He was convicted on two separate counts of possession apart from
the charge of cultivation, and sentenced on the possession charges to fines of
$5,000.00 and $12,000.00 to be paid by 30th July, and 30th November 2009
respectively. I have already opined on the lawfulness of the default imprisonment
terms and the appropriateness of the split counts of possession with intent to
supply on the facts of the case. This court was not placed in any position to
determine the means of Mr. Jno. Baptiste to pay the fines. I consider that the
appropriate course would be to set aside the sentences and remit the matters
back to a different Magistrate for a proper sentencing exercise to be carried out
with due regard to the guidance given herein.
[26]

By way of completeness I should note that the Learned Director of Public


Prosecutions offered no dissent to the challenges raised in these appeals.
Conclusion

[27]

For the reasons given above, I would allow the appeals and order that the
convictions and sentences in respect of Shane

Graham

(appeal

9/2010),

Emanuel Azille (appeal 11/2010), Julien Hamilton (appeal 13/2010) and Robin
Daniel (appeal 14/2010) be set aside and order new trials before a different
Magistrate. In respect of Ray Jno. Baptiste, I would set aside his sentences and
direct that he be taken back before the Magistrate having conduct of the trial of

17

Shane Graham to be duly sentenced at the appropriate time, in accordance with


the applicable sentencing principles.

Janice George Creque


Justice of Appeal
I concur .
Ola Mae Edwards
Justice of Appeal
I concur .

Michael Gordon, QC
Justice of Appeal [Ag.]

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