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DECISION
[1] In this matter we can give our decision now. This has been facilitated
by the fact that the course which we propose to take is one which is
recommended by Counsel for the Respondent and to which Counsel for the
Appellant has no objection. But quite apart from the fact that it is almost
in the nature of a consent order, it is what we consider to be the proper
course to take in this matter. The course is as follows.
[2] We quash the sentence of 20 years imprisonment imposed by the Court of
Appeal. We remit the matter for sentencing to Mr. Justice Worrell in the
High Court or if he is for any reason not available, to another judge of the
High Court. But it is important that if at all possible the matter should be
put before Mr. Justice Worrell who was the trial judge i.e. the judge who
presided at the trial. And thirdly, we order that a pre-sentencing report be
prepared and submitted as soon as possible to Mr. Justice Worrell for use at
the sentencing hearing.
[3] We will give our reasons more fully in writing on a date to be fixed but
I can indicate briefly the reasons for our decision. We consider that the
Court of Appeal's decision ought not to stand for the following reasons.
First, because of the omission of that court to give Counsel for the
Appellant an opportunity to be heard on the question of sentence before it
made its order of imprisonment for 20 years.
[4] Secondly, we think that although it was within the power of the Court of
Appeal to dispense with a pre-sentencing report, there was no good reason in
this case for doing so. In the words of Mr. Thorne, Counsel for the
Appellant, such a report would have been 'of high value' in this case. While
we do not necessarily adopt that view, we think that it certainly could have
been quite helpful and therefore such a report ought to have been obtained.
[5] Thirdly, there is the fact that the Court of Appeal was not in a
position to make certain findings of fact which had to be made in order to
arrive at a proper determination of sentence. The evidence which was led at
the trial was by no means consistent. There was conflict between, for
instance, the evidence of the two eye witnesses and the statement given by
the accused to the police which was put into evidence, and the fact that the
Appellant was convicted of manslaughter did not of itself resolve some of
those conflicts. Therefore it would be important for the sentencing court to
be able to make the necessary findings of fact in order to assist it in
arriving at the right sentence. For that reason we consider that the matter
should have been referred by the Court of Appeal to Mr. Justice Worrell for
sentence in the first instance.
[6] Fourthly, there is the fact that the requirement of the Penal System
Reform Act Cap.139 is that if a custodial sentence is imposed, the reason
for it should be explained by the sentencing court to the accused in open
court. That may, in the context of a manslaughter case perhaps be a
technical requirement and one which Counsel for the Appellant was prepared
to waive in an effort to persuade this Court to substitute its own sentence.
But it was a requirement which was not observed in the Court of Appeal and
we think that it is important for the provisions of the Act to be
scrupulously observed.
[7] The last point which we would note, is that in relation to the
justification for a custodial sentence, the Act specifies two grounds on
which such a sentence may be justified. One has to do with the seriousness
of the offence and the other with the need to protect society from the
offender. Now in the context of this case it may be obvious that the first
of these requirements was satisfied, but nonetheless we wish to draw
attention to the fact that these are independent and separate grounds for
ordering a custodial sentence and a court which is imposing such a sentence
ought to indicate quite expressly which of these two grounds is being relied
on or if both are, then to so indicate, and also to give reasons for its
decision.
[8] That is as far as I would go at this time, but these matters will be
dealt with perhaps a little more comprehensively and cohesively in the
written judgment which will follow in due course. We thank Counsel for their
assistance in this matter. |
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