Ebanks (PG) v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 02 September 2009
• Date: 02 September 2009
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

P.G. EBANKS

and

R.

A. Akiwumi for the appellant;

T.N. Ward, Senior Crown Counsel, for the Crown.

Case cited:

(1) Hydes v. R., 2007 CILR 152, considered.

Criminal Procedure-sentence-indeterminate sentence-release hearing-test to apply at hearing to determine whether to release offender serving indeterminate sentence is whether court satisfied offender”s confinement no longer necessary for protection of public by assessing whether risk more than minimal-factors to consider

Criminal Procedure-sentence-indeterminate sentence-release hearing-if application for release refused, re-application should only be made if process of successful rehabilitation started (e.g. offender taking advantage of rehabilitative facilities)

The appellant was charged in the Grand Court with murder.

The appellant was convicted of murder in 1989 and, since he was 17 at the time of the offence, he was sentenced to be detained ‘during the Governor”s pleasure.’ Following a decision in 2007 (Hydes v. R., 2007 CILR 152), which determined that such a sentence was unconstitutional, the phrasing of his sentence was subsequently changed so that he would be detained ‘at the court”s pleasure.’ The appellant now sought his release from prison.

At a case management hearing, the Grand Court (Henderson, J.) outlined (in proceedings noted at 2007 CILR N [18]) the test which the court should consider when deciding whether to release a person serving an indeterminate sentence and the list of factors to which it should have regard in making its decision. At the release hearing which followed, the court applied these guidelines to the appellant”s case, refused his application for release and ruled that he would be able to re-apply for a new hearing in two years.

On appeal, the appellant sought orders that (a) the decision of the Grand Court that he was not ready for release be set aside and his immediate release granted; and (b) in the alternative, that he should be able to re-apply for release earlier than the two years specified by the Grand Court.

Held, dismissing the appeal against refusal of release but allowing the appellant immediately to re-apply for release:

(1) In the absence of guidelines issued by the Chief Justice, the court

would approve the test outlined in the Grand Court for determining whether to release a prisoner serving an indeterminate sentence. It entertained doubts whether it was entitled by statute to consider an appeal from such an application but concluded that the interests of justice required it to review the decision of the Grand Court-which it would do on the basis that it was an appeal against an order of that court. The court would need to consider whether it was satisfied that his detention was no longer necessary for the protection of the public by assessing whether the risk to the public was more than minimal. In making its decision, and affirming the case management procedure established in the Grand Court, the court would have to consider evidence relating to, but not limited to, the following factors: (i) the nature and circumstances of the offence; (ii) any comments made by the sentencing judge about the need to protect the public and any recommendation about a minimum sentence to be served before re-hearing an application; (iii) the background of the offender, including the nature and circumstances of previous offences; (iv) whether he had made positive and successful efforts to address his attitude and behavioural problems which had contributed to his committing the offence; (v) his attitude and behaviour towards other prisoners and prison staff, including any disciplinary offences committed in prison; (vi) the opinion of the prison service on the degree of risk to the public in releasing him; (vii) a recent...