R v Anglin (D.)

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 09 February 2018
• Court: Grand Court (Cayman Islands)
• Date: 09 February 2018

Grand Court, Criminal Division (Cayman Islands)

(Smellie, C.J.)

R.

and

ANGLIN (D.)

C. Richards, Q.C., D.P.P., and E. Lees, Senior Crown Counsel, for the Crown;

J. Ryder, Q.C. and P. Bodden for the defendant.

Cases cited:

(1)Att. Gen.’s Ref. (No. 51 of 2013), [2013] EWCA Crim 1927; [2014] Cr. App. R. (S.) 83, referred to.

(2)Beckford v. R., [1988] A.C. 130; [1987] 3 All E.R. 425; (1987), 85 Cr. App. R. 378, referred to.

(3)Bowen (T.) v. R., 2009 CILR 246, considered.

(4)D.P.P. v. Morgan, [1976] A.C. 182; [1975] 2 All E.R. 347; (1975), 61 Cr. App. R. 136, referred to.

(5)R. v. Anglin (C.), Grand Ct., December 19th, 2016, unreported, applied.

(6)R. v. Bodden (T.), Grand Ct., May 12th, 2017, unreported, distinguished.

(7)R. v. Butler, Grand Ct., May 6th, 2016, unreported; noted at 2016 (1) CILR N [15], considered.

(8)R. v. Davies, [2008] EWCA Crim 1055; [2009] 1 Cr. App. R. (S.) 15; [2008] Crim. L.R. 733, applied.

(9)R. v. Kelly, [2000] Q.B. 198; [1999] 2 All E.R. 13; [1999] 2 Cr. App. R. 36; [1999] 2 Cr. App. R. (S.) 176; [1999] Crim. L.R. 240, dicta of Lord Bingham of Cornhill considered.

(10)R. v. Mayers, [2008] EWCA Crim 2989; [2009] 1 W.L.R. 1915; [2009] 1 Cr. App. R. 30; [2009] 2 All E.R. 145; [2009] Crim. L.R. 272, referred to.

(11)R. v. Pile, [2006] 1 Cr. App. R. (S.) 761, referred to.

(12)R. v. Ramoon, 2016 (2) CILR 429, distinguished.

(13)R. v. Rehman, [2005] EWCA Crim 2056; [2006] 1 Cr. App. R. (S.) 404; [2005] Crim. L.R. 878, referred to.

(14)R. v. Ricketts, 2017 (1) CILR 191, applied.

(15)R. v. Scott (C.J.), 2017 (1) CILR 324, referred to.

(16)R. v. Scott (C.M.), 2007 CILR 175, referred to.

(17)R. (Anderson) v. Home Secy., [2002] UKHL 46; [2003] A.C. 837; [2002] 3 W.L.R. 1800; [2002] 4 All E.R. 1089; [2003] 1 Cr. App. R. 32; [2003] UKHRR 112; [2003] HRLR 7, referred to.

(18)Stafford v. United Kingdom (2002), 35 E.H.R.R. 32; 13 B.H.R.C. 260; [2002] Po. L.R. 181; [2002] Crim. L.R. 828, referred to.

(19)Vinter v. United Kingdom (2013), 63 E.H.R.R. 1; 34 BHRC 605; [2014] Crim. L.R. 81, considered.

Legislation construed:

Conditional Release Law 2014, s.14(1): The relevant terms of this sub-section are set out at para. 6.

s.21: The relevant terms of this section are set out at para. 24.

Conditional Release of Prisoners Regulations 2016, s.14: The relevant terms of this section are set out at para. 25.

Schedule 12, s.2: The relevant terms of this section are set out at para. 26.

Criminal Law — murder — sentence — indeterminate sentence — 30-year minimum term before defendant eligible for release on licence for murder in crowded nightclub using unlawful firearm

The defendant was convicted of murder and sentenced to imprisonment for life.

The defendant shot and killed the victim in a crowded nightclub with an unlawful firearm. The defendant and his girlfriend had allegedly been harassed and provoked by the deceased and his companions in an altercation immediately before the offence. He was convicted of murder in 2011 and sentenced to life imprisonment. He was also convicted of the attempted murder of a second man whom he shot during the same incident, and of unlawful possession of the firearm, for which he was sentenced to terms of imprisonment to run concurrently. His appeal to the Court of Appeal was dismissed and he was refused leave to appeal to the Privy Council.

Subsequently, the Conditional Release Law 2014 came into force. Under the Law, when imposing a sentence of life imprisonment, the court must specify the period to be served before the prisoner would be eligible for consideration for conditional release. Section 14 of the Law provided that the minimum term for an offence of murder was 30 years’ imprisonment, unless there were extenuating or aggravating circumstances, exceptional in nature, which caused the court to impose a longer or shorter period of imprisonment. Such circumstances were listed in Schedule 12 to the Conditional Release of Prisoners Regulations 2016.

The Law provided that minimum terms had to be set for offenders such as the defendant who had been sentenced for murder before the Law came into force.

The Crown submitted that the following constituted aggravating circumstances within the terms of Schedule 12 of the Regulations justifying an uplift in the minimum term: (a) the fact that the offence was committed by the bold and terrifying use of a firearm in a public place; (b) the defendant’s previous convictions including assault on a prison officer causing bodily harm; and (c) the impact on the victim’s mother and his two minor children.

The defendant submitted that the following constituted extenuating circumstances justifying a reduction in the minimum term: (a) he had been provoked by the victim and a fellow protagonist, who had assaulted him shortly before the murder; and (b) he had had a troubled upbringing and claimed to suffer from post-traumatic stress disorder after having been the victim of a serious violent attack.

Held, ordering as follows:

(1) The standard of proof for finding an aggravating circumstance exceptional in nature was the criminal standard, which was consistent generally in all criminal trials and with the fact that a finding of an aggravating circumstance could interfere with the statutory norm of 30 years’ imprisonment to the detriment of the offender. With regard to extenuating circumstances exceptional in nature, the proper approach was that in considering how an offender might have been affected by a particular set of circumstances, the court should be guided by its sense of how he might reasonably be expected to have been affected and to have behaved in response. An offender’s response must be assessed both subjectively and objectively, from the point of view of how he would reasonably have regarded or been influenced by the relevant circumstances. When determining whether the circumstances of a case were exceptional in nature so as to justify a minimum term for an offence of murder other than 30 years: (a) the first step in a two-stage analysis was to decide whether there were circumstances that were exceptional in nature; (b) to be “exceptional,” the circumstances had to be unusual or uncommon, although they did not need to be unprecedented or very rare; (c) the assessment should be holistic, taking into account all of the circumstances; (d) the second step was to decide whether, in light of any exceptional circumstances that had been found to exist, a minimum term of 30 years would be arbitrary and disproportionate; (e) the intent behind the legislation, i.e. the protection of the public, was to be kept firmly in mind; and (f) in the absence of circumstances that were truly exceptional in nature, the court had no discretion to depart from the 30-year norm. Having regard to s.23(1) of the Law, the court must assess the circumstances as if it were sentencing an offender who had just been convicted; later events such as the offender’s behaviour in prison after sentencing were not admissible. Detailed consideration of aggravating or mitigating circumstances exceptional in nature could result in a final minimum sentence of any length (Schedule 12, s.2(1) of the Regulations), thus giving the judge a wide discretion (paras. 6–8; para. 12; paras. 25–34).

(2) After a holistic review of all the circumstances, there was no compelling reason to interfere with the statutory minimum of 30 years. The defendant’s previous conviction for assault of a prison officer was not an aggravating circumstance exceptional in nature because some 2 years 9 months had elapsed between that offence and the murder; there was an obvious relative disparity between the seriousness of the offences; the defendant had been only 21 years old at the time of the earlier offence;and it had been his first offence involving violence against a person and could not, by itself, be regarded as evidence of propensity to violence. Nor was the victim impact statement from the victim’s mother detailing the terrible impact of the offence on the victim’s family, including his young sons, an aggravating factor under Schedule 12, s.2(2)(j), i.e. “any other circumstances which may be considered relevant.” Though the loss of a family member was tragic, it could not be regarded as exceptional in nature following a murder. The court therefore assumed that such an obvious consequence was already reflected in the statutory norm of 30 years’ minimum imprisonment. The use of an unlawful gun in a crowded nightclub was, however, by any measure an aggravating circumstance exceptional in nature which could well justify an uplift from the 30-year statutory minimum. It had not been a shooting in the heat of rage but retribution by way of a “gangland style” execution, aimed not only at the deceased but also as intimidation of his associates and reckless as to whether or not anyone else would be hurt. The court rejected the defendant’s self-reported symptoms of PTSD as an explanation for his actions. Although there might well have been a degree of provocation, the victim and his fellow protagonist could not be said to have clearly prevailed against the defendant in the altercation immediately before the offence, and there was no evidence that he had been humiliated. Although, considered from the point of view of the public interest in retribution and deterrence, the circumstances of the commission of the offence in the crowded nightclub could well ordinarily justify an uplift from the 30-year norm, the Law required the judge to have regard also to rehabilitation and it was appropriate to take into account the defendant’s personal circumstances such as his relative youth at the time of the offence and the fraught and provocative circumstances of hostile rivalry in which he had found himself. There was no compelling reason to interfere with the minimum period of 30 years (paras. 70–82; paras. 116–127).

1 SMELLIE, C.J.: In December 2011, Devon Anglin was tried and convicted for the offence of the murder of...