R v Ricketts

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 07 February 2017
• Court: Grand Court (Cayman Islands)
• Date: 07 February 2017

Grand Court, Criminal Division

(Henderson, J.)

R.

and

RICKETTS

C. Richards, Q.C. and E. Less for the Crown;

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

Cases cited:

(1) Att. Gen.’s Ref. (No. 23 of 2009), [2009] EWCA Crim 1683; [2010] 1 Cr. App. R. (S.) 70, referred to.

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

(3) Att. Gen.’s Ref. (No. 115 of 2015), [2016] EWCA Crim 765; [2016] 2 Cr. App. R. (S.) 23; [2016] Crim. L.R. 859, referred to.

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

(5) Campbell v. United Kingdom (1984), 7 E.H.R.R. 165, considered.

(6) Del Rio Prada v. Spain (2013), 58 E.H.R.R. 37, referred to.

(7) Findlay, In re, [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801; [1985] Crim. L.R. 154, considered.

(8) Kafkaris v. Cyprus (2008), 49 E.H.R.R. 35; [2010] 1 Prison L.R. 1, referred to.

(9) O’Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, referred to.

(10) R. v. Buckland, [2000] 1 W.L.R. 1262; [2000] 1 All E.R. 907; [2000] 1 Cr. App. R. 471; [2000] 2 Cr. App. R. (S.) 217; [2000] Crim. L.R. 307, referred to.

(11) R. v. Butler (Tamara), Grand Ct., Ind. No. 102/2014, May 6th, 2016, unreported, considered.

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

(13) R. v. Home Secy., ex p. Hargreaves, [1997] 1 W.L.R. 906; [1997] 1 All E.R. 397, referred to.

(14) R. v. Kelly, [2000] Q.B. 198; [1999] 2 W.L.R. 1100; [1999] 2 All E.R. 13; [1999] 2 Cr. App. R. 36; [1999] 2 Cr. App. R. (S.) 176; [1999] Crim. L.R. 240, applied.

(15) R. v. Offen, [2001] 1 W.L.R. 253; [2001] 2 All E.R. 154; [2001] 1 Cr. App. R. 24; [2001] 2 Cr. App. R. (S.) 10; [2001] Crim. L.R. 63, referred to.

(16) R. v. Peters, [2005] EWCA Crim 605; [2005] 2 Cr. App. R. (S.) 101; [2005] Crim. L.R. 492, referred to.

(17) R. v. Ramoon, 2016 (2) CILR 429, applied.

(18) R. v. Rehman, [2005] EWCA Crim 2056; [2006] 1 Cr. App. R. (S.) 77; [2005] Crim. L.R. 878, referred to.

(19) R. v. Scott, 2007 CILR 175, referred to.

(20) R. (Abedin) v. Justice Secy., [2015] EWHC 782 (Admin), referred to.

(21) R. (Uttley) v. Home Secy., [2004] UKHL 38; [2004] 1 W.L.R. 2278;[2004] All E.R. 1; [2005] 1 Cr. App. R. 15; [2005] 1 Cr. App. R. (S.) 91; [2004] H.R.L.R. 42; [2004] UKHRR 1031, referred to.

(22) R. (Wellington) v. Home Secy., [2008] UKHL 72; [2009] 1 A.C. 335; [2009] 2 W.L.R. 48; [2009] 2 All E.R. 436; [2009] H.R.L.R. 11; [2009] UKHRR 450, referred to.

(23) Robinson v. Justice Secy., [2009] EWHC 2251 (Admin); [2010] A.C.D. 15, referred to.

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

Legislation construed:

Conditional Release Law 2014, s.14(1):

“. . . [W]hen sentencing a prisoner to a term of imprisonment for life, the court shall specify the period of incarceration the prisoner shall serve before the prisoner is eligible to be considered for conditional release on licence, the period being such as the court considers appropriate to satisfy requirements of retribution, deterrence and rehabilitation, but for murder, the period shall be thirty years before the prisoner is eligible for conditional release unless there are—

(a) extenuating circumstances, exceptional in nature, in which case the court may impose a lower period of incarceration; or

(b) aggravating circumstances, exceptional in nature, in which case the court may impose a longer period of incarceration.”

Conditional Release of Prisoners Regulations 2016, Schedule 12, s.2(2): The relevant terms of this sub-section are set out at para. 7.

Schedule 12, s.2(3): The relevant terms of this sub-section are set out at para. 8.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.3:

“No person shall be subjected to torture or inhuman or degrading treatment.”

s.8(1): “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

Criminal Law—murder—sentence—indeterminate sentence—Conditional Release Law 2014, s.14(1) provides default term of 30 years before defendant eligible for consideration for release on licence—exceptional extenuating or aggravating circumstance may justify different minimum term (set out in Conditional Release of Prisoners Regulations 2016, Schedule 12)—use of firearm, youth (21) and jealously of victim not exceptional

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

In 2012, the defendant shot the victim with an unlicensed firearm outside the home of his former partner. The defendant had been jealous of the victim, who had recently begun a romantic relationship with the defendant’s former partner, who was the mother of his children.

When he shot the victim, the defendant had attempted to conceal his face but he had been identified by the victim’s brother, who had been present, and cell phone records and CCTV footage placed him at the scene of the shooting at the material time.

In August 2013, the defendant had been convicted of murder and possession of an unlicensed firearm and sentenced to life imprisonment. Subsequently, the Conditional Release Law 2014 came into force. Under the Conditional Release Law 2014, 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. In a case of murder, s.14(1) provided for a period of 30 years, unless there were extenuating or aggravating circumstances, exceptional in nature, which caused the court to impose a shorter or longer period of imprisonment. Aggravating and extenuating 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.

Held, ordering as follows:

(1) It could not be said that the Law and the Regulations infringed the human rights of prisoners who had been sentenced to life imprisonmentfor murder before they came into effect. Section 8(1) of the Constitution prohibited the imposition of a heavier penalty than that applicable at the time the offence was committed. The change in the law regarding release on licence did not amount to a heavier penalty but was, rather, a change in the manner of execution or enforcement of the sentence. The penalty remained imprisonment for life. The possibility of release under the Law and Regulations meant that a mandatory life sentence for murder was not, for that reason, grossly disproportionate in a manner that infringed s.3 of the Constitution (paras. 13–16).

(2) When determining whether the circumstances of a case, taken as a whole, 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 (para. 28).

(3) There were no exceptional circumstances in the present case. The use of an unlicensed firearm in the commission of the offence was not unusual or uncommon. The use of firearms in the commission of offences was widespread in the Cayman Islands. A combination of the defendant’s age, he had been 21 years old at the time of the offence, his level of maturity and his jealously of the victim did not amount to exceptional extenuating circumstances. Indeed, in cases of violent assault and murder, these factors were commonplace. The defendant must serve a term of imprisonment of 30 years before he would be eligible for conditional release (paras. 44–48; para. 57).

(4) The defendant did not have a legitimate expectation, arising from the Governor’s recent practice of releasing prisoners serving life sentences after an average incarceration of 26 years, of being allowed to apply for conditional release and of being released on licence after having...