R v Tareek Ricardo Ricketts

• Jurisdiction: Cayman Islands
• Judge: Alexander Henderson
• Judgment Date: 07 February 2017
• Judgment citation (vLex): [2017] CIGC J0207-4
• Date: 07 February 2017
• Docket Number: INDICTMENT No. 114/12
• Court: Grand Court (Cayman Islands)

Regina

and

Tareek Ricardo Ricketts

Before:

Justice Alexander Henderson Q.C.

INDICTMENT No. 114/12

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CRIMINAL SIDE

HEADNOTE

Criminal Law — Sentence — Mandatory life sentence — Minimum term — Conditional Release — Firearm — Exceptional in nature — Aggravating circumstance — Extenuating circumstance — Arbitrary and disproportionate legitimate expectation of release.

Appearances:

Ms. Cheryll Richards Q.C. and Ms. Elisabeth Less for the Crown

Mr. John Ryder Q.C. and Ms. Prathna Bodden for the Defendant

JUDGMENT

1. John Tareek Ricketts was convicted of murder (and the related offence of possession of an unlicensed firearm) by a jury on August 17, 2013 and sentenced to imprisonment for life. In light of a change in the law, the sentencing hearing must now be supplemented with this judgment.

Legislative Background

2. The only sentence for murder in the Cayman Islands has been, and still is, one of imprisonment for life. Until recently, this was a “whole life” sentence; the offender had no prospect of ever being released. That position has changed as a result of decisions such as Vinter & others v UK1. While an offender convicted of murder has no entitlement to be released at any time, he now has an entitlement to be considered for release after a certain number of years have passed. I will refer to the period of time that must elapse before release as the “minimum term”. The hearing I have conducted was for the purpose of fixing the minimum term for Mr. Ricketts.

3. The new minimum term legislation is contained in the Conditional Release Law, 2014 (“the Law”), which received the assent of the Governor on November 20, 2014 and came into force on February 15, 2016; and in the Conditional Release of Prisoners Regulations, 2016 (“the Regulations”). Both apply to all prisoners regardless of when they were convicted or sentenced: Law, s.3(1).

The Law provides for the first time that a prisoner serving a life sentence shall be eligible “to be considered for conditional release on licence” after serving a minimum term of incarceration: Law, s. 7(1)(a). Going forward, that minimum term is to be set by the trial judge at the time of sentencing. For each of those who were sentenced before the Law came into effect, minimum terms must now be set. In both circumstances, the applicable principles are the same.

4. The minimum term must be the period of time that the Court considers “appropriate to satisfy requirements of retribution, deterrence and rehabilitation”: Law, s. 14(1). The Court must assess the circumstances as if it were sentencing an accused who has just been convicted: Law, s. 23(1). Evidence of the offender's behavior in prison after the date of the original sentencing is not admissible: Law, s. 23(4). When setting a minimum term for an offender who was sentenced before the inception of the new legislation, the Court must consider only those matters that were or could have been put before it at the original sentencing; events that occurred afterwards are of no relevance.

5. When a life sentence is imposed for murder, the Law contains a clear expression of the intent and expectation of the Legislative Assembly: the minimum term “shall” be 30 years unless there are “extenuating” or “aggravating” circumstances that are “exceptional in nature”: Law, s. 41(1). The former, of course, will tend to justify a lower minimum term than 30 years while the latter will support an increase.

6. The Regulations contain a schedule — Schedule 12 (and see regulation 14) — that elaborates upon what may be taken into consideration. Section 2(1) of Schedule 12 states that “Detailed consideration of aggravating or mitigating circumstances may result in a minimum term of any length.” There are specific rules for previous convictions and murders committed while on bail and lists of aggravating and mitigating circumstances that “may be relevant to the offence of murder” in subsections 2(2) and 2(3) of Schedule 12.

7. The following aggravating circumstances may be relevant:

• (a) a significant degree of planning or premeditation;

• (b) the fact that the victim was particularly vulnerable because of age or disability;

• (c) mental or physical suffering inflicted on the victim before death;

• (d) the abuse of a position of trust;

• (e) the use of duress or threats against another person to facilitate the commission of the offence;

• (f) the fact that the victim was providing a public service or performing a public duty;

• (g) concealment, destruction or dismemberment of the body;

• (h) previous convictions;

• (i) abduction and sexual or sadistic conduct; and

• (j) any other circumstances which may be considered relevant.

8. Extenuating circumstances include:

• (a) an intention to cause serious bodily harm rather than to kill;

• (b) lack of premeditation;

• (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 185(1) of the Penal Code (2013 Revision)), lowered the offender's degree of culpability;

• (d) the fact that the offender was provoked (for example, by prolonged stress);

• (e) the fact that the offender acted to any extent in self-defence or in fear of violence;

• (f) a belief by the offender that the murder was an act of mercy;

• (g) the age of the offender; and

• (h) any other circumstances which may be considered relevant.

9. In all cases, aggravating or extenuating circumstances cannot have an effect on the decision unless they are, individually or in combination, “exceptional in nature”: regulation 1(3), reiterating a provision in s. 14(1) of the Law. I will return to this subject below.

10. When deciding whether one or more aggravating circumstances are present, the standard of proof is the same as that applied by the jury in reaching their verdict. Before a circumstance can be viewed as aggravating, the Court must be sure of its existence; the evidence must establish that beyond a reasonable doubt. That is the effect of the decision of the UK Court of Appeal in R. v Davies2 (in relation to the fixing of a minimum term) and of the decision of Quin, J in R v Ramoon & Douglas3. The rule is a salutary one, providing significant protection to a defendant.

11. The Governor of the Cayman Islands has had the authority to release a prisoner serving a life sentence on licence under s.31A of the Prison Law, 1975. Six such prisoners have been released. The periods of imprisonment they served before release range from 22 to 29 years; the average is 26 years 4 months. The Governor's jurisdiction to release has now passed to the Conditional Release Board.

12. One class of prisoner serving life for murder is exempted from the new minimum term requirement — those who have “applied for” release under s.31A of the Prison Law, 1975: regulation 15(1). There are two prisoners who have applied for but not yet obtained a release on licence. Because of the express wording of regulation 15(1), no minimum term can be set for these prisoners at this time.

Constitutional Considerations

13. At a case management conference I expressed some uncertainty about possible constitutional ramifications arising from the change in the law. The subsequent declaration by the Legislative Assembly that a minimum term of 30 years shall be the norm might be seen as a retroactive increase in the penalty. Section 8(1) of the Cayman Islands Constitution Order, 2009 (the “Bill of Rights”) prohibits the imposition of a “heavier penalty” than the one that was applicable at the time the offence was committed. Article 7 of the European Convention on Human Rights contains a similar provision.

14. Ms. Richards, QC and Mr. Ryder, QC are in agreement that a change in the law regarding release on licence does not amount to a heavier penalty within the meaning of s.8(1); it is, rather, a change in the manner of execution or enforcement of the sentence. The penalty remains imprisonment for life. Thus, it cannot be argued that the Law and the Regulations infringe the human rights of prisoners sentenced before they came into effect.

15. I am indebted to counsel on both sides for their insightful assistance. Having reviewed the authorities, I am in agreement with them. I draw my conclusion from the decisions in Uttley v Secretary of State for the Home Department4; Kafkaris v Cyprus5; Robinson v Secretary of State for Justice6; Del Rio Prada v Spain7; and The Queen on the application of Abedin v Secretary of State for Justice8.

16. The Defendant also accepts, on the authority of Vinter v UK9; Kafkaris10; and R (Wellington) v Secretary of State11 that the possibility of release under the Law and the Regulations means that a mandatory life sentence for murder is not, for that reason alone, “grossly disproportionate” in a manner that infringes section 3 of the Bill of Rights.

Exceptional in Nature

17. Any deviation from the 30-year norm must be exceptional in nature. For this reason, I consider the word “norm” to be a more accurate characterization than the more common “starting point”, a phrase used routinely in sentencing decisions.

18. The phrase “exceptional in nature” has not been the subject of judicial commentary but is equivalent to one — “exceptional circumstances” — that has been the subject of judicial construction and comment on several occasions in a variety of contexts. Some assistance can be derived from these decisions provided always that the context and underlying policy rationale of the legislation in question (which may differ markedly from our minimum term provisions) is kept firmly in mind.

19. In sentencing an offender for a theft from an employer that amounts to a breach of trust, a term of imprisonment is to be imposed unless the court finds that there are exceptional circumstances. In R v Scott & Fyne12, the Cayman Islands Court of...