Ramoon v R

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Rix and Moses, JJ.A.)
• Judgment Date: 07 December 2018
• Court: Court of Appeal (Cayman Islands)
• Date: 07 December 2018

RAMOON

and

R.

DOUGLAS

and

R.

(Goldring, P., Rix and Moses, JJ.A.)

Court of Appeal (Cayman Islands)

Criminal Law — murder — sentence — indeterminate sentence — aggravating circumstances “exceptional in nature” for purposes of Conditional Release Law 2014, s.14 and Conditional Release of Prisoners Regulations 2016, Schedule 12 if so serious as to make case exceptional — not frequency of conduct — use of firearm in murder exceptional even though not rare in Cayman Islands

Held, granting leave but dismissing the appeals:

(1) The appellants’ appeals against their convictions would be dismissed. The CCTV evidence was powerful evidence against the appellants and it was consistent with the witness accounts. The appellants’ failure to give evidence entitled the judge to draw the adverse inferences that he did. The Court of Appeal should be very slow to interfere with primary findings of fact made by a trial judge, particularly following a trial of some length. It was clear that the judge had had well in mind the evidence and the points made by the defence. There was the clearest basis on which to accept the Crown’s case and reject the defence. It could not be said that the convictions were unsafe or unsatisfactory (paras. 54–72).

(2) The appellants’ appeals against their sentences would also be dismissed. It could not have been the intention of the Legislative Assembly that the meaning of circumstances “exceptional in nature” in s.14 of the Conditional Release Law 2014 and Schedule 12 of the Conditional Release of Prisoners Regulations 2016 was concerned with how infrequent or uncommon in the Cayman Islands were the circumstances of the murder in question. The words related not to the frequency of the conduct, but its seriousness. The issue was whether the circumstances of the murder in question were so serious as to mark out the nature of the case as exceptional, and to justify imposing a longer period of imprisonment. Equally, when assessing any extenuating circumstances, the court would have in mind not how often such circumstances might occur but whether the circumstances were so exceptional as to justify imposing a lower period of imprisonment. The court also could not agree that, because para. 2(2) of Schedule 12 of the Regulations made no mention of a firearm as an aggravating circumstance, the Legislative Assembly intended to exclude the use of a firearm as an exceptional circumstance justifying a longer term of imprisonment. The words of para. 2(2) were clear: the aggravating circumstances set out were not intended to be exhaustive. Whether in any given case the use of a particular weapon, such as a firearm, amounted to an aggravating circumstance must depend on all the circumstances of the case, although it seemed to the court that in most cases the pre-possession and use of firearms was likely to amount to an aggravating feature. It was unhelpful to seek to lay down in an over-formal way how judges should approach the sentencing exercise in cases of murder. This was pre-eminently an area for the application of judicial judgment and discretion. Each case would depend on its own facts. The judge would make an overall assessment of the circumstances, no doubt taking into account, among other things, the prevalence of particular sorts of murder in the Cayman Islands, the protection of the public and such aggravating and mitigating circumstances as he found there to be. In the present case, the judge heard the evidence and was entitled to reflect his view of all the circumstances. He was entitled to conclude that the evidence disclosed a significant degree of planning and premeditation, particularly in light of the sequence of events revealed by the CCTV evidence. The judge was also entitled to take into account the attempt to shoot one of the witnesses,which was an important part of the circumstances as the judge found them, and to describe the offence as a “public execution” or as being “chillingly clinical.” He was entitled to comment on the prevalence of gun crime in the Cayman Islands. The judge was also entitled to add an extra year for Ramoon’s previous conviction for possessing an imitation firearm, as an aggravating feature within the terms of para. 3(1) of Schedule 12 of the 2016 Regulations. The court accepted that 30 years’ imprisonment was a very long period and that it was important not to water down the meaning of the phrase “exceptional in nature” but the judge had been entitled to sentence the appellants as he did (paras. 105–120).

Cases cited:

(1)R. v. Crawford, [2015] UKPC 44, followed.

(2)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, C.J. considered.

(3)R. v. Ricketts, 2017 (1) CILR 191, considered.

(4)R. v. Turnbull, [1977] Q.B. 224; [1976] 3 W.L.R. 445; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132; [1976] Crim. L.R. 565, referred to.

Legislation construed:

Conditional Release Law 2014, s.14: The relevant terms of this section are set out at para. 74.

s.21: The relevant terms of this section are set out at para. 75.

Conditional Release of Prisoners Regulations 2016, reg. 14: The relevant terms of this regulation are set out at para. 76.

Schedule 12: The relevant terms of this schedule are set out at para. 76.

Court of Appeal Law (2011 Revision), s.9: The relevant terms of this section are set out at para. 53.

The appellants were charged with murder and possession of an unlicensed firearm.

The appellants were convicted in the Grand Court of murder and possession of an unlicensed firearm. The prosecution case was that the appellants had driven to a local bar where Douglas gave Ramoon the firearm and Ramoon then shot the victim in the head. The victim died instantly. Ramoon had also attempted to shoot a friend of the victim (a prosecution witness) but the firearm failed to discharge. There was some CCTV footage placing the appellants at the scene at the relevant time, but there was no footage of the offence. The appellants challenged the witnesses for the prosecution, who identified the appellants as the offenders, on the basis that the witnesses were men of bad character and that there were inconsistencies in their accounts. The judge accepted the witness evidence, which he found to be strongly supported by the CCTV footage.

Section 182 of the Penal Code (2013 Revision) provided that any person convicted of murder should be sentenced to imprisonment for life. Under the Conditional Release Law 2014, when imposing a sentence oflife 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 aggravating factors included a significant degree of planning or premeditation (para. 2(2)(a)), previous convictions (para. 2(2)(h)), and any other circumstances which might be considered relevant (para. 2(2)(j)).

The Crown had submitted that there were the following aggravating circumstances: (a) the offence took place in a crowded public place and was essentially a public execution; (b) there had been a degree of planning and premeditation; (c) Ramoon had previous convictions which included possession of an imitation firearm and possession of ganja with intent to supply; and (d) Douglas had previous convictions which included burglary and handling stolen goods. There appeared to be no extenuating circumstances.

The Grand Court (Quin, J.) sentenced Douglas to 34 years’ imprisonment and Ramoon to 35 years’ imprisonment (in a judgment reported at 2016 (2) CILR 429). Ramoon was sentenced to an additional year of imprisonment due to his previous conviction for possession of an imitation firearm. Concurrent sentences of 10 years’ imprisonment were also imposed on both appellants for possession of the unlicensed firearm.

The appellants appealed against their conviction and sentence. On appeal against conviction they submitted inter alia that (a) the judge failed properly to analyse the evidence that showed the prosecution witnesses to have lied, given inconsistent accounts, to have criminal backgrounds, a motive to implicate the appellants and to have possibly colluded in their accounts; and (b) whether or not the prosecution witnesses were truthful, the circumstances in which they claimed to have identified the appellants were such as to make any identification unreliable. In respect of their appeal against sentence, they submitted that (a) when determining whether circumstances were exceptional in nature for the purposes of s.14(1) of the 2014 Law and Schedule 12 of the 2016 Regulations, circumstances were required which were unusual or uncommon, although not necessarily unprecedented or very rare; (b) the possession of a firearm was not an aggravating circumstance as the possession and use of firearms in cases of murder was commonplace in the Cayman Islands; and (c) the judge was also wrong (i) to find that there was a very significant degree of planning or premeditation; (ii) to take into account the attempt to shoot one of the witnesses, in respect of which there was no conviction; (iii) to describe the murder emotively as a “public execution” or as “chillingly clinical”; (iv) to have relied on an assertion that gun crime had escalated in the Cayman Islands without specific evidence; and (v) to add an additional year of imprisonment to Ramoon’s sentence for his previous conviction for a firearms offence.

C. Miskin, Q.C. and L. Aiolfi for the first appellant;

S. Larkin, Q.C. and P. Bodden for the second appellant;

D. Perry, Q.C. and E. Lees, Senior Crown...