Jerry Martin Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: EDWARDS, J.A.
• Judgment Date: 06 June 2011
• Judgment citation (vLex): [2011] ECSC J0606-2
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCRAP 2007/003
• Date: 06 June 2011

[2011] ECSC J0606-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice M. Pereira Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCRAP 2007/003

Between:

Jerry Martin

Appellant

and

The Queen

Respondent

Appearances:

Dr. Joseph S. Archibald QC for the Appellant

Mrs. Candace Raphael-DeJonge, Senior Crown Counsel for the Respondent

Criminal Appeal - Murder - Life imprisonment - Appeal against sentence - the Parole Act 2009 - Virgin Islands (Constitution) Order 1976 (As Amended) (the "1976 Constitution Order") - Virgin Islands (Constitution) Order 2007 (the "2007 Constitution Order") - Mandatory life imprisonment for the offence of murder - Discretionary life imprisonment for the offence of murder - Section 150 of the Criminal Code 1997 - the Criminal Justice Act 2003 (UK) - Compatibility of penalty for the offence of murder with the doctrine of the separation of powers

On 29 ^th March 2007, the appellant, Jerry Martin, was convicted of the murder of Rolland Serrano and sentenced to life imprisonment. The deceased had been shot outside his apartment building at Sea Cows Bay on the morning of 15 ^th September 2005, during a robbery, and died subsequently from his gunshot wound on 10 ^th October 2005. The appellant originally appealed only against his conviction on three separate grounds. The Court however, subsequently allowed him to appeal against sentence also, because there had recently been a fundamental reappraisal of the sentencing regime for murder in the Virgin Islands, brought about both by case law and the Parole Act 2009. The appellant's appeal against sentence was limited to the sole ground that "the sentence of life imprisonment is not automatic on the verdict of guilty of murder."

Held: dismissing the appeal and affirming the appellant's conviction, as well as his sentence of mandatory life imprisonment, that:

• 1. The penalty in section 23(1) of the Criminal Code 1997 1 is clearly a fixed penalty prescribed by legislative judgment for the offence of murder having regard to its gravity, despite the different circumstances in which the offence may be committed. That fixed penalty under the principle in Deaton v The Attorney General and the Revenue Commissioners [1963] I.R. 170 is not incompatible with the doctrine of the separation of powers under the 1976 Constitution Order, nor for that matter the 2007 Constitution Order. That legislative judgment must be respected subject of course to any statute-based regime for a tariff to be fixed which is compatible with the Constitution, and/or for review or clemency.

  Peter Whelan v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2010] I.E.S.C. 34 applied.

• 2. The Court has not been placed in the position to be able to determine and state whether the appellant may be eligible to be considered for parole, or to state a minimum period of imprisonment that he should serve before being considered for parole for the first time. Consequently, the Court would decline to exercise the jurisdiction envisaged by section 30(2) of the Parole Act 2009. In accordance with that section of the Act however, the appellant may apply to the High Court for a review of the sentence imposed.

EDWARDS, J.A.

1 On 29 ^th March 2007, the appellant was convicted for the murder of Rolland Serrano, a business man operating the Puerto Rico Lottery in the British Virgin Islands. The deceased was shot outside of his apartment building at Sea Cows Bay on the morning of 15 ^th September 2005, during a robbery, and died subsequently from his gunshot wound on 10 ^th October 2005.

2 The appellant was on the date of his conviction sentenced to life imprisonment. In passing sentence the learned trial judge stated:

"You have heard the verdict of the jury. The charge on which you were indicted, the charge of murder and by the laws of the British Virgin Islands as to the penalty, the Court has no discretion on the penalty. So you are hereby sentenced to life imprisonment."

The Appeal

3 On 11 ^th April 2007, the appellant appealed only against his conviction. The hearing of the appeal was traversed on several occasions, on the appellant's applications with the approval of the Director of Public Prosecutions. The applications were made in anticipation of a fundamental reappraisal of the sentencing regime for murder, following the order of the Privy Council in other matters; 2 as well as certain proposed changes in the law reflected in the Bill for the Parole Board Act, 2009.

4 On 20 ^th May 2009, the Parole Act 3 came into force in the British Virgin Islands. Section 30(2) of the Parole Act states as follows:

"Where on the commencement of this Act, a criminal appeal is pending before the Court of Appeal, the Court may, in delivering its judgment, revise the sentence of the High Court to bring it into conformity with this Act."

5 Section 9 of the Parole Act which contains relevant provisions for the purposes of this appeal states as follows:

"(2) A judge upon sentencing a person to imprisonment for life, shall state whether such person may be eligible to be considered for parole and, if a person is found to be so eligible, state a minimum period of imprisonment that such person shall serve before being considered for parole for the first time.

…

(5) For the purposes of determining the length of that part of the sentence which a prisoner has served, any period pending the determination of an appeal against conviction or sentence shall be taken into account as if he or she has served that period as part of the sentence, unless the court hearing the appeal otherwise directs."

6 It is against this background that on 11 ^th January 2010 we granted the appellant permission to appeal against sentence also; and further, to limit the appeal to an appeal against sentence only on the ground that "the sentence of life imprisonment is not automatic on the verdict of guilty of murder." The appeal against conviction was thereby treated by the court as abandoned.

7 An historical insight into the law governing the punishment for murder in the Virgin Islands and the United Kingdom puts the issues arising from the ground of appeal and the arguments of counsel into proper perspective. Formerly, the sentence of death was the penalty for murder where it was provided by sections 2 and 3 of the Offences Against the Person Act 4 that: "2. Whosoever is convicted of murder shall suffer death as a felon. 3(1) Upon every conviction for murder, the Court shall pronounce sentence of death, and the same may be carried into execution…"

8 Although the revoked Constitution Orders of the Virgin Islands 5 did not provide for the imposition of the death penalty, they recognized the sentence of death as a lawful penalty, by vesting in the Governor the right of pardon and the power to commute or remit punishment including the death sentence, imposed by any court exercising criminal jurisdiction. Section 11 of the repealed Virgin Islands (Constitution) Order 1976 (As Amended) 6 ("the 1976 Constitution Order") provided for the establishment of and procedure for an Advisory Committee on the Prerogative of Mercy (comprising the Attorney General, the Chief Medical Officer and four members appointed by the Governor after consultation with the Chief Minister) which the Governor was to consult with prior to deciding whether to exercise his powers of clemency under section 10 of the 1976 Constitution. A similar provision exists in section 44 of the Virgin Islands (Constitution) Order 2007 ("the 2007 Constitution Order") which came into force on 15 ^th June 2007.

9 Section 10 of the 1976 Constitution Order is similar to section 43 of the 2007 Constitution Order, save for the provision in section 10(3) and its proviso, which is absent from section 43 of the 2007 Constitution Order. Section 10 of the 1976 Constitution Order provided the following:

"10. (1) The Governor may, in Her Majesty's name and on Her Majesty's behalf -

(a) grant to any person concerned in or convicted of any offence against any law in force in the Virgin Islands a pardon, either free or subject to lawful conditions;

(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any sentence passed on that person for such an offence;

(c) substitute a less severe form of punishment for that imposed by any sentence for such an offence; or

(d) remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to Her Majesty on account of such an offence.

(2) In the exercise of his powers under this section the Governor shall consult with the Committee established under section 11 of this Order, but he shall decide whether to exercise any of those powers in any case in his own deliberate judgment, whether the members of the Committee concur in his decision or otherwise.

(3) Without prejudice to the provisions of the last foregoing subsection, whenever any person has been sentenced to death (otherwise than by Court Martial) for an offence against any law in force in the Virgin Islands the Governor shall call upon the judge who presided at the trial to make him a written report of the case of such offender and shall cause such report, together with such other information derived from the record of the case or elsewhere as the Governor may require, to be taken into consideration at a meeting of the Committee so that the Committee may advise him on the exercise of his powers under this section in relation to that person:

Provided that if it is impracticable to obtain such a report, the Governor may act without such a report, but in that case shall, if practicable, cause to be taken into consideration a report furnished by the registrar of the court after consulting counsel for the prosecution and defence in the...