The Queen v Aaron George

• Jurisdiction: British Virgin Islands
• Judge: Joseph-Olivetti J
• Judgment Date: 16 December 2009
• Docket Number: CRIMINAL CASE NO. 2 of 2009
• Court: High Court (British Virgin Islands)
• Date: 16 December 2009

IN THE HIGH COURT OF JUSTICE (CRIMINAL JURISDICTION)

CRIMINAL CASE NO. 2 of 2009

The Queen

and

Aaron George

Appearances:

Terrance Williams, Director of Public Prosecutions and Christilyn Benjamin Crown Counsel for the Prosecution

Herbert McKenzie for the Prisoner

Catchwords: Criminal law — sentencing — murder — guilty plea-principles for determining reduction in sentence for guilty plea of murder — assisting Police and prosecution with Prosecuting another offender — principles for determining reduction in sentence — Parole Act 2009 s. 9 — minimum tariff term before person sentenced to life imprisonment eligible for parole — applicable principles Criminal Code 1997 s. 23 and s-150 considered

JUDGMENT ON SENTENCING

Joseph-Olivetti J

1 Murder in a most deliberate and cold blooded form revealed its sinister visage on the serene island of Virgin Gorda on 29^th October, 2006, when Mr. Vincent John Connolly was shot five times outside his home and killed. The Prisoner, Mr. Aaron George was subsequently charged with his murder and in May 2009, he pleaded guilty. I held a sentencing hearing and pronounced sentence on 23^rd June. I promised to give written reasons and now do so.

The Facts

2 The facts, as given by the Crown, were not disputed. In substance, on 29th October, 2006 the body of Mr. Vincent Connolly an Englishman was found outside his home at Virgin Gorda. He had been shot five times. Almost 1 year and six months later, on 28^th May, 2008 the Police arrested the Prisoner and charged him with the murder. Shortly after, the Prisoner gave a written confession to the Police. He said that he had been asked by another person (‘the Third Party’) to kill Mr. Connolly for $50,000.00, and that he undertook to do so because he needed the money. He understood that the reason for wanting Mr. Connolly killed arose out of a dispute between the Third Party and Mr. Connolly over money allegedly owed to the Third Party, as a contractor engaged on the Little Dix Bay project. Mr. Connolly was responsible for the payment of contractors on the Project.

3 The Prisoner thereafter staked out Mr. Connolly's home, every night for about 2 weeks. On the fatal night he saw Mr. Connolly out liming. He went to his home and waited for him, hiding beside a wall close to where Mr. Connolly usually parked his vehicle. The unsuspecting victim arrived at his home, got out of his vehicle and went around to the passenger side to retrieve his guitar. The Prisoner seized the moment and shot him four or five times, then ran off.

4 The Prisoner told the Police that the Third Party paid him about $3,000.00 after he had killed Mr. Connolly, and no more. The Police also recovered the murder weapon from the Prisoner who said that the Third Party had given it to him to effect the murder. On 19th August, 2008, the Prisoner indicated to the Police that he would be willing to assist the Police in the prosecution of the Third Party and to testify at that trial.

5 Police investigations confirmed that Mr. Connolly was here on contract. He was responsible for coordinating the construction of a project, the Little Dix Bay Project, including the payment of contractors and that the Third Party was one of the contractors employed on the project. Investigations further revealed that Mr. Connolly and some of thecontractors including the Third Party were having arguments over payments for jobs done on the project which resulted in a breakdown in the relationship.

Mitigation

6 Mr. Mc Kenzie, learned counsel for the Prisoner, gave us a brief picture of the Prisoner's social circumstances and filed very helpful written submissions. Counsel emphasized that the Prisoner had no relevant antecedents; that he pleaded guilty at the earliest opportunity and, that he is the key witness for the prosecution in the case against the Third Party. In fact, counsel went so far as to suggest that without the Prisoner's assistance and testimony, the Crown would have no case against the Third party. The Crown accepted this. Accordingly, Mr. Mc Kenzie submitted that the Prisoner was entitled to a substantial discount in consideration of the latter two matters, that is, the early guilty plea and his substantial assistance to the Prosecution. Counsel relied on the principles emanating from the English case ofR v. Sivan et al (1988) 87 CR. APP. R. 4071 relating to the discretion to discount a sentence for assisting the Police, which principles were applied by this court in R v Hubert McLeod2 and R v Jay Archibald3. Counsel also referred to Emma Last, Lee David Holbrook, Sara Cane, Edward Steven Quillan, James Angus Quillan v R4 for guidance on the discount for a guilty plea in cases of murder.

7 With respect to the specific requirements of the Parole Act, 2009 (‘the Act’) counsel argued that the tariff period before which parole cannot be considered should be 17 years. Counsel relied on the provisions of Schedule 21 of the English Criminal Justice Act (‘the CJA’) and the particular circumstances of the case, as the Parole Act is silent on the criteria for determining the tariff term.

The Crown's Submissions

8 The learned Director of Public Prosecutions (‘the DPP’) likewise provided written submissions in which he made references to the Parole Act, the CJA, and case law from England, New Zealand and this jurisdiction. The DPP accepted that the Prisoner was entitled to a discount for his early guilty plea and to a substantial discount for his assistance in the prosecution of the Third Party and that this was a matter entirely within the court's discretion.

9 The DPP adopted the same position as Mr. Mc Kenzie and submitted that the court should refer to Schedule 21 of the CJA in the absence of any criteria for determining the tariff term in the Parole Act. He submitted that the starting point for the consideration of the tariff should be 30 years as this was not the most heinous of murders having regard to the English classification. He contended that a tariff term of 21 years would be just and appropriate having regard to the guilty plea and to the Prisoner's assistance to the Police, and his testimony which were crucial to the successful prosecution of the Third Party Counsel. He relied on, inter alia,R v. Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim. 19625, and Emma Last.

Court's Considerations

10 I now have to consider what is a just and fitting punishment to impose on the Prisoner. The maximum penalty for murder is a mandatory sentence of life imprisonment. The Criminal Code, 1997 section 150 provides—‘Any person who is convicted of murder is liable to imprisonment for life.’ And, section 23 makes it abundantly clear that no shorter prison sentence can be meted out in respect of murder.6

11 The seeming harshness of these provisions has been reduced to a great extent by the Parole Act, 2009 certain pertinent provisions, of which came into force on 20^th May 20097. For our purposes, the most relevant provision is Section 9 (2) which provides:—‘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’. [Emphasis added]

12 I am aware that a recent challenge8 was posed in the Judicial Committee of the Privy Council as to the constitutionality of the mandatory life sentence but this was prior to the coming into force of the Parole Act. However, the DPP referred me to the said section 9 and to the English cases of R v Lichniak, R v Pyrah9 to say that the lawfulness of the mandatory life sentence for murder should no longer be a matter for the court's concern.

13 The cases ofLichniak and Pyrah highlight the wholly disparate moral circumstances which may result in murder and I will refer to the facts in some detail. Ms. Lichniak was a 29 year old woman who lived with one, Thomas, by whom she had 4 children. Thomas used her to go with him to a public house to confront a man with whom he had a quarrel. While the two men were grappling with each other she took a large carving knife from the car and fatally stabbed the deceased. Thomas was charged with her but was acquitted on the basis that he was not a party to a joint enterprise with her. The trial judge found that she had been in a state of chronic anxiety and stress induced by the demands of her children and her stormy relationship with Thomas. She had no previous convictions.

14 Mr. Pyrah was aged 41 at the time. On the evening in question he had drunk heavily and was in a residential area with friends. He heard and saw in the street a fracas involving a woman being assaulted by a man. The man pushed the woman to the ground. Upon seeing this Mr. Pyrah approached the assailant, punched him and knocked him to the ground and then kicked his head. The first kick was described as a ‘rugby penalty kick’. It proved fatal. At the trial medical evidence was produced to the effect that he had a particular sensitivity to such a situation because as a child he had witnessed his mother being treated violently.

15 In separate trials before different judges, both Ms. Lichniak and Mr. Pyrah were convicted of murder and were sentenced to imprisonment for life as required by section 1 of the Murder (Abolition of Death Penalty) Act 1965. The trial judges were of the view that they were unlikely to present any danger to the public upon release and that there was no likelihood of re-offending. Accordingly, the period of detention necessary to meet the requirements of retribution and general deterrence was fixed at eleven years in Ms. Lichniak's case and eight years in Mr. Pyrah's case. They appealed, on the basis, inter alia, that the mandatory life sentence was incompatible with Articles 3 and 5 of the European...