The Queen v Jerry Martin

• Jurisdiction: British Virgin Islands
• Judge: Joseph-Olivetti, J
• Judgment Date: 26 May 2006
• Court: High Court (British Virgin Islands)
• Docket Number: CRIMINAL CASE NO. 2 OF 2006
• Date: 26 May 2006

IN THE HIGH COURT OF JUSTICE

(CRIMINAL JURISDICTION)

CRIMINAL CASE NO. 2 OF 2006

The Queen

and

Jerry Martin

Appearances:

Mr. Terrence Williams, the Director of Public Prosecutions and Ms. Tamia Richards

Mr. Hayden St. Clair Douglas and Mr. Kevon Swan for the Prisoner

Judgment on Sentencing

(Attempted Murder and possession of firearm with intent to injure)

Joseph-Olivetti, J

1 The Prisoner, Jerry Martin was convicted, after a three-day trial, of two offences, attempted murder contrary to section 152 of the Criminal Code, 1997 and possession of a firearm with intent to injure contrary to section 27A of the Firearms Act Cap.126 (as amended by Act 6 of 1993). A sentencing hearing was deferred to the 22 ^nd May at the request of his counsel.

2 I shall consider the count of attempted murder first. The particulars of that offence reads:

‘Jerry Martin on the 22 ^nd day of May, 2004 at Road Town in the Island of Tortola in the Territory of the Virgin Islands attempted to murder Hugh Erickson’.

The Material Facts

3 The Prosecution's case in a nutshell was that the incident occurred about 8 p.m. on Saturday night in the vicinity of the famous landmark, the Sunday Morning Well in Road Town, Tortola, which has ties to slavery and emancipation. (Ironically, it is a stone's throw from this very courthouse). Mr. Erickson was seated in his jeep which was off the road with the engine running talking to his friend, Mr. James. Mr. James was standing outside beside the driver's door. The area had good lighting from at least two street lights in the vicinity and from nearby shops. Both men testified that they saw the Prisoner drive by, stop and look back at Mr. Erickson and then he drove off. Both men knew the Prisoner, Jerry Martin, extremely well. In fact, Mr. James was his landlord for about two years ending about a month or so before the incident during which time they lived in the same building. About five minutes later they heard a gun shot. They testified that they saw a man standing in the road some two feet away from the vehicle firing into it. The man had a white t-shirt covering his head but his face was clearly visible. Both Mr. Erickson and Mr. James testified that they recognized the gunman as the Prisoner. He had Rasta locks at the time. Mr. James ducked for cover behind the jeep as the Prisoner continued to fire. In all he discharged about 4 or 5 rounds into the jeep then he ran off. Mr. James attempted to give chase, the Prisoner who had a head-start turned around and pointed the gun at him then he ran off. Mr. James was not able to catch up with him.

4 In the meantime, Mr. Erickson, who was wounded, drove himself to the Peebles Hospital which fortunately for him was less than two miles away.

5 The Prisoner was arrested the next day when he came to the Police Station as he had heard that the Police was looking for him. The Police never recovered a gun from him despite searches at his home and the case clearly was based only on the alleged recognition of him by Mr. Erickson and Mr. James. The jury obviously relied on that evidence to convict him which they were entitled to do if they were certain that the witnesses were not mistaken. The Prisoner did not testify neither did he call any witnesses. However, on being questioned by the Police he denied that he had shot Mr. Erickson and claimed to be elsewhere at the time of the shooting. Again, the jury by their conviction found that the prosecution had effectively routed that Defence.

Mr. Erickson's Injuries

6 Mr. Erickson received treatment at Peebles Hospital where he was an in—patient for five days. Dr. Ofeanyi Ojuro testified as to the gravity and extent of his injuries. He was shot approximately nine times, to the neck, chest, arms and shoulders. The wound to the upper neck was particularly grave and could have resulted in his death had it been a little lower and, I would add, had it not been for the timely and skilful intervention of his doctors. So too was the wound in the chest. Fortunately, Mr. Erickson appears not to have any resulting disability now as far as the evidence disclosed.

The Prisoner's Antecedents

7 The Prisoner has eight convictions. Three of them are significant as involving violence. One is for common assault in January, 1999, the second is for unlawful and malicious wounding of which he was convicted before the learned Magistrate in June, 2000 and received a fine in default three months imprisonment and the third is for wounding of which he was convicted before the learned Magistrate in May, 2005 and received a 12 month sentence suspended for two years. The Prosecution stated with regard to that last offence, that the weapon used was a firearm which he used to administer a beating to his victim.

Defence in mitigation

8 Counsel, perforce, had little choice but to be brief when faced with his client's antecedents as he readily acknowledged. And, I hazard that the fact that the Prisoner called no character witnesses did not render counsel's task easier. Counsel submitted that the Prisoner was 28 years old and the only mitigating factor that he volunteered was that the Prisoner, although unmarried, had three infant children whom he supported.

9 Counsel submitted that the offence was akin in seriousness to that of manslaughter and that the court should be...