A man accused of rape in Grenada can count himself lucky.
The suspect Klivon Neckles has ended up with a suspended jail sentence after a hearing in front of a high court judge.
Neckles was represented in the case by attorney-at-law Jerry Edwin while Crown Counsel Jordan Marshall represented the State in the matter.
As a public service, THE NEW TODAY reproduces the full judgment delivered in the matter by the sitting high court judge Shawn Innocent.
[32] In making the adjustment for the aggravating factors relative to the defendant the court took the view that any aggravating factors found would ostensibly amount to double counting of the factors identified by the court in the consideration of the degree of harm and degree of culpability in determining the seriousness of the offence.
[33] However, in assessing the aggravating factors, the court took into consideration that the offence occurred at night and in an environment alien to the complainant and where the victim clearly did not feel safe.
[34] In addition, the offence occurred while the victim obviously withdrew her consent or did not consent to the defendant’s conduct. The defendant continued despite the victim’s protest and only stopped after she had vomited which suggests an element of recklessness on the part of the defendant as to the likelihood of the risk of his dastardly act not having been consented to, of which he must have been aware.
[35] In the circumstances, the court has adjusted the term of 4 years and 6 months upwards after taking into account the aggravating and mitigating factors relative to the commission of the offence and in relation to the defendant, within the range of 30% to 60% prescribed statutory penalty. In the court’s view, an assessment of the aggravating and mitigating factors warrants an uplift from the 45% of the statutory penalty prescribed by the Guidelines. Therefore, the court has assessed the appropriate sentence for the offence as falling at 50% of the period of imprisonment prescribed by statute. Accordingly, the court will impose a sentence of 5 years imprisonment on the defendant.
[36] The court has assessed the aggravating and mitigating factors relative to the defendant. It cannot be said by any stretch of imagination that the defendant is of relatively good character. He is no stranger to the judicial system. Although the defendant has no previous convictions for any similar offence or sexual offence.
[37] The court has considered whether and to what extent the defendant is entitled to a discount from the overall sentence to take account of his guilty plea. Generally the court has a discretion to deduct a period equivalent to 1/3 of the actual sentence on account of the defendant’s guilty plea where the plea was entered at the earliest available opportunity. Where the plea has not been entered at the earliest available opportunity, the court can in its discretion deduct a lesser period depending on the circumstances of the case. In the present case, given the timing of the second indictment it cannot be said that the defendant entered the plea at a late stage of the proceedings. Indeed, it was at the first available opportunity when the second indictment was presented. In fact, the defendant had waived his right to service of the new indictment. Therefore, the court will credit the defendant for his guilty plea with a discount of a period of 1/3 of the actual sentence being 1 year and 6 months’ imprisonment.
[38] The court has also considered the question of whether the defendant is entitled to any discount from the overall sentence to take account of the delay arising in the present proceedings. Counsel for the defendant has presented the question of delay as a factor which the court ought to take into account in determining the quantum of any sentence which the court is minded to impose. It is indeed unfortunate that the court did not have the benefit of full and substantial submissions from counsel on either side. The court is mindful of the fact that delay does not translate into an automatic reduction in sentence. The sentencing court is required to adopt a principled approach to the issue which mandates that an inquiry be conducted to determine the cause, facts and circumstances that have contributed to the delay.
[39] Although there appeared to be some concession made by the prosecution that delay is a factor which the court ought to take into account in determining the length of sentence, the substantial causes for the delay and how the defendant may have likely suffered prejudice, if any, as a result of such delay has not been articulated before the court. However, given the length of the delay in this matter as chronicled in the record of proceedings, it may be appropriate to examine the record with a view to determining whether the delay ought in light of the prevailing circumstances, warrant a reduction of sentence. However, before doing so it will be necessary to examine the approach that the court should adopt and the existing legal principles set out in the jurisprudence on this issue.
[40] It is well settled that a defendant has a constitutional right to a fair hearing within a reasonable time, before a fair and impartial tribunal established by law. In an appropriate case, the court ought to address the question of delay as it relates to sentencing in a criminal trial. Delay in a criminal case which constitutes a breach of a defendant’s constitutional right to a fair hearing within a reasonable time will always be a factor to be considered in deciding upon the appropriate disposal.
[41] The factors relevant to the cause of the delay ought to be assessed in determining whether there has been any breach of a defendant’s constitutional right. Where a breach of this constitutional right has been established, the sentencing court should consider whether there should be any effect on the sentence that would have been passed if there had been no delay.
[42] In the case of Violet Hodge v The Commissioner of Police the Court of Appeal of the Eastern Caribbean Supreme Court dealt with the question of the relevance of delay in criminal proceedings to sentencing. Baptiste JA, delivering the judgment of the court said:
“The principles regarding delay can be summarized as follows. In determining sentence, there is a need to have regard to any failure to proceed with a case with due expedition. Excessive delay can affect the question of the justice of the sentence. Delay in bringing an accused to justice is recognised as a mitigating factor that can be taken into account in sentencing and its effects can be recognised by a reduction in sentence. One has to examine the extent to which a defendant or appellant has been prejudiced by the delay per Lord Hope at paragraphs 53 and 54 of Mills v Her Majesty’s Advocate. “A judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly” per Lady Hallett in R v Kerrigan at paragraph 56. This is very much a residual general discretion to correct any perceived injustice. Delay is undoubtedly of relevance to the broad question of what a just sentence is when eventually and belatedly conviction occurs, per Vice President Hughes LJ in Attorney General’s Reference No. 79 of 2009. He emphasised that applications for reductions in sentence would be unusual.
With the guidance provided by the cases, this Court has to consider whether the magistrate erred in failing to make a specific allowance for delay in imposing sentence. There was ample material to support the assessment that the magistrate should have considered the issue of delay as a mitigating factor conducing to a reduction in sentence. The question of whether delay is excessive is really fact sensitive. The magistrate gave no reason for not factoring in delay as a mitigating factor. It is therefore open to this Court to exercise its discretion by assessing the facts and making a judgment as to what is required. There is no automatic right to a reduction in sentence on the ground of delay. As has been seen, the court possesses a residual discretion in the matter, per Mr. Justice King in R v Phillips et al:
‘Discretion by definition requires a court to exercise an assessment of the facts and to make a judgment as to what is required’”
“There was undoubted delay for which the appellant was not responsible. There would be anxiety resulting from the prolongation of the proceedings. Delay related grounds may justify an adjustment to sentence; one of the grounds would be the anxiety resulting from prolongation of the proceedings per Lord Hope in Mills v HM Advocate. Reference has already been made to the appellant’s state of health. In the circumstances, the court in the exercise of its discretion considers that a one year reduction for delay would be fair. The sentence of six years is accordingly reduced to five years.”
[43] Given the substantial and inexplicable delay in this matter coming on before the court particularly in light of the late stage at which the new indictment was filed, the court has formed the view that the defendant is entitled to a discount on account of the delay. Accordingly, the court will discount a period of 1 year and 4 months from the notional sentence.
[44] The defendant was bailed shortly after being arrested and therefore, the time which he spent remanded was approximately 4 days. He will be credited for such time.
[45] In the premises, the sentence which the court is minded to pass is 2 years’ imprisonment. The court has given considerable thought to whether the defendant should serve any period of incarceration in fulfillment of this sentence or whether the court ought to order that the sentence be suspended. The defendant has no previous convictions for any similar offence. The court also took into account the circumstances in which the offence occurred and the contrition expressed by the defendant which is implicit in his early guilty plea. Additionally, the defendant’s last offending was in 2015 for a dissimilar offence. Therefore, the court will order that the sentence of 2 years’ imprisonment be suspended. The sentence of 2 years’ imprisonment herein shall not take effect unless, during the period of 1 year from the date sentence is pronounced, the defendant commits another offence punishable with imprisonment and thereafter a court having power to do so orders that the original sentence shall take effect with or without variation of its terms.
[46] It would be remiss of the court if it did not state emphatically that the type of sentence imposed on the defendant in the present case is not intended to send the message that offences of a similar nature will be dealt with by the proverbial slap on the wrist. Neither is the punishment meted out to the defendant intended to convey the impression that it is a seemingly convenient method of palliating the wrong committed by the defendant towards the victim. The imposition of a suspended sentence ought to be properly regarded as punishment and not a convenient alternative to imprisonment. Misogyny of any form ought to be deprecated.
[47] No evidence has been presented to the court whereby the court is mandated to consider the necessity for the making of any ancillary orders. There is no basis upon which the court can exercise its discretion in that regard. Therefore, the court makes no ancillary orders.
Shawn Innocent
High Court Judge
By the Court
Registrar