IN THE COURT OF APPEAL BETWEEN AND *************

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO Criminal Appeal No. 21 of 2013 IN THE COURT OF APPEAL BETWEEN RAFFIQUE MOHAMMED also known as PUNCHIN Appellant AND THE STATE Respondent ************* Panel: P. Weekes J.A. A. Soo Hon J.A. R. Narine J.A. Appearances: Mr. M. Merritt for the Appellant. Ms. J. Honore -Paul for the Respondent DATE DELIVERED: 20 th November, 2014 Page 1 of 9

2 JUDGMENT Delivered by R. Narine J.A. 1. On 13 th June 2013, the appellant was found guilty of manslaughter by reason of provocation having been tried by a judge and jury on an indictment for murder. He was sentenced by the judge to a term of 23 years hard labour. He has appealed the sentence. 2. On 19 th June 2006 the appellant stabbed his wife Marian Petit-Paul Mohammed repeatedly with a knife. She died as a result of injuries to her neck, and left upper chest. The attack took place at the deceased s apartment at Edinburgh Village, Chaguanas and was witnessed by her two sons then aged 8 and 9 years. 3. The murder took place only a few months after the deceased obtained a Protection Order against the appellant under the Domestic Violence Act 1999 prohibiting the appellant from assaulting or beating the deceased or causing her harm, and restraining him from entering premises at 469 Mayo Road, Tortuga, where the couple then lived. 4. The appellant gave evidence and called five witnesses. He testified that after the birth of their second son, the marriage started to go haywire. He claimed that the deceased would leave home for periods of up to three weeks and return with love bites on her body. On one occasion after she left with the children, he received information that she was living at Preysal with a man called Rishi, the son of state witness Mardaye Rampersad, also called Jenny. Sometime after, she left home to live with a man named Rooplal at Mayaro. These incidents caused conflicts between them which resulted in the deceased applying for the protection order. Page 2 of 9

3 5. About a week before the murder the appellant moved to No. 168 School Street, Edinburgh Village, Chaguanas where the deceased had rented an apartment. He claimed that the deceased had invited him to live there for the sake of the children. After he returned, she disappeared for several days and returned with marks on her neck. Upon her return she insisted that he should leave the apartment. He tried talking to her, but she kept insisting that he should leave. She was shouting and using obscene language. He told her how much he wanted the relationship to work and how much he loved her and the children. She told him that he should not be studying the children because he was not around when she was fucking to make them. It was then that he felt that somebody had ripped his heart out and everything was just flashing back. He went to the kitchen to get a cigarette. The deceased started to shove him out of the house shouting for him to get out. Everything happened very quickly. Before he knew it he had a knife in his hand and she was on top of the clothes box with stains on her jersey. He called out to her, but she did not respond. He picked up his bag, threw the knife in front of the house and left the apartment. 6. In mitigation, Mr. Merritt made the following submissions: (i) The appellant was willing to plead guilty to manslaughter at the beginning of the trial. The state rejected the plea. The jury eventually convicted for manslaughter by reason of provocation. If the state had accepted the plea, the court would have saved precious judicial time and the children would have been spared the trauma of giving evidence and reliving the incident. By reason of his offer to plead guilty to manslaughter, the appellant was entitled to a reduction in sentence. (ii) Upon his arrest the appellant co-operated with the police. He confessed to the killing, and assisted the police in finding the weapon. (iii) The appellant showed remorse for his actions. He immediately sought medical attention for the deceased by calling an ambulance. He also asked the landlord s son to call an ambulance. Page 3 of 9

4 (iv) The provocative conduct took place over a significant period of time. Since the birth of their second child, some eight years before the incident, the deceased had been engaging in acts of infidelity. The court should take into account the detrimental cumulative effect of the deceased s provocative conduct. (v) The refusal of the state to accept the plea to manslaughter resulted in the appellant being unnecessarily exposed to a conviction of murder which carries the mandatory death sentence. This caused the appellant unnecessary trauma and suffering. 7. We find the aggravating factors in this case are: (i) The killing took place after the deceased had sought and obtained a Protection Order in the Magistrates Court to restrain the appellant from assaulting or beating her. (ii) The killing took place in the presence of the couple s two small children ages 8 and 9 at the time. (iii) The seriousness and prevalence of the offence 8. Mr. Merritt contends that the appellant is entitled to a discount on sentence, having regard to his offer to plead guilty to manslaughter at the outset of the trial. The prosecution admit that by letter dated 23 rd September, 2011 the appellant indicated his willingness to plead guilty to manslaughter. The offer was rejected by the state on the basis that the issue of provocation did not arise on the state s case. The provoking conduct which the appellant put forward at the trial, was not disclosed in the appellant s interview with the police on 21 st June, 2006, nor was it reflected in the appellant s written statement of 22 nd June, 2006, given in the presence of a Justice of the Peace. There was no mention in the interview or the statement of any infidelity on the part of the deceased, or any suggestion by the deceased that the children were not the appellant s. The interview and the statement, however, recount that the deceased was quarrelling, demanding in loud Page 4 of 9

5 tones that the appellant should leave, and when he was about to leave, she pushed him in an effort to get him out of the door. 9. Having regard to the dearth of evidence of provocation on the state s case, it was not unreasonable for the state to reject the appellant s offer to plead guilty to manslaughter. Curiously, the appellant did not plead guilty to manslaughter when arraigned before the jury, and proceeded to challenge the state s case vigorously subjecting the two children to an intense and unnecessarily prolonged crossexamination. 10. It must be bore in mind that an offender who is acquitted of murder by the jury, but found guilty of the lesser count of manslaughter by reason of provocation, has already had the benefit of a statutory reduction in sentence. For these reasons we attach little weight to the appellant s initial offer to plead guilty to manslaughter. 11. The appellant further contends that he should be given credit for cooperating with the police and assisting them in finding the weapon. However, this was not a case in which the appellant turned himself in to the police. He was in fact arrested by the police the day after the killing, at Tortuga Village. Upon seeing the police, he began to run, and stopped only when the police called out to him. In addition, after the incident, the appellant disposed of the weapon by throwing it outside of the house, before he left the premises. After his arrest, the appellant admitted to the killing in an interview with the police on 21st June 2006, and in a written cautionary statement the following day. He subsequently took the police to the scene of the killing and assisted them in retrieving the knife. 12. The appellant further contends that he showed genuine remorse for his actions by immediately seeking medical attention for the deceased by calling an ambulance himself and also by asking the landlord s son to call an ambulance. The evidence was however, that after he killed the deceased, and was walking out the apartment he told the state witness Mardaye Rampersad. She dead you know, I kill she. When asked whether he had killed Marian, he replied Yes, I kill she fucking dead. Page 5 of 9

6 13. In his written statement the appellant related that when he was on his way out of the premises, the landlady s son asked him whether Marian was okay. He responded that she was not okay, and he should call an ambulance. According to the appellant himself he did not call an ambulance until he had arrived at Tortuga Village, having left the scene at Edinburgh Village sometime earlier. On the totality of the evidence it is difficult to find any persuasive evidence of genuine remorse on the part of the appellant. 14. The appellant further submitted that the court should take account of the length of time over which he was subjected to the provocative conduct, and the detrimental cumulative effect on him. In our view, the jury has already given the appellant credit by returning a verdict of manslaughter by reason of provocation. In addition, we can find no reason for giving the appellant credit for his exposure to a verdict of murder which carries the mandatory death sentence. The appellant by his own actions caused himself to be charged for murder, and was extremely fortunate on the evidence to have been convicted for the lesser offence of manslaughter. 15. We now consider the aggravating factors in this case. Foremost in our minds is the fact that the killing took place while a protection order granted to the deceased under the Domestic Violence Act was in force. In addition, while the order was barely a month old, the appellant admitted to breaking the order by inflicting severe violence on the deceased, breaking her nose with a rolling pin. He was sentenced to six weeks imprisonment on 11 th April, The killing took place on 19 th June 2006, barely a month after his release. 16. From the evidence, between the date of issue of the protection order and the day of the incident, the deceased relocated from her home at Tortuga Village, which the appellant was restrained from entering, to the apartment at Edinburgh Village. From the evidence of Mardaye Rampersad, and from the appellant himself, on the day of the incident, she was pleading for him to leave. Page 6 of 9

7 17. This court considers the total disregard by the appellant of the terms of the protection order, to be an aggravating factor of the utmost gravity. The deceased had availed herself of the protection of the court in order to escape the brutish tendencies of the appellant. The court by its sentence must send a clear message to those who would flout its orders, to expect severe consequences. 18. Another factor which weighs heavily with this court is the fact that the killing was done in the presence of the couple s two infant children. The trauma of having witnessed their mother s killing is likely to leave serious psychological and emotional scars on the children. What aggravates the matter even more was the brutality of the attack on the deceased. The appellant inflicted seven penetrating stab wounds on the deceased on her neck, chest, back and arm. 19. The court must also take account of the gravity of the offence, and the prevalence of domestic killings in recent times. 20. In considering the sentence to be imposed in this case, we take account of the objects of sentencing as sent out by Wooding C.J. in oft cited case of Benjamin v. R 7 WIR 459, namely: (i) (ii) (iii) (iv) (v) The retributive function, that is to punish the offender, so as to reflect the society s abhorrence for the unlawful conduct; The deterrent function vis-a-vis the potential offender; The deterrent function vis-a-vis the particular offender; The preventative function, that is, to remove the offender from the society so as to prevent him from re-offending; The rehabilitative function, that is, to reform the offender so that he may re-enter the society and make a positive contribution. 21. We also take guidance from the case of Farfan v. The State Cr: App. No. 34 of 1980 in which Bernard J.A. (as he then was) considered that having regard to the Page 7 of 9

8 particular circumstances of the case, some of the objects of sentencing may loom larger than the others. In this case we consider that the retributive factor, and the deterrent factors carry more weight than the others. By its sentence the court must emphatically convey its abhorrence for this particular kind of conduct, and its insistence that protection orders are to be strictly obeyed. In addition, the court must send a clear warning to others of like mind that it will not tolerate this type of conduct. Further the court by its sentence will deter the appellant from repeating this type of behaviour. 22. In considering sentence the trial judge considered a number of decisions of this court in recent cases. In Paul Cox v. The State (unrep.) Cr. App. No. 24 of 2006, the appellant was sentenced to 25 years hard labour for the killing of his girlfriend. In sentencing, the court noted the increased number of senseless and brutal killings and stated that offences of this nature must attract the upper end of the scale, while recognizing that each case must be dealt with on its own merits. In Peter Cadette v. The State (unrep.) Cr. App. No. 27 of 2005, this court imposed a sentence of 20 years, in a case where the appellant had launched a brutal attack on his wife, severing her head with a cutlass, and fatally injuring their child. The attack took place during a confrontation with his wife over her relationship with a third party. In Junior Colin Nicome v. The State (unrep.) Cr. App. No.83 of 1999, the appellant was sentenced to 20 years hard labour, for the brutal killing of his girlfriend. In Ashton Lee v. The State (unrep.) Cr. App. No. 73 of 2001, the appellant was sentenced 20 years hard labour for killing his common law wife during a frenzied attack. 23. It must be emphasised that each case must be considered on its own facts. However, the more recent cases indicate a sentence of 20 years or more for offences of this kind. In imposing sentence the trial judge gave careful consideration to the mitigating and aggravating factors, the objects of sentencing and sentences in recent cases. In the circumstances of this case he considered that the appropriate sentence to be imposed was 30 years, from which he Page 8 of 9

9 deducted the time spent in pre-trial custody, thus arriving at a sentence of 23 years hard labour to run from the date of conviction. 24. Having regard to the particularly grave aggravating factors in this case, we are not persuaded that the trial judge s sentence was unduly severe. 25. Accordingly, we dismiss the appeal against sentence, and affirm the sentence of 23 years hard labour to run from the date of conviction. Dated the 20 th day of November, P. Weekes J.A. A. Soo Hon J. A. R. Narine J.A. Page 9 of 9