[1] The Director of Public Prosecutions [2] The Magistrate, Eastern Magisterial District, St. David [3] The Commissioner of Police Appellants v [1] Roddy Felix [2] Edward Gibson [3] Shawn Ganness [4] Wendell Sylvester [5] Kenton Hazzard Respondents

• Jurisdiction: Grenada
• Judge: Morley J,Webster JA,Louise Esther Blenman,Justice of Appeal,Mario Michel
• Judgment Date: 26 April 2017
• Judgment citation (vLex): [2017] ECSC J0426-5
• Docket Number: GDAHCVAP2013/0007 GDAHCVAP2013/0009,ANUHCR2015/117
• Court: Court of Appeal (Grenada)
• Date: 26 April 2017

[2017] ECSC J0426-1

EASTERN CARIBBEAN SUPREME COURT

THE HIGH COURT OF JUSTICE

ANUHCR2015/117

Regiina

and

Camroy Webber

APPEARANCES

Miss Rilys Adams appeared for the Crown.

Dr. David Dorsett appeared for the defendant.

Morley J

1 Camroy Webber (dob 10.10.70) falls to be sentenced following conviction on 20.01.17 after jury trial for an offence of serious indecency when 43 on a child J aged 3 on 03.12.13 on Barbuda.

2 The circumstances are that he often visits J's home as a friend of the family, known a Bozo. On the day, J's cousin, SN was present, as an adult, packing to leave the island, and left J with the defendant in the lounge watching tv. Looking for her later, she was no longer in the lounge. She approached a bedroom door, and her evidence at trial was: ‘I pushed open the door. I saw Bozo with his pants down. My niece was bent over the bed. Her pants were down. Bozo was behind her. He was bent over her. His dark grey jeans were down to his ankles. I could see the boxers he had, at his ankles. There were no clothes on his body. My niece's pants were down, she was bent over the bed, he was right behind her. I could not see his private parts, his penis. I thought he was actually inside of my niece at that point. He automatically backed away as I opened the door. I grabbed my niece. I remember screaming her name. He backed away from her. I grabbed my niece. He went past me in the doorway, yelling at me, ‘you didn't see anything, you didn't see anything’. I ran out of the room. I went to the bedroom where I had been packing my clothes. I took J with me. I proceeded to check J. I checked her vagina, to see if she was bleeding, because from the positon I found her in it looked as if he was having sex with her. She was not bleeding. I went to the living room, to see if he had left, and to call for help. I saw him run out of the house. I ran behind him, yelling at the village for help to catch him. I called J's dad, to call the police.’ And under cross-examination said: ‘He was behind my niece, I could not see his penis, he was moving up and down behind her, like he was having sex, with a three year old’.

3 For the purposes of sentence the Court will ignore that J said later to SN that the defendant did this all the time, as it was not led in trial, so that he will be sentenced for one event only.

4 The basis for the sentence will be that he had exposed his penis and was pressing it to the child's exposed genital area from behind her, in a simulation of intercourse.

5 This offence is so serious that only a custodial sentence can be justified. There should also be deterrence. The offence is contrary to s15(1)(a) of the Sexual Offences Act 1995 on Antigua and Barbuda, and the maximum is 10 years. The Court has chosen to be assisted by the UK sentencing guidelines, for the offence of sexual assault of a child under 13, under s7 of the UK Sexual Offences Act 2003, at Blackstones Criminal Practice 2017, 1 ^st supplement, at para SG-99, and for which the maximum is 14 years. Considering the abuse of trust, as the defendant was in a relationship with the child's grandmother, the offence is assessed as being in category 2A, with a starting point of 3.5 years, adjusted down from 4 years in the UK owing to the different maxima.

6 Turning to aggravating features, the age of the child, being three, and far below the threshold age of 13, while the defendant is in middle age, being at the time 43, in combination are particularly aggravating. So too is the precise nature of the event, which was simulated intercourse while genitally naked, rather than for example simple touching. These features increase the offence by two years to 5.5 years.

7 Turning to the mitigation features, the defendant is of good character. However, at 43, he can be expected in mature adulthood to have known better not to interfere with a child of 3. His good character will reduce the sentence by six months. It is not considered mitigation that thankfully assessment on 08.01.17 by psychotherapist Jean Michelle Benn-Dubois of the child thankfully does not currently show psychological damage.

8 There is no discount available for plea, as there was none.

9 From his pre-sentence report by Shawn Maile of 27.02.17, the defendant has been described as well-liked and this offending as out of character (though there is some suggestion from the child's father there are other unreported matters, which the court ignores). He is therefore not assessed as dangerous, so that no further adjustment of the sentence is necessary.

10 The sentence for simulated intercourse while genitally naked by this defendant of good character when aged 43 on a child, in the position of his grandchild, aged 3 on conviction by the jury is 5 years (60 months). Time on remand will count. There will be remission after completing 2/3 of the sentence, being 40 months, to the satisfaction of the prison.

The Hon. Mr. Justice Iain Morley QC

26 April 2017

[2017] ECSC J0426-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

GDAHCVAP2013/0007

GDAHCVAP2013/0008

GDAHCVAP2013/0009

Between:

[1] The Director of Public Prosecutions

[2] The Magistrate, Eastern Magisterial District, St. David

[3] The Commissioner of Police

Appellants

and

[1] Roddy Felix

[2] Edward Gibson

[3] Shawn Ganness

[4] Wendell Sylvester

[5] Kenton Hazzard

Respondents

Appearances:

Mr. Thomas W. R. Astaphan, QC, with him Mr. Dwight Horsford, Solicitor General and Mr. Deon Lawrence Hibbert for the Appellants

The Director of Public Prosecutions, Mr. Christopher Nelson in person Dr. Francis Alexis, QC, with him Ms. Olabisi Clouden for the Respondents

Civil Appeal — Preliminary inquiry — Coroner's inquiry — Section 71 of the Grenada Constitution Order, 1973 — Section 9 of the Coroners Act — Section 78 of the Police Act — Whether power of the Director of Public Prosecutions and/or the Commissioner of Police to initiate criminal proceedings is suspended pending outcome of a coroner's inquiry when a person dies in circumstances that bring section 9 of the Coroners Act into play

This appeal arises out of the decision of the learned judge by which he quashed the decisions of the Commissioner of Police ("the Commissioner") to charge Royal Grenada Police Force officers, Messrs. Roddy Felix, Edward Gibson, Shawn Ganness, Wendell Sylvester and Kenton Hazzard ("the respondents") with the manslaughter of Mr. Peter Oscar Bartholomew ("Mr. Bartholomew") and suspend them from duty, and prohibited the learned magistrate from proceeding with the preliminary inquiry into the charges of manslaughter against the respondents.

On 26 ^th December 2011, the respondents were on duty at the St. David's Police Station when Mr. Bartholomew was taken into custody. It is alleged that he was being aggressive towards the police officers and they had to subdue him and place him under arrest. Mr. Bartholomew collapsed and was taken to the hospital where he died the following morning. The police carried out an investigation into Mr. Bartholomew's death and subsequently detained, questioned and charged the respondents with the offence of manslaughter arising out of the death of Mr. Bartholomew. The respondents later received letters from the Commissioner notifying them that as a result of the charges of manslaughter they were suspended from duty on half month's pay.

The magistrate for the Eastern Magisterial District of Saint David ("the magistrate") then commenced a preliminary inquiry into the manslaughter charges. The respondents' counsel challenged the magistrate's decision to proceed with the preliminary inquiry without holding a coroner's inquiry or inquest. The Director of Public Prosecutions ("the DPP") opposed the challenges. Consequently, the respondents commenced proceedings in the High Court seeking, inter alia, an order of certiorari quashing the Commissioner's decision to lay manslaughter charges against them and to suspend them from duty with half month's pay, and an order of prohibition prohibiting the magistrate from holding a preliminary inquiry into the manslaughter charges without first holding a coroner's inquest into Mr. Bartholomew's death in compliance with the provisions of the Coroners Act.

The learned judge determined that the two main issues for consideration were whether section 9 of the Coroners Act imposes on the coroner a mandatory requirement to conduct an inquest in the circumstances of this case and whether the Commissioner and the DPP had the power to charge the respondents with manslaughter without holding a coroner's inquiry and inquest pursuant to the provisions of the Coroners Act. The learned judge found that section 9 is mandatory and the coroner was duty bound to inquire into the cause of Mr. Bartholomew's death and to conduct a coroner's inquest. The learned judge further found that the holding and completion of such an inquest under section 9 was a condition precedent to the institution of criminal proceedings by the DPP or the Commissioner against the person or persons suspected of having caused the death. Consequently, the constitutional powers of the DPP to initiate criminal proceedings were suspended until after the completion of the coroner's inquest and the preferment of the manslaughter charges, the suspension of the respondents from duty and the reduction of their salaries by the Commissioner were premature. The judge therefore granted the relief prayed for by the respondents.

The appellants appealed against the learned judge's decision on the grounds that he erred in holding that the power of the magistrate qua coroner under the Coroners Act had to be exercised before those imposed on the magistrate under sections 94, 95, 97–99 of the Criminal Procedure Code which...