Akim Monah v The Queen

• Jurisdiction: Grenada
• Judge: Blenman JA
• Judgment Date: 23 February 2022
• Judgment citation (vLex): [2022] ECSC J0223-1
• Docket Number: GDAHCRAP2021/0015 (FORMERLY GDAHCRAP2014/0002)
• Court: Court of Appeal (Grenada)

[2022] ECSC J0223-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURTOF 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.]

GDAHCRAP2021/0015 (FORMERLY GDAHCRAP2014/0002)

Between:

Akim Monah

Appellant

and

The Queen

Respondent

Appearances:

Mr. Ruggles Ferguson and Ms. Danyish Harford for the Appellant

Ms. Crisan Greenidge, Senior Crown Counsel for the Respondent 1

Criminal Appeal — Appeal against sentence — Failure of sentencing judge to provide reasons for sentence — Whether sentence manifestly excessive in the circumstances — Constitutional law — Sections 8 and 16 of the Constitution of Grenada — Right to fair hearing within a reasonable time — Unjustified delay in the production of transcript of proceedings — Whether unjustified delay in production of transcript of proceedings by State gives rise to breach of the right to a fair hearing within reasonable time — Redress for breach of fundamental rights — Whether Court can reduce sentence as redress for breach of constitutional rights

Mr. Akim Monah (“Mr. Monah”) was charged with the non-capital offence of murder contrary to section 230 of the Criminal Code of Grenada. He was remanded into custody on 30th June 2012 and pleaded not guilty on his first arraignment. Several months later during his re-arraignment on 14th October 2013, he pleaded guilty. His sentencing hearing was held on

23rd January 2014 after several adjournments. During the hearing, the sentencing judge heard Mr. Monah's then defence counsel's plea in mitigation, Mr. Monah's evidence and his mother's evidence. Upon the request of his then counsel, the sentencing hearing was adjourned to 4th February 2014 to allow an authority to be presented by the defence counsel. On 4th February 2014, Mr. Monah was sentenced to 18 years imprisonment, to run from 30th June 2012.

Mr. Monah, dissatisfied with the decision of the sentencing judge initially appealed against both his conviction and sentence on 24th February 2014. Despite repeated requests by him for the State of Grenada to provide the transcript of the proceedings in the court below in order for him to prosecute his appeal, he did not receive the transcript until 7 years after the date of his sentence. The prosecution of his appeal was therefore delayed in excess of 7 years. Furthermore, the transcript primarily consisted only of brief notes totaling 7 pages from the sentencing judge's notebook which did not indicate any reasons for the imposition of the sentence of 18 years imprisonment on Mr. Monah.

During the hearing of his appeal before this Court, Mr. Monah withdrew his appeal against conviction and sought leave of the Court to advance an additional/alternative ground of appeal, namely that the delay by the State in providing the transcript of proceedings resulted in the delay of the prosecution of his appeal which amounts to a breach of his fundamental right to a fair hearing within a reasonable time as guaranteed by the Constitution of Grenada. Upon noting no objection by counsel for the State, leave was so granted.

The four main issues on appeal were: (i) whether the sentence imposed by the learned judge was manifestly excessive; (ii) if so, whether this Court should exercise its discretion so as to reduce the sentence; (iii) whether the delay by the State in providing the transcript of proceedings in the court below breached the fundamental right to a fair hearing within a reasonable time and (iv) if so, what is the appropriate redress in the circumstances.

Held: dismissing the appeal against sentence on the basis that it was not excessive but allowing the appeal against sentence on the basis that the delay by the State in providing the transcript of proceedings infringed Mr. Monah's fundamental right to a fair hearing within reasonable time and making the orders as set out in paragraphs 87(2)(a) and (b), that:

• 1. Where a sentencing judge fails to provide reasons for the imposition of a sentence, the onus falls on the Court of Appeal to determine whether the sentence was just and appropriate as if the judge had provided reasons. However, the Court will only interfere with a sentence passed by a judge in the court below if there is an error in principle. In this case, it is inappropriate to utilise the new Sentencing Guidelines of the court which were promulgated several years after the date of Mr. Monah's sentencing, to determine whether the judge committed an error of principle. It therefore falls to this Court in determining whether or not the sentence imposed was excessive, to apply the guidelines that were provided by this Court in the cases and which were applicable at that the time of the sentencing hearing. Accordingly, the Court is obliged to give deliberate consideration to: (i) the circumstances of both the offender and the circumstances in which the offence was committed; (ii) the principles of sentencing namely retribution, deterrence, prevention and rehabilitation; (iii) the maximum penalty for the offence and the appropriate notional sentence; (iv) the mitigating and the aggravating factors, weighing them against each other; and (v) the credit to be given to the guilty plea entered on re-arraignment and to the time Mr. Monah spent in custody awaiting sentence. In all of the circumstances of this case and applying the principles stated above, there is no basis upon which the Court can properly conclude that the sentence of 18 years is manifestly excessive. The appeal against sentence on the basis that the sentence of 18 years imprisonment is manifestly excessive is accordingly dismissed.

  Section 230 of the Criminal Code Cap 72 of the Laws of Grenada as amended by the Criminal Code Amendment Act applied; R v Ball (1951) 35 Cr App Rep 164 applied; R v Newsome; R v Browne [1970] 2 QB 711 applied; Romeo DaCosta v The Queen [2011] CCJ 6 (AJ) applied; Callachand & Anor v The State of Mauritius [2008] UKPC 49 applied; R v Sergeant (1974) 60 Cr App R 74 considered; Desmond Baptiste v The Queen High Court Criminal Appeal No.8 of 2003 (delivered 6th December 2004, unreported) applied; Desmond Fletcher v The Queen GDAHCRAP2015/0011 considered.

• 2. Section 8(1) of the Constitution of Grenada guarantees the right to a fair hearing within a reasonable time. This includes the appellate process. Indeed, the main objective of the reasonable time guarantee in relation to the right to a fair hearing, is to ensure that there is efficient disposition of criminal cases. In this case, the State of Grenada conceded that the unjustified delay in the provision of the transcript of proceedings in the court below occasioned a delay in excess of 7 years of the prosecution of Mr. Monah's appeal. This unjustified post sentence delay amounts to an egregious breach of Mr. Monah's fundamental right to a fair trial within a reasonable time as guaranteed by section 8(1) of the Constitution of Grenada. The situation is further compounded by the fact that this matter was not complex and there was not a full trial in the court below as Mr. Monah pleaded guilty to the offence of non-capital murder. Further, the transcript which was eventually produced consisted of only 7 pages of the judge's notes which indicated no reason for the imposition of the sentence.

  Section 8(1) of the Grenada Constitution Act Cap. 128A, Revised Laws of Grenada 2010 applied; Singh v Harrychan [2016] CCJ 12 (AJ) applied; Marin v The Attorney General [2021] CCJ 6 (AJ) applied; Rashid Pigott v The Queen ANUHCRAP2009/0009 (delivered 13th April 2015, unreported) applied.

• 3. The Court has a broad discretion to fashion effective redress to secure the enforcement of fundamental rights. However, the redress which the Court provides is fact sensitive. Furthermore, the fact that the Court finds that a sentence imposed in the court below was not manifestly excessive does not restrict the remedies this Court may grant. Additionally, there is a consistent stream of jurisprudence which has established that a breach of the fundamental right to a fair hearing within a reasonable time of a convicted person can result in the reduction of his or her sentence. In this case, there are therefore no impediments which prevent this Court from fashioning redress which includes a reduction in Mr. Monah's sentence in addition to making a declaration to that effect. Mr. Monah has not withdrawn his appeal and is still serving the sentence of 18 years imprisonment.

  Section 16 of the Grenada Constitution Act Cap. 128A, Revised Laws of Grenada 2010 applied; Maya Leaders Alliance v Attorney General of Belize [2015] CCJ 15 (AJ) applied; Rashid Pigott v The Queen ANUHCRAP2009/0009 (delivered 13th April 2015, unreported) applied; AG's Reference (No. 2 of 2001) [2004] 2 AC 72 applied; Singh v Harrychan [2016] CCJ 12 (AJ) applied applied; Frank Errol Gibson v Attorney General of Barbados (2010) 76 WIR 137 applied; Marin v The Attorney General [2021] CCJ 6 (AJ) applied; Boolell v The State [2006] UKPC 46 applied; Elaheebocus v The State of Mauritius [2009] UKPC 7 applied; Tapper v DPP [2012] UKPC 26 considered; Evans v The Attorney General SCCrApp. No 181 of 2010 (delivered 6th December 2018, unreported) applied; Rambarran and others v R [2019] 5 LRC 431 applied.

• 4. Taking into account the totality of the circumstances of the breach of Mr. Monah's fundamental right to a fair hearing within a reasonable time and the consistent stream of jurisprudence from the Caribbean Court of Justice and Her Majesty's Privy Council, this Court is of the clear view that the appropriate redress that should be granted to Mr. Monah is a reduction of his sentence of 18 years imprisonment by 2 years or 24 months. Consequently, his sentence of 18 years is set aside and a sentence of 16 years is substituted therefor. In addition, the Court grants a declaration that...