The King v Klivon Neckles
| Jurisdiction | Grenada |
| Judge | Innocent, J. |
| Judgment Date | 29 February 2024 |
| Judgment citation (vLex) | [2024] ECSC J0229-6 |
| Court | High Court (Grenada) |
| Year | 2024 |
| Docket Number | CASE NO. GDAHCR2021/0016 |
CASE NO. GDAHCR2021/0016
IN THE SUPREME COURT OF GRENADA
AND IN THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CRIMINAL)
Sentencing — Rape — Section 177 Criminal Code — Indecent Assault — Section 176 Criminal Code — Factual basis of sentence — Interpretation of jury's verdict — Correct approach — Compendium Sentencing Guideline of the Eastern Caribbean Supreme Court (the ‘Guideline’) — Defendant entering plea of guilty to offence in respect of one count on the indictment charging indecent assault prior to being tried on two other counts of rape and indecent assault contained in the same indictment — Defendant acquitted after trial on remaining two counts of rape and indecent assault — All three counts on the indictment arising from the same transaction — Consent only issue at trial — Fact finding for the purpose of sentencing — Onus and standard of proof — Pretrial delay — Whether the circumstances of the case warranted a departure from the sentencing guidelines in the exercise of the court's sentencing powers relative to sentencing — Court not invited to consider the question of vacating the defendant's plea of guilty in light of the jury's verdict — Whether the court can of its own volition and at present stage of the proceedings vacate the defendant's plea and enter a plea of not guilty
Mr. Jerry Edwin of Counsel for the Defendant
Mr. Jordan Marshall, Crown Counsel for the Crown
Mr. Klivon Neckles (hereafter referred to as “Mr. Neckles”) was initially indicted on 9 th April 2021 for the offence of rape relative to events that occurred on 18 th February 2017. Mr. Neckles had pleaded not guilty to all counts on the indictment on 7 th May 2021.
The prosecution subsequently filed a new indictment dated and filed 31 st January 2024 and withdrew the previous indictment. The new indictment contained three counts, namely: rape and two counts of indecent assault.
On 1 st February 2024, Mr. Neckles who had previously pleaded not guilty on the single count of rape contained in the first indictment, was arraigned upon the subsequent indictment, and upon his being arraigned pleaded not guilty to the first two counts contained in the second indictment but guilty on the third count.
The trial commenced on 2 nd February 2024 in respect of the first two counts in the indictment. On 13 th February 2024, the jury returned verdicts of not guilty on the first two counts contained in the indictment. The ultimate question that the jury had to decide at the trial was whether the prosecution had established beyond a reasonable doubt that the complainant did not consent to the acts of a sexual nature committed by the defendant.
The matter came on for a sentencing hearing on 16 th February 2024 and Counsel for Mr. Neckles in his oral submissions raised the point, albeit after some prompting by the court, that the jury's verdict in respect of the first two counts on the indictment meant that the prosecution had failed to prove the absence of consent and that it followed that the court should take this into account in considering the defendant's guilty plea to count three.
The dilemma which the court faces in sentencing Mr. Neckles arises within the context of the jury's finding of fact in relation to the question of consent upon Mr. Neckles' trial for the first two offences charged in the indictment, which ultimately lead to their verdict of acquittal.
Another issue which poses a challenge to the court is whether, at this stage of the proceedings, it is open to the court to vacate the defendant's guilty plea and substitute a plea of not guilty and thereafter discharge the defendant. This point was raised by the court of its own volition, having considered the question of the interpretation of the jury's verdict based on their finding of fact relative to the issue of consent. It is unfortunate that the court did not have the benefit of either written or oral submissions of Counsel on this point which the court finds salient to the present proceedings.
The other question that arises on sentencing Mr. Neckles is the issue of whether the circumstances surrounding the jury's finding and the element of delay are factors that are capable of triggering the court's discretion to depart from the sentencing guidelines or whether ultimately they ought to be considered squarely within the context of the guidelines themselves in determining what sentence to impose.
Although all of these points were not canvassed by Counsel for the defendant in his written submissions, the court has deemed it appropriate that they be considered in the interest of fairness and justice in the administration of the criminal courts. Indeed, the court has a solemn obligation to guard against the likelihood of miscarriages of justice occurring in the criminal justice system.
At the sentencing hearing, Counsel for the defendant made oblique reference to the fact that the jury having found the defendant not guilty on the other counts of rape and indecent assault, it would be unfair in these circumstances to impose any sentence on the defendant. Counsel for the defendant appeared to have premised his argument on the fact that the jury having found that the prosecution had failed to establish the absence of consent to the necessary standard meant that the jury's findings conflicted with the defendant's guilty plea.
The first observation that the court makes is simply that there was no finding by the jury in respect of count three on the indictment to which the defendant entered a plea of guilty. There has been no application from the defendant to vacate his plea. It stands to reason therefore, that the court can comfortably operate on the assumption that his plea was voluntary. There has been no allusion to the fact that the voluntary nature of his plea is capable of challenge.
The court is also fortified in its view by the fact that the count to which the defendant entered the plea of guilty arose at a different point in time during the course of the transaction that gave rise to the other counts in the indictment. In the court's view, the defendant's plea of guilty signifies an acceptance of the fact that at that particular point in time, the complainant had withdrawn her consent to the act of a sexual nature perpetrated by the defendant. Clearly, there can be no other interpretation that is consonant with the legal principles as they relate to the question of consent in the commission of sexual offences of this nature.
On the foregoing basis, the court has determined that for all intents and purposes, this issue can be whittled down and faded to a vanishing point and ought not to factor into the court's considerations upon the sentencing hearing. Therefore, there is no basis to interfere with the defendant's guilty plea. Accordingly, his plea does not stand to be vacated.
The context of the present case stands in contradistinction to a situation where, for example, the court is required to establish the factual basis for sentence based on an interpretation of the jury's verdict. The situation clearly does not arise in the present case. Where a situation as in the latter case arises the approach of the courts has always been that, after a trial, the approach to the determination of the factual basis upon which to pass sentence, is that if there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. However, when there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.
The foregoing pronouncements are made only to amplify the point that the situation adverted to, albeit obliquely, by Counsel for the defendant simply does not arise in the present case. What arises however, in the court's considered view, is whether the defendant can rely on that issue as a matter of mitigation. It cannot, in the court's view, be otherwise for the simple reason that there is no general issue that is joined between prosecution and offender in these sentencing proceedings; there is no such joinder of issue. In the ordinary course of things it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. It is noteworthy that the court has confined itself to the expression “if necessary” because the calling of evidence would be required only if an asserted fact was controverted or if the judge was not prepared to act on the assertion.
Therefore, at the sentencing hearing, the convicted person must raise mitigating factors by adducing evidence, unless the mitigating factors are obvious from the basis of the plea. The onus is on the Crown to negative the presence of mitigating factors beyond a reasonable doubt. It is only trite that the sentencing court may not take facts into account in a way that is adverse to the interest of the convicted person unless those facts are established beyond a reasonable doubt. The convicted person carries the burden of proving on a balance of probabilities matters relative to mitigation submitted in his favour. This principle finds its applicability in relation to the question of intention and planning and the question of the absence consent in the commission of the offence.
In the present case, however, the defendant by pleading guilty to indecent assault has accepted the presence of all the constituent elements of the offence. By his own plea of guilty the defendant has...
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