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Cr. App. No 3 of 2004







Panel: R. Hamel-Smith, J.A L. Jones, J.A. S. John, J.A.

Appearances: Mr. Devan Rampersad for the Appellant Ms. Dana Seetahal for the Respondent

Date: October 7, 2004.


REASONS R. Hamel-Smith, J.A.

1 After hearing counsel for the appellant and the respondent on September 23, 2004 we dismissed the appeal and promised to give our reasons for doing so at a later date. We do so now. 2 On December 8, 2003, the appellant, Allan Ramdass, pleaded guilty to the alternative lesser offence of manslaughter on a charge of murder. The plea was accepted by the State and by the trial Judge. He was sentenced to 15 years hard labour to follow a ten-year sentence that he was then serving. His appeal is against that sentence. 3 It is first necessary to rehearse the facts that were presented by the prosecution when the plea of guilty was entered. Beulah Farrell, (“the deceased”) aged 78, lived alone on Manahambre Road, Princes Town in December 2000. Her neighbour, David Phillips, was in the habit of calling out to her every morning when they would chat briefly but on the morning of December 14 when he did so she did not respond. When he investigated he observed the back door open and the house ransacked. He called the police. 4 The appellant, in the meanwhile, was engaged in purchasing or attempting to purchase cocaine from one Leon Seepaul whom he met on Manahambre Road on the evening on December 13. He had no money on him to pay for the drug but was able to secure credit from Seepaul for the purchase of a „ten ball‟ of cocaine. Later that night, around 1am, the appellant returned and purchased two 25 rocks of cocaine from Seepaul and paid for it with a hundred dollar bill. 5 At about 4am on the morning of December 14, the appellant went to the home of Indar Baswan on Manahambre Road to purchase two boxes of matches and paid with a twenty-dollar bill. On enquiry from Indar as to where he got the money, he said that he had gotten it from fishing. He appeared to be shaky and a bit frightened at the time. Later that morning he attempted to sell some jewellery to Isaac Baswan but Isaac refused. Isaac observed a slight scratch on his face and also found him to be shaky and frightened. 6 Meanwhile, the police went to the home of the deceased and found her body bound and gagged lying on its back in a semi-nude state. A subsequent post mortem showed that she had suffered several contusions and abrasions but that death was due to suffocation. The body showed contusions and bleeding in the vagina and it was evident that sexual intercourse had taken place. 7 On December 19, 2004 the appellant was arrested and after being cautioned he stated, “I hold down the lady and take she money. I didn’t mean to kill she”. He later gave a statement to the police in which he admitted that he had smoked cocaine on December 13, and was looking for money to purchase some more. He broke into the house of the


deceased and when she awoke he scrambled her, tied her up, pushed a piece of cloth into her mouth and tied it up. He admitted in the statement that he had brushed the deceased and when asked what he meant by that he said that it meant that he had had sexual intercourse with her. He then stole $485.00 which he found under her mattress. 8 At his trial the State accepted a plea of guilty to manslaughter and the facts were presented to the Court. Before dealing with the main issue in this appeal, however, it is convenient to state that the appellant had several previous convictions for offences ranging from larceny to robbery with aggravation between 1990 and 1996. He had been released from prison in August 1999 but on January 6, 2001, while in custody for this offence, he was convicted of a tenth offence for house breaking and larceny and sentenced to ten years with hard labour. He was actually serving this sentence when the trial judge imposed the fifteen years sentence on him and ordered it to run after the completion of the ten-year sentence. 9 The gist of the main ground of appeal, although described differently, was that the trial judge had failed to follow the correct procedure for determining the proper factual basis for sentence. It is an accepted practice where a plea of guilty has been entered that the prosecution or the defence may call evidence to clarify an issue of fact which has not been resolved by the plea but which is relevant to the determination of sentence. The judge, in those circumstances, resolves the issue after hearing the evidence. 10 In the instant appeal, counsel contended that the issue of whether or not the appellant had had sexual intercourse with the deceased was an unresolved fact that affected sentence but that the trial judge had accepted it as a fact when she imposed sentence. He contended that she should have held a Newton hearing before doing so. We rejected the submission because the record of appeal clearly indicated that counsel had been invited by the trial judge to have a Newton hearing but he declined the invitation. 11 The record shows that counsel who represented the appellant at the trial had indicated to the trial judge that the written statement given to the police by the appellant was given voluntarily and was true except that part where he had indicated that he had brushed the deceased. The trial Judge recognized this as an unresolved question of fact and, since in her view it could amount to an aggravating factor to be taken into account in passing sentence, she invited counsel to conduct a Newton hearing to resolve the issue. 12 Counsel did not think it was necessary. Counsel for the State then submitted to the trial Judge that the Certificate of Analysis tendered in evidence which showed that human spermatozoa was found on the vaginal swabs coupled with the appellant‟s explanation for what he meant when he said that he had brushed the woman were conclusive of the issue. It was at this stage that counsel for the appellant requested a break to confer with the appellant. 13 When the hearing resumed, counsel indicated to the trial Judge that his instructions were that the appellant was under the influence of drugs and alcohol at the time of the incident and accordingly was not in a position to deny that that part of the


incident took place. It was on the basis of these instructions that counsel declined to accept the invitation to have a Newton hearing and it cannot now be contended that the trial Judge failed to follow the proper procedure. Counsel had effectively put an end to the issue. Put another way, had such a hearing been held it was the appellant‟s stated position that he would have been hard pressed to deny that he had in fact had sexual intercourse with the deceased. In those circumstances the issue would have been determined against him. 14 In Lester (1976) 63 Cr. App. R. 144 (at 146) the appellant had pleaded guilty to several charges under the Trade Descriptions Act 1968 which involved the alteration of odometers of several vehicles. There was strict liability under the Act and no question of fraud arose. The trial judge, however, in passing sentence drew the inference that the appellant had known of the falsification of the odometers, which amounted to „serious fraud’. On appeal, the Court held that if the trial judge was minded to draw such an inference adverse to the appellant, then the appropriate course for him to have taken would have been: “to indicate to counsel……what was provisionally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence about this matter, as to which of course he would have been open to cross-examination by the Crown.” 15 In the instant appeal it was counsel who declined to accept the invitation to have a Newton hearing after consultation with his client. Accordingly, there was no unresolved issue of fact which required a Newton hearing and for this reason we rejected this ground of appeal. We would add however, that where a trial judge indicates to counsel what inferences he intends to draw and invites him to consider a Newton hearing if he does not agree, then counsel for the accused is under a duty to be unequivocal in whatever stand he takes. He cannot be allowed to play fast and loose. If the issue requires resolution he must say so rather than hide behind ambiguous language that may leave the Court with the impression that his client has conceded the issue. 16 The second ground of appeal was that the trial Judge sentenced the appellant on an incorrect factual basis. Counsel contended that the trial judge, by her remarks, (i.e. “you have moved to rape and murder” and, later “by the State accepting your plea it is the court’s view that you have already received a substantial benefit”) sentenced the appellant on the basis that he had raped the deceased. This was obviously not so and is to take the remarks out of context. The two remarks are quite separate. Firstly, the trial Judge had indicated very early to counsel that the fact that the appellant had had sexual intercourse with the deceased was an aggravating factor to be taken into account when passing sentence on him. It was clear to all that he had not been charged with rape, which the act clearly was, but the Judge was entitled to take it into account in the same way she was entitled to take his previous convictions into account. And it was in this context she said that the appellant had moved from housebreaking, larceny, robbery, to rape and murder. The word rape was used when recounting the life of crime pursued by the


appellant to support her view that he had become a habitual criminal. As she said, there was „absolutely nothing to indicate that you want to give up this life of crime’. 17 The second statement referred to by counsel was used after the Judge described the lack of appreciation of the heinousness of the offence of taking a human life. The trial Judge obviously took the view that the appellant could equally have been found guilty of murder had the State not accepted his plea. The acceptance of the plea therefore was indeed a substantial benefit, given the punishment for murder. We do not accept therefore that her remarks, whether they are justified or not, could lead to the conclusion that she had sentenced the appellant on the basis that he had raped the deceased. For these reasons we rejected this ground of appeal. 18 The final ground of appeal was that the sentence imposed was too severe. Manslaughter carries with it a maximum term of life imprisonment or for any term of years. Counsel relied on a statement made by this Court in Horace Stephen v The State (Cr.App.#15 of 1999) where a view was expressed that a life sentence generally amounted to 15 years. That view appears to have been overtaken by subsequent events or at least is no longer a viable proposition today, more so when an accused person, with so many previous convictions, some involving violence, commits such a serious offence against a helpless old woman. Today in this country, murder is an every day occurrence; life is no longer considered sacred and innocent lives are snuffed out with little or no remorse, as the facts in this appeal so clearly demonstrate. In fact, recently the Court of Appeal commented on the issue of consecutive sentences in Kellon John v The State (Cr.App.#18 of 2004). It stated, inter alia, that in cases where violence is used Courts should be invited to depart from the principle of concurrent sentences and impose consecutive sentences. 19 The appellant was indeed fortunate that his guilty plea to the lesser offence of manslaughter was accepted. The plea in mitigation of sentence that he was not master of his mind at the material time because of the use of drugs appears to have overlooked the fact that they were self-induced. We were of the view that the sentence was not too severe, as contended, given the extent of the violence used and the several previous convictions of the appellant. We therefore rejected this ground of appeal. 20 For the reasons given we dismissed the appeal and affirmed the sentence.

R. Hamel-Smith Justice of Appeal L. Jones Justice of Appeal

S. John Justice of Appeal