The Court of Appeal has been asked to consider a landmark case over its ability to interfere with a Maximum Sentence Indication (MSI) given by a judge and accepted by an accused person, in circumstances where the indication is later found to be wrongly calculated.
Appellate Judges Mark Mohammed, Maria Wilson and Gillian Lucky yesterday reserved their decision on the issue, which arose during an appeal brought by a man who agreed to plead guilty to five charges arising out of the kidnapping, rape and robbery of a woman in 2008.
The man, Orlando Alexis, agreed to plead guilty to rape, buggery, grievous sexual assault, kidnapping and robbery in April 2019 after High Court Judge Carla Brown-Antoine performed an MSI at his request.
According to the evidence in the case, the attack occurred on May 1, 2008.
The 29-year-old victim left her boyfriend’s home in St James and decided to board what she believed was a taxi, along the Western Main Road in St James.
As soon as she got in, the driver and the backseat passenger threatened the victim and took $300 cash and two cellphones valued at $2,800 from her handbag.
Armed with a knife, the backseat passenger sexually assaulted the victim as they drove towards east Trinidad.
After repeated threats, the victim gave the two men the PINs for her ATM cards. They reportedly stopped and withdrew money using them.
They then drove to a desolate area of Arouca where the driver allegedly sexually assaulted the woman repeatedly, before he and the accomplice left in the car.
The victim made her way to a community which bounds the area and contacted police with the assistance of a resident.
Alexis was charged after the victim pointed him out as the driver in an identification parade.
After applying a one third discount on the sentences given during the MSI, considering mitigating and aggravating factors and deducting the time he spent on remand before he accessed bail, Brown-Antoine decided on a 16 year and eight- month sentence for rape, 13 years for buggery, 12 years for grievous sexual assault, 13 years for kidnapping and eight for robbery.
The sentences were ordered to run concurrently, meaning that he would be released after serving the longest sentence.
In the appeal, both the Office of the Director of Public Prosecutions (DPP) and Alexis’ defence attorney agreed that Brown-Antoine made errors in the MSI.
Alexis’ attorney Raphael Morgan, of the Public Defenders’ Department, claimed that the initial sentences should have been slightly lower as Justice Brown-Antoine wrongly considered that he had pending charges in relation to other incidents.
Assistant DPP Nigel Pilgrim claimed that the starting point should have been slightly higher as the judge failed to properly consider the aggravating factors in relation to the depraved and prolonged attack on the woman.
Both attorneys referred to Rule 13.1 of the practice directions issued in relation to MSIs, which precludes appeals over the indication given but not over the final sentences that are handed down, and Section 44(3) of the Supreme Court of Judicature Act, which gives the Court of Appeal the jurisdiction quash sentences and apply more appropriate ones.
In his submissions, Pilgrim suggested that while the Appeal Court is entitled to adjust the sentence to correct the errors, it should not do so in Alexis’ case.
“The respondent submits that though the trial judge erred in taking into account the pending charges in her derivation of the starting point this error in principle is balanced off by other errors in principle by the trial judge when she failed to consider other relevant aggravating factors and in those circumstance the trial judge’s sentence either ought not to be disturbed or the sentence imposed increased,” Pilgrim said.
Morgan invited the appeal panel to follow a legal precedent set in New Zealand where its Court of Appeal quashes the sentence and guilty plea and orders the MSI redone in circumstances where errors are discovered.
“The approach by the New Zealand Court places high regard on the fact that where a defendant has pleaded guilty, the defendant’s relief at receiving a particular sentence is measurable by his or his willingness to plead guilty. The impact of a sentence increase may therefore be severe,” Morgan said in his submissions.
However, Morgan and Pilgrim did agree that the Court of Appeal did not have the power to redo the MSI itself as they noted that such is within the domain of the High Court.
After hearing the submissions yesterday, the appeal panel indicated that it would take approximately six months to return with a written judgement due to the important issues raised in the case.
Alexis was also represented by Ravindra Rajah.
