COURT CLASH
DPP, judge at odds after case withdrawn before sentence that would ‘shock public’s conscience’
THERE IS a legal firestorm brewing over the director of public prosecutions’ (DPP) withdrawal of a case last month from a judge who was about to sentence a man who had pleaded guilty to rape and grievous sexual assault.
DPP Paula Llewellyn has been chastised by the judge and criticised by several members of the legal profession for her action. They have emphasised that the DPP had the right to appeal rather than to stop the proceedings and start afresh before another judge.
It was reported that the judge, who was visibly upset, remarked that the DPP had also stopped a murder case sometime ago in which the judge was to preside.
But in response, Llewellyn said what she did last month in entering a nolle prosequi was done in the interest of justice because a non-custodial sentence that was being indicated was not the appropriate sentence given the gravity of the allegations.
“It cannot be that the pendulum of justice must only swing in one direction for the accused, it must also swing for the victim,” Llewellyn stressed. She said the process in arriving at the sentence was irregular.
Attorney-at-law George Clue, president of the Southern Bar Association, when asked for a comment on the issue, said last week that he heard about the matter from some attorneys who were present in court on January 26.
“In my view it is an abuse of discretion to use nolle prosequi in that manner because, if the DPP is dissatisfied with the sentence imposed by the judge, she can appeal it,” Clue asserted. He said the case would now have to go before another judge.
“If a sentence is too lenient or a judge imposes a sentence that he or she is not empowered in law to do, then the DPP can appeal,” Clue added.
On December 18 last year, when the social enquiry report was ready, the judge again indicated the sentence that was going to be given in accordance with the sentence indication and it was reported that the judge
then remarked that it was open to the Crown to appeal if it was aggrieved by the sentence.
Senior attorney-at-law Leonard Green, who is president of the Advocates‘ Association of Jamaica, explained that the court’s power to give an advanced sentencing indication comes by way of Practice Direction Number 2 of 2016.
“This is an essential tool that allows the accused an opportunity to know in advance what would be the likely sentence that he or she would face if a plea of guilty was entered.
“It has tremendous value and remains a
helpful procedure that the judges use from time to time to reduce the backlog of cases before the court. It is vital that the accused persons and lawyers have confidence in this procedure so that if they decide to use it, that there is a real likelihood that they will receive some advantage, for not wasting the court’s time if they know that they are guilty for the offence for which they have been charged.
‘If the Office of the DPP adopts the view that they are entitled periodically to have the process aborted by entering a nolle prosequi and start the case afresh, then there is the real likelihood that persons charged may be less inclined to use this process as a means of disposing of their matter rather than going the route of a full scale trial,” Green said.
“So, it is not right to say that in all cases you are going to wait until appeal because the damage would have been done. The allegations revealed an awful sexual assault which was perpetrated on the victim,” Llewellyn however said.
She pointed out that the information from Senior Deputy Director of Public Prosecutions Jeremy Taylor, KC, who first had conduct of the matter, was that when the matter was first discussed in October last year in respect of sentence indication, Taylor said he could not agree to a noncustodial sentence given the gravity of the allegations.
“We believe that such a sentence would shock the public’s conscience,” she added.
IN AGREEMENT
The judge apparently did not seem to be in disagreement with what defence counsel was saying, Llewellyn said.
“One understands the urgency which all stakeholders share to dispose of matters, however, because we are dealing with real people who have been assaulted or victimised or killed, prosecutors have to explain to the victims or their relatives how come the judge is going outside of the sentencing range,” she disclosed.
Taylor, in outlining what took place said the trial was going to start so the complainant was at court. He said he and another colleague had conduct of the prosecution.
“However, before the accused man who was charged with rape and grievous sexual assault was pleaded, in October last year, his counsel asked if he could approach the Bench. He went there and what I would describe as an informal sentence indication took place. I said informal because it did not conform to the practice direction and did not conform to the strictures laid down in the case of the King and Adrian Brown which should have been done in chambers with a writer (court reporter) and normally to get a social enquiry report and that was not done,” Taylor said.
“This was done in the Bar of the court. When the judge said in the Bar of the court ‘I am minded to give him a noncustodial sentence’, the Crown said no because on the facts of this case the offences were egregious and we could never agree to a non-custodial sentence.
“‘This is a case where the accused lured the girl by way of social media to where he lived and, without her consent, he held her down and raped her and held her down so that his friend could rape her too.
“When we went back to counsel’s bench, defence counsel asked for the accused to be pleaded and he pleaded guilty and a date was set for sentencing. On the date for sentencing I was present and I put forward sentencing submissions as to why in this case a non-custodial sentence must not be given. I even cited authorities to show that notwithstanding the age of the accused at the time of the offence, a non-custodial sentence was not appropriate,” Taylor outlined.
The matter was set for another date.
On December 18, 2023, when the case came back before the court, Taylor said he was not there but, from reports from the prosecutors who were in court, the social enquiry report was ready and the judge indicated to the prosecution and defence counsel that she was going ahead with the original sentence, so when it came to his attention, he approached the DPP.
“We even consulted with the complainant before we consulted with the DPP for the nolle prosequi and the complainant was shocked that the judge was minded to give a non-custodial sentence. The nolle prosequi was entered on January 26 for the matter to commence before another judge,” Taylor said.
It was reported that the accused at the time of the incident was 16 years old and the complainant was 17 years old.
INSUFFICIENCY OF JURORS
Llewellyn explained that the other case the judge referred to was the murder case of three policemen in which the judge became upset and was “pressuring” the prosecutors not to use their challenges in the empanelling of a jury because there was insufficiency of jurors. The judge did not give the same instructions to the defence, she said.
“When prosecutors contacted me I told them they were on the ground and they were to exercise their independent judgment on behalf of the prosecution,” she said.
She commented further that it was the perception of the prosecutors that to meet the justice of the situation and to give the prosecution the best chance in the case, they had to challenge the jurors.
A jury was not empanelled that day and the case was set for another date. The DPP entered a nolle prosequi and directed that the case be set for trial before another judge at the next session of the Circuit Court.
“As officers of the court, we always pay great respect to the judiciary and the fairness requirement to due process for the accused. However, we are obliged to maintain an independent professional judgment from all stakeholders in the administration of justice while we balance all factors with the public interest,” Llewellyn said.
A retired judge said, in relation to sentence indication, both parties must agree to the sentence. The eminent jurist advised that“once the prosecution objects to the sentence indicated by the judge, then the matter must go to trial and in this particular case before another judge”.