GETAWAY DRIVER FEELS HEAT

Court rules 15 years’ imprisonment not excessive or unreasonable in armed robbery offence

THE COURT of Appeal has ruled that, because of the prevalence of gun crimes in Jamaica, 15 years’ imprisonment at hard labour, imposed on the getaway driver in a robbery, was not manifestly excessive or unreasonable.

Appellant 44-year-old Germaine Milford was convicted in 2016 and sentenced to 15 years’ imprisonment each for illegal possession of firearm and robbery with aggravation and five years for illegal possession of ammunition. The sentences were to run concurrently.

He will now serve 14 year’s imprisonment as the court granted him a one-year-reduction in sentence for a breach of his constitutional right because he did not receive the transcript of his trial within a reasonable time. Milford gave verbal notice of appeal in November 2016 but the transcript of his trial was not available until March 19, 2021.

The court ruled in January that application for leave to appeal against the convictions were refused.The sentences will run concurrently from October 26, 2016 when they were imposed.

Milford’s convictions stemmed from a robbery incident on March 15, 2013. On that day a businessman went to a bank in St Andrew and withdrew $650,000 which he placed in a bag. Upon leaving the bank and going towards the car park, he felt a pull on his bag. He turned around and was confronted by a man who pointed a gun at him.The gunman relieved the businessman of the bag and then ran into a motor vehicle in which Milford was the driver.

Police officers in a marked service vehicle gave chase and the vehicle eventually stopped. Milford ran and was chased and held by the police. The motor vehicle was searched and a firearm and the complainant’s bag with the money were found in the glove compartment.

The Crown’s case was premised on the allegation that Milford was the getaway driver and was in a joint enterprise to execute the robbery.

He said in his unsworn statement at his trial that he was the getaway driver under duress. He said he had parked his car and was waiting for his girlfriend when the gunman entered. He was forced to drive away with the gunman and in fear for his life he obeyed.

The gunman, who was held by the police as he exited the motor vehicle, pleaded guilty to all the offences.The gunman was called as witness for the defence and he supported Milford’s assertions that he acted under duress.

In handing down its written reasons last month, the court comprising Justice Paulette Williams, Justice Evan Brown and Justice Georgiana Fraser took note of the aggravating features that the judge had identified in passing sentence – such as the serious nature of the offence, the use of weapon to facilitate the robbery and the prevalence of the offence in the society.

The court, in referring to other aggravating factors, pointed out that there was the use of violence, the offence was premeditated, the appellant was operating in a group, the maturity of the appellant and motivation of greed.

The appellant’s mother had stated in the social enquiry report that he was not a person in need, was raised in a supportive and loving environment and described as industrious.

“Owing to the significant number of aggravating factors identified in the factual circumstances of this case, we deemed it appropriate to move the

calculation upwards by the addition of 10 years. This would result in new figures of 22 years in respect of both offences, ”the court ruled.

The court agreed with the trial judge that the appellant’s previous good character and the positive social enquiry report and his capacity to reform were mitigating factors. The court said it therefore reduced its evaluated sentences for both offences to 18 years. After affording the appellant, the two years and four months and 14 days spent on pretrial remand, the court said its final calculation was a sentence of 15 years, seven months and 14 days at hard labour for the offences.

“For the reasons we have sought to explain, there was no basis on which it could have been successfully argued that the sentences of 15 years’ imprisonment each were manifestly excessive or unreasonable,” the court ruled.

Milford, who was represented by attorneys-at-law Keith Bishop and Janoi Pinnock, instructed by Bishop and Partners, had also argued that it was unclear how the trial judge arrived “at a starting of 20 years for illegal possession of firearm and a starting point of 15 years for the offence of robbery with aggravation”.

Senior Deputy Director of Public Prosecutions Kathy-Ann Pyke and Crown Counsel Cindy-Kay Graham conceded that the judge had erred in respect to the methodology utilised, but had given a reason for selecting a starting point of 20 years.

“We therefore agreed with counsel that it is unclear how the learned judge arrived at the 20 years and would add that if indeed 20 years was supposed to represent her selected starting point this should have been clearly indicated as such,” the court said.