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Judges alone have power to jail

By Andre Bagoo Wednesday, December 18 2013

click on pic to zoom in
Convicted killer: Alexander Nicholas...
Convicted killer: Alexander Nicholas...

THE COURT of Appeal yesterday ruled that judges, and not the Office of the Director of Public Prosecutions, hold the ultimate discretion over what sentence to impose in cases of persons who plead guilty of murder.

Though judges must follow precedent and pay regard to certain aspects of the facts of each case – such as the potential for rehabilitation – the Court of Appeal made clear that judges are not bound to accept the sentence recommended by prosecutors in cases where persons plead guilty to murder.

The case involved three appellants who pleaded guilty to murder at an early stage of trial yet were sentenced to life imprisonment.

At the hearing of the appeal, lawyers for the State argued that the judge is bound to accept the decision of the prosecution if it opts not to seek the death penalty. However, a panel comprising Justices of Appeal Paula Mae Weekes, Alice Yorke-Soo Hon and Rajendra Narine found otherwise.

“We are reluctant to fetter the discretion of the trial judge by the exercise of an extra-judicial discretion by the Director of Public Prosecutions,” the court ruled in its 25-page judgment. “The trial judge is therefore not bound to be or act in agreement with the decision of the prosecution. Of course, a trial judge must be exceedingly slow, where the prosecution has declined to seek the death penalty in a case of murder, to contemplate it among the range of sentences for consideration.”

Lawyers acting on behalf of Alexander Don Juan Nicholas, Gregory Tan, and Oren Lewis, sought reduced sentences. A trial judge had last year imposed life sentences. However, the Court of Appeal did allow the men’s appeals arguing that such sentences applied only to the gravest of cases. The Court of Appeal took the view that this case was not such.

The case saw the murder of taxi driver Jerry David Boodoo, who was last seen alive on August 27, 2002. The facts involved a plot to rob him and steal his car for car parts. That plot turned into a murder plot. The three men participated in the events which saw Boodoo strangled with his own belt, his dead body placed in the trunk of his car and then dumped in a river. Before being murdered, he pleaded with his assailants to spare his life for the sake of his daughter. The accused also later attempted in various ways to cover for each other.

The trial judge, Justice Andre Mon Desir, last year considered the prevalence of the offence; as well as the motivations of the actors, among other things. He also stated he paid regard to probation officers’ reports which indicated the assailants were capable of rehabilitation.

The Court of Appeal, however, found that instead of life imprisonment, 30 years imprisonment was adequate. The appellants had already spent ten years and two months in custody awaiting trial meaning they have 19 years and ten months with hard labour left to serve. Attorneys for the appellants included: Keith Scotland, Asha Watkins, Jagdeo Singh, and Daniel Khan. The State was represented by a team including Dana Seetahal SC.

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