DPP v Elvis Richardson [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ramdhani J (Ag.)
• Judgment Date: 06 December 2013
• Judgment citation (vLex): [2013] ECSC J1206-1
• Date: 06 December 2013
• Court: High Court (Saint Kitts and Nevis)
• Docket Number: CLAIM NO.: SKBHCR 2013/0030

[2013] ECSC J1206-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

A.D. 2013

CLAIM NO.: SKBHCR 2013/0030

Between:

The Director of Public Prosecutions

and

Elvis Richardson

Appearances:

Mr. O'Neil Simpson for the Crown

Ms. Marsha Henderson for the Defendant

Sentence — Causing Death by Dangerous Driving — Degree of Fault should determine the appropriate sentence — Assessment of Aggravating and Mitigating Factors — Other Offences Allegedly Committed at the same time not to be considered unless proven by a Plea or Conviction — Whether Culpability of deceased a Consideration as going to Mitigation.

Sentence — Suspended Sentence — The Alternative Sentencing Act, Chapter — Only applicable when Immediate Custodial Sentence Appropriate — Factors to be considered — Personal Characteristics Relevant — Whether immediate custodial sentence will have the effect of derailing the future prospects of the Defendant.

Plea of Guilty — Facts to be presented by Prosecution — Depositions Evidence to be used unless irrelevant to sentencing — Prosecution to notify defendant of the facts which is to be relied on — Prosecution may accept defendant's version of facts in suitable case — Where there is no agreed version of facts Prosecution to invite court to conduct a Newton Hearing.

On Friday the 11 ^th November 2011, Elvis Richardson, the defendant speeding in an uninsured vehicle just after dark along the Newtown Bay Road in Basseterre, fatally struck an 80 year-old man crossing the road. He volunteered a blood test and it was discovered that he had been drinking but it could not be proven that he had exceeded the legal limit. From the evidence, the deceased appeared to have relied on a third party's direction to cross the road at that time. The defendant was charged with causing death by dangerous driving with an alternative count of dangerous driving. At the first reasonable opportunity, he pleaded guilty to the first charge.

Held:

• 1. The appropriate sentence in a matter such as this must be arrived at having regard to the aims of sentencing, and the aggravating and mitigating factors to determine the degree of fault to be attributed to the defendant. In this case, the act of dangerous driving consisted of the act of speeding at a time and place when it was dangerous to do so, and being unable to stop in time to avoid hitting the deceased crossing the road. It was important in this process to have regard to the culpability of the deceased in crossing at a time when it was unsafe to do so. In this case, the appropriate sentence is a custodial sentence of nine months imprisonment. Additionally, the defendant driver's licence will be revoked for a period of eighteen months at which time if he intends to drive again, he will have to take an extended driving test. He is fined the sum of EC$15,000.00 to be paid within six months. He is also ordered to carry out community service as a Traffic Crossing Warden in Nevis for 150 hours, to be arranged through the Royal St. Christopher and Nevis Police Force Traffic Department.

Applied: R v Cooksley et al [2003] Crim. 996; Principles found at Blackstone Criminal Practice and Procedure 2008 edn. paragraph 32–9 at page 2809;Thelbert Edwards v R Criminal Appeal No. 3 of 2006(St. Lucia) (unreported)

Considered: R v Jesse CharlesCriminal Case No. 8 of 2003 St. Lucia (unreported); Markenzee S. Hunte Criminal Case No. 18 of 2009 St. Lucia (unreported);R v Wendell VarrickCriminal Case No. 27 of 2011 British Virgin Islands (unreported);Desmond Baptiste v R CriminalAppeal No. 8 of 2003 St. Vincent and the Grenadines.

2. A custodial sentence may be suspended in an appropriate case where an immediate custodial sentence might have the effect of derailing the stability and future prospects of a man of good character in a case with strong mitigating factors. In this case, this custodial sentence will be suspended, this defendant being a stable man, and one of the few certified divers on the island, with a steady job in his field, and with future prospects. The custodial part of the sentence will be suspended for a period of twelve months. Should the defendant commit any further offences in this period, he will be brought back to court for consideration of the possible activation of the suspended sentence.

Applied: Sentence 6 of the Alternative Sentencing Powers Act, Chapter 3:20; R v Bowen (Ashley) 2013 WL 617957 Court of Appeal (Criminal Division)

Considered: R v Daniel (George Geremiah) 2012 WL 5894535Court of Appeal (Criminal Division);R v Brannigan (Kevin) [2013] NICA 39

Per curiam:

A prosecutor should not request that the court impose a custodial sentence in matters such as this. A prosecutor's role at sentencing is limited to presenting to the court all the relevant material, and to ensuring that the court is aware of the maximum or minimum ranges of sentence. It is up to the court to decide whether a custodial sentence is suitable; this is a judicial matter.

It is important for the court, in approaching the determination of an appropriate sentence, to understand the effect that the offence has on the victim or his or her immediate family in cases where the victim is deceased. In future, the prosecution should normally present admissible evidence, possibly in the form of 'victim impact statement(s)' showing the impact the offence has on either the victim or his or her family. In an appropriate case it might also be important to consider the impact the offence has on the community. The opinions of the victim or the victim's close relatives as to the appropriate sentence are not relevant.

1 Ramdhani J (Ag.)— The defendant, Elvis Richardson, was charged on an indictment containing two counts under the Road Traffic Act of St. Kitts and Nevis Cap. 15.06, namely causing death by dangerous driving contrary to section 50(1) of the Act, and in the alternative, a charge of dangerous driving. When he was arraigned on the 4 ^th September 2013, he pleaded not guilty to both counts, but on the 8 ^th September 2013 when the matter came before the court for the second time, he changed his plea to the first count and pleaded guilty. The other charge was then subsumed in the first. He cannot be tried on that charge again.

2 The facts presented by the prosecution show that on Friday the 11 ^th November 2011, the defendant was driving an uninsured vehicle along the Newtown Bay Road in Basseterre during the 'late hours of the night'. He was speeding above the speed limit and he struck one Mr. Joseph Allen, an 80 year-old man crossing the street at that time, who fell onto the bonnet of the car and was dragged for about 100 feet before being tossed onto the side of the road.

3 When the police arrived at the scene, they took a blood sample from the defendant and this was later tested showing that there was some alcohol content in his blood. There was no evidence that it exceeded the legal limit.

4 The deceased died at the scene of the accident. The cause of death was later recorded as hypovolemic shock secondary to a left massive hemothorax (blood in the chest cavity) and hemoperituem (blood in the abdominal cavity) secondary to traffic accident. The spleen was ruptured and there was injury to the kidneys. He literally died from massive blood loss that was caused by the multiple broken ribs.

5 The Crown has asked the court to impose a custodial sentence. This is an unusual stance. Apart from capital offences, the prosecution's role is limited to presenting to the court all the relevant material, and to ensuring that the court is aware of the maximum or minimum ranges of sentence. It is up the court to decide whether a custodial sentence is suitable; this is a judicial matter.

6 The defendant through his attorney has requested that having regard to the mitigating circumstances and precedent, a non-custodial sentence should be imposed or in the alternative if one is to be imposed, the court exercises its discretion under the Alternative Sentencing Guidelines and instead impose a suspended sentence.

Preliminary Issues on Factual Background

7 There were two matters related to the factual background of the case that were raised by the court during the sentencing hearing, all of which related to matters which were contained in the depositions, and whether these matters had any bearing on the issue of the appropriate sentence. These were:

• (i) The evidence that related to the alcohol content found in the blood did not state clearly that the defendant had in excess of the legally specified limit in his blood.

• (ii) There was evidence in the deposition that indicated that the deceased appeared to have been called across the road by another person who was talking on a cell phone at the time. It appeared to open the possibility that the deceased may have been contributory negligent at the time.

8 The defence raised a third factual matter, namely that there was evidence on the deposition that contradicted the prosecution's statement that it was late at night, when in fact it was only after 7:00 p.m. in the evening. This is not of any great moment, as the depositions show that it was at 8:00 p.m. that the incident happened. There is no doubt that night had already set. I will leave this here.

9 The prosecution's response on the first issue was that regardless of whether the alcohol content had passed the prescribed limit, the mere fact that he had been drinking should be considered as an aggravating factor.

10 On the second issue, the prosecution contended it would be inappropriate to have regard to any possible contributory negligence on the part of the deceased as that was a matter for a civil trial and had not part in this criminal process. It flew in the face of the guilty plea, the prosecution contended, and should not be considered as a mitigating factor to reduce sentence.

11 He submitted generally that if the...