Rolston George v [1] The Superintendent of Prisons

• Jurisdiction: Dominica
• Judge: Stephenson J.
• Judgment Date: 15 May 2020
• Judgment citation (vLex): [2020] ECSC J0515-4
• Docket Number: CASE NO. DOMHCV 2019/0188
• Date: 15 May 2020
• Court: High Court (Dominica)

[2020] ECSC J0515-4

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CASE NO. DOMHCV 2019/0188

Between:-

Rolston George

Applicant

and

[1] The Superintendent of Prisons

[2] The Attorney General

Respondents

Appearances:

Miss Dawn Yearwood Stewart for the Applicant

Mrs. Jo-Anne Xavier Cuffy, State Attorney for the Respondents

RE-ISSUED JUDGMENT

This judgment has been corrected pursuant to Part 42:10 of CPR as there was an accidental omission made regarding the contents of the claimant's affidavit which omission has been corrected. This correction does not affect the Order of the court emanating from the judgment delivered. There were some typographical errors which were also corrected to the judgment as issued .

Stephenson J.

1 “The discretionary remedies of certiorari and prohibition were employed primarily for the control of inferior Courts, tribunals and administrative or other public authorities. It is a form of judicial review whereby the acts of theses Courts, tribunals or public authorities could be quashed if it was found that they had acted outside of their mandate or unfairly even within their mandate or jurisdiction” 1

2 By a fixed date claim form filed on 14 ^th day of October 2019 the claimant sought and order Certiorari to quash a decision of the Superintendent of Prisons to continue his confinement at the State Prison at Stock Farm for more than 6 months from the date of his arrest and incarceration on multiple warrants of committal all issued on different dates but executed on the same day.

3 Being aggrieved by the decision of the Superintendent of Prison the claimant applied for leave to issue Judicial Review of the Superintendent's decision. The claimant also sought a writ of Habeas Corpus to challenge the validity of his continued incarceration.

4 After the leave was duly granted the claimant found himself incarcerated as a result of different proceedings and was due to be released on the 28 ^th January 2020 and was duly released shortly thereafter based on the consent order of this court for him to be released pending the ruling on his application for certiorari.

5 This is a case where a determination needs to be made on whether the sentences which the applicant has to serve based on warrants for civil debts should run concurrently or consecutively to one another. If they are to run concurrently, the sentences will overlap and be served at the same time. If they are to run consecutively the sentences, on the other hand, require one to finish before the other begins. Counsel for the claimant has urged upon this court that the applicant

should serve a single term that is, the terms of sentence should run concurrently and counsel for the respondent submits that the terms should run consecutively

6 Generally, it's up to the court to determine whether or not the sentences will be concurrent or consecutive.

The Undisputed Facts:

7 The Claimant was arrested and presented to the State Prisons and is in fact serving sentences passed as a result of failure to pay compensation orders consequent to criminal conviction and for default of multiple maintenance orders issued pursuant to section 9 of the Maintenance Act 2.

8 The warrants were issued on different dates and executed on the same date. What is clear to the court is that the applicant was out of State and upon his return to Dominica he was arrested at the airport placed into custody and handed over to the State Prison on the basis of the 10 outstanding maintenance warrants and 2 outstanding warrants to pay compensation upon criminal conviction of theft neither of which he obeyed.

9 It was submitted by Counsel Dawn Yearwood Stewart that what is being challenged is the claimant's continued incarceration consecutively based on the outstanding warrants that were issued on different days but executed on the same day as counsel is of the view that the claimant's continued incarceration is unlawful. The issue is whether or not the decision by the Superintendent of Prisons was right when he determined that the claimant should serve consecutive terms of imprisonment based on the many warrants issued in default of him paying maintenance as ordered by the Court. It is the submission of Counsel on behalf of the claimant that what is being questioned is the ambiguity as to the length of the term that the claimant is expected to serve.

10 It was submitted on behalf of the Claimant that these sentences should be served concurrently and not consecutively for the following reasons:

• a. That the Superintendent of Prisons could only take guidance from the warrants as issued by the Magistrate and that the warrants in issue did not state that the sentences should be served consecutively;

• b. That since the terms of imprisonment are in default of payment of a civil debt they should not run consecutively, that the terms of imprisonment on the warrants is to enforce payment and not to punish the claimant for crimes committed.

• c. That the six month terms imposed is in default of compensation orders arising out of a criminal matter which falls under the “Summary Jurisdiction (Criminal) of the Magistrate's Code of Procedure Act 3 and in the circumstances of this case the Superintendent of Prisons should not look beyond the warrant to determine the terms of the warrants.

11 Learned Counsel Yearwood Stewart has submitted to this court that the Superintendent of Prisons cannot decide that the terms of imprisonment based warrants presented in the instant case are to run consecutively. That the time to be served by the applicant is to run concurrently unless otherwise stated on the face of the warrant. Counsel further submitted that the six weeks term of imprisonment began to run when the applicant was received by the prison on every single warrant. Learned Counsel relied on the Desmond Carroll v The Governor of Mount Joy Prisons 4 in support of her submissions.

12 It was further submitted that it is not for the Superintendent of Prisons to judicially determine the length of the term of imprisonment as to do so would usurp the functions of the magistrate whose remit it is to determine the terms of

incarceration. The superintendent's role is limited to looking at the date the claimant came into his custody and to calculate the sentenced from that date

13 Learned counsel on behalf of the claimant made reference to and relied on the Canadian Case of Rex v Stevens Exparte Richard 5 in support of her contention that the terms of imprisonment based on the warrants which were executed on the same day should run concurrently. Having reviewed this case in its entirety this case really in my respectful view does not apply to the case at bar as the court was dealing with an entirely different factual circumstance, in that the applicant in that case was found guilty of multiple offences based on the same evidence at a single sitting of the court. The magistrates in that case found the applicant guilty of the multiple offences and passed sentence on each of the offences as charged and in default of each fine the applicant was ordered to be imprisoned for a term of three months for each offence. Having failed to pay the fines on each of the convictions, committals were issued for each of the convictions and the applicant was incarcerated on each of the committals in default of paying the fines imposed.

14 It is noted that the terms of imprisonment which the claimant in the case at bar is serving is not an “original punishment, but a term of imprisonment as a means of enforcing payment of compensation order and in default of paying maintenance as ordered by the court. It is an imposition of a term of confinement subsidiary to the enforcement of payments of fines as ordered by the court.

15 Learned Counsel Yearwood Stewart submitted on behalf of her client that the life of all of the warrants ran together in the six months window which is the longest term of imprisonment under one of the warrants and that in the circumstances of the case the claimant should be discharged.

16 On behalf of the respondents it was submitted that based on the facts adduced in the case that where the warrants were duly executed on the same day in the

absence of an indication on the warrants whether the terms of imprisonment should be consecutive or concurrent, that there is a presumption of concurrency which should be applied

17 Learned counsel Xavier Cuffy on behalf of the respondents relied on the case of Jake Freeman v The Governor of Wheatfield Place of Detention 6. In that case Mahon J stated 7 “ … in the absence of such direction (whether the sentence should run concurrently or consecutively) 8 a presumption of concurrency applies”. To support the court's finding in this regard the learned judge cited and relied on the decision in Blackall v Mangar (1952) 87 ITR and Carroll v Governor of Mountjoy Prison [2005] 3 IR 292.

Considerations by Court:

Warrants

18 A warrant is a command issued by the court to the executive branch of the state to arrest and individual or person and to bring him or her before the court or to lodge that person into lawful custody of the prison authorities.

19 The claimant was arrested based on the issuance of warrants signed by the Magistrate to serve time in default of a compensation order (in two parts) and in default of orders to pay maintenance for his children. Warrants serve a twofold purpose:

• a. When a person who is sentenced is still at liberty this enables the court through the police to apprehend and detain the person;

• b. To inform the prison authorities of the identity of the prisoner, the offence for which he is convicted and the duration of his sentence.

Imprisonment for civil debts:

20 The civil justice system provides the process by which individuals can enforce their judgments and obtain payment of monies that are owed.

21 It has been...