The State v Garvin George [ECSC]
| Jurisdiction | Dominica |
| Judge | Stephenson — Brooks J |
| Judgment Date | 27 February 2012 |
| Judgment citation (vLex) | [2012] ECSC J0227-1 |
| Date | 27 February 2012 |
| Court | High Court (Dominica) |
| Docket Number | DOMHCR 23 OF 2011 |
IN THE EASTERN CARIBBEAN SUPREME COURT
HIGH COURT OF JUSTICE
(CRIMINAL)
Justice Birnie Stephenson-Brooks
DOMHCR 23 OF 2011
By an indictment laid by the Learned Director of Public Prosecutions on the 16th day of September 2011, the defendant Garvin George was charged with the offence of murder contrary law.
The said indictment alleged that the defendant Garvin George on the 5th day of February 2010, at Calibishie, in the Parish of St Andrew in the Commonwealth of Dominica did murder Junior Joseph. After arraignment he was tried and convicted unanimously by a mixed jury for this offence and he is now before the Court for sentencing.
"Sentencing in murder cases is at the discretion of the Judge, who may impose such sentence as the circumstances of the crime and the aggravating and mitigating facts demand. Judges usually try to be consistent and are entitled to consider similar cases"1
3. The punishment prescribed by The Offences against the Person Act2 for murder is death. Section 2 of the said act states "Any person who is convicted of murder shall suffer the penalty of death".
4. The sentence of death as a mandatory or automatic sentence to be imposed upon conviction of murder has been held to be unconstitutional3 and Judges now have some flexibility in sentencing persons who have been convicted of murder. Judges can now look at the entire circumstances of the case and impose a sentence that is fitting or appropriate in the case and in fact assistance is to be obtained from sentencing guidelines which have been provided and decisions of the courts in similar matters provide guidance in matters such as these.
Sir Dennis Byron Chief Justice, as he then was, in discussing the sentencing procedure had this to say.
"… The sentencing procedure must be modified to include the requirement that before passing sentence on a person convicted of murder, the Court must allow the convicted person to mitigate. The factors that must be taken into account upon a plea of mitigation should include the gravity of the office, the character and record of the offender, the subjective factors which may have influenced the offenders conduct, the design and manner of execution of the offence and the possibility of reform and social re-adaptation of the offender."4
In keeping with the guidelines as set out inEvanson Mitcham et al —v- The Director of Public Prosecutions5, the learned DPP in the case at bar has informed the court that he does not intend to pursue the position that the death penalty is appropriate in this matter.
Saunders JA made this observationinter alia that there are factors which should be borne in mind when considering the question of sentencing in murder cases:
"…murder is a peculiarly a crime that admits of an enormous range both in character and culpability. In other words the circumstances in which murder is committed and the personal background and motive of the offender may vary radically from one accused to another." 6
The facts as accepted by the jury are that on the 5th day of February 2010, at around 7:10 pm there was an altercation between the deceased Junior Joseph and the defendant Garvin George at "Togas Bar" in Calibishie where patrons gathered to lime. It was during the carnival season.
The defendant, Garvin George, was in the bar where he had a confrontation with the deceased Junior Joseph. There was an argument followed by a jacking. The defendant and the deceased were seen wrestling (rolling on the ground) and there was an attempt by Miss Ulander Carbon to stop the fight when she pulled the defendant off of the deceased. Thereafter, both the deceased and the defendant went out onto the road and the deceased "jacked" the defendant then he ran into the yard of one, Miss Helen Africa.
The defendant followed the deceased and the fight continued in Miss Africa's yard. The deceased kicked the defendant who fell against a van parked in that yard. Thereafter, the defendant was seen to be punching the deceased and again attempts were made to separate the deceased and the defendant, after which the deceased ran out of the yard and up the road where he collapsed and was transported to the Marigot Hospital where he was pronounced dead on arrival.
The defendant at the time of the offence was 20 years old and the deceased was 18 years old at the time of his death.
The court ordered pre-sentence report was presented by Mr Leroy Morvan, Probation Officer. This report informed the court of the views of the members of both the families of the defendant and the deceased and also of members of the community, as it regards both the defendant and the deceased. The defendant was also interviewed by Mr Morvan. Mr Morvan was then able to compile and present this court with an assessment of the defendant.
Mr Morvan indicated that the defendant was very remorseful and his relatives and persons who knew him had something good to say about him, even though, it was noted that there were a few negative things that were said about him. The report spoke of the defendant's development which was "characterized as one of little parental support…that the defendant grew up with no father figure in his life and his own mother was unable to effectively care for him leaving him in the care of his maternal grandmother".
Mr Morvan opined that the defendant may, due to this situation could, "well be a victim of circumstances surrounding his development" and questioned how this along with the "negative pointers" that were imparted about him impacted on his action which resulted in him taking someone's life.
Learned counsel Miss Bernadette Lambert upon invitation from this court made written submissions regarding sentencing in the matter. These submissions were further buttressed by an oral plea in mitigation and oral character reference made on behalf of the defendant.
Learned Counsel urged the court to consider that Mr George is a young person in that at the time of the offence he was 20 years old and was convicted at age 22 years and that he had no previous criminal record and that he is a young man of good character as was attested to by the Police officer who gave evidence on behalf of the prosecution and other prosecution witnesses who stated that Garvin was known to be a quiet person.
Learned Counsel also submitted that Garvin co-operated with the Police from the inception. He gave no trouble and on the day following the incident he gave an accused statement. It was further submitted that the accused is not, and has never been, a threat to the society and urged the court that in its considerations as to a sentence to consider that he has already spent some time on remand at the State prison. Counsel beseeched the court that the defendant should be allowed the opportunity to leave prison while still a young man and to take up his place as a productive member of society.
Counsel submitted that the court should give the case at bar special considerations, in that, the case is exceptional and distinct from other cases in the region and urged the court to depart from the norm of imposing a sentence of life imprisonment and to sentence the defendant to a term of imprisonment not exceeding 10 years.
Counsel urged the court to consider the following authorities in making its decision:Peter Duncan —v- The Queen7, Peter Solomon —v- The Queen,8Nardis Maynard —v- The Queen9, Augustin McPierre —v- The Queen10, The Queen —v- Lyndon Lambert11
A pre-sentence report was also submitted to the Court. According to the report Garvin George is 22 years old. He was born at the Marigot Hospital and he is the third of his mother's eleven children. He is the only child born out of the relationship between his mother and his father and his siblings range from the ages of 24 years old to 2 years old and save and except two of his sisters who reside in Antigua they all live here in Dominica all in the village of Calibishie.
Garvin has never really had a relationship with his father and in fact his father has been an inmate at the State Prison whilst Garvin has been on remand there. Garvin at the time of the incident lived with his aged grandmother and has been doing so from birth with his mother and continued to live with her after his mother moved out when he was nine years old.
The Social Worker interviewed the defendant, his mother Sylvia George, his grandmother Franciette Drigo and his step aunts. According to these persons Garvin was a well-behaved young man who helped both his mother and grandmother. His mother who is unemployed and in receipt of some welfare assistance from the state says that Garvin made a meaningful contribution to the maintenance of her home. She said that if he did not bring money for her, he brought groceries and this helped with their survival.
His grandmother who is 94 years old spoke of how he looked after her and how dependant she was on him to take care of her needs. She expressed her fear of never being able to see him again in her lifetime. His aunts spoke of Garvin in a very positive light and described him as being a very respectful person and that he may have been negatively influenced by bad company.
According to members of the Calibishie community who spoke with the Welfare Officer spoke positively of Garvin George and opined that he is not a threat to the community and they expressed shock that he found himself in this kind of trouble. Garvin was described by fellow villagers as one who had a big mouth but was not one known to be violent and it was felt that this was an isolated incident which was not really meant to be.
Garvin was also interviewed by the Welfare Officer who indicated...
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