Marco Oliver v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 26 February 2007 |
| Neutral Citation | [2007] UKPC 9 |
| Court | Privy Council |
| Docket Number | Appeal No 21 of 2005 |
| Date | 26 February 2007 |
[2007] UKPC 9
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Carswell]
In July 1999 the appellant Marco Oliver committed a number of serious offences, for which, after various appearances in court, he was given a series of sentences of imprisonment. Some of the sentences were made consecutive and the total came to an effective sentence of 42 years. He brought an appeal to the Court of Appeal of The Bahamas in July 2002, but so far from reducing the sentences, the court increased them to an effective sentence of 55 years, to run from the date of the judgment. The appellant has appealed with special leave to the Privy Council.
The offences for which the appellant was sentenced were committed between 9 and 22 July 1999. They consisted of two rapes, two attempted rapes, two kidnappings, eight armed robberies, two robberies with violence, one attempted robbery with violence and one burglary. It is not necessary for the purposes of this appeal to set out the details of the offences. It is sufficient to say that they were grave offences meriting condign punishment and the fact that the appellant was, as he stated, in the grip of a drug addiction and seeking to obtain money to pay for his drug habit is little excuse. Mr Guthrie QC, who appeared for the appellant before the Board, rightly accepted at the outset that they were bound to be met with substantial sentences. He advanced his arguments primarily on the power of the Court of Appeal to order an increase and the fairness of its taking that course, the issues on which special leave to appeal was given. In dealing with the appellant's constitutional right to a fair hearing he touched upon such issues as the totality principle, the propriety of ordering consecutive sentences, the account to be taken of guilty pleas and early admissions of guilt, the date from which the sentences should run and the appellant's individual circumstances. None of these was referred to by the Court of Appeal in its judgment.
The appellant, who was born on 17 September 1974 and was aged 24 years at the time of the offences, had a history of approximately twelve previous offences, going back to 1986, when he was aged 12 years. They consisted of housebreaking, shopbreaking, stealing and possession of dangerous drugs. They were all dealt with in the magistrates' court, carrying sentences of one year or less. He was tried in November 2001 before Moore J and a jury on two of the offences in the July 1999 series, robbery with violence and attempted rape. He was convicted of both and sentenced to 20 years' imprisonment for the robbery with violence and 10 years for the attempted rape. The judge ordered that the sentences be served consecutively, so that the effective sentence was 30 years. The appellant had been represented by counsel until the close of the defence case, at which point he discharged his counsel and appeared in person from that stage onward and in the subsequent proceedings until the hearing of the appeal before the Board.
He appealed against conviction and sentence and on 18 March 2002 the Court of Appeal (Sawyer P, Ganpatsingh and Osadebay JJA) dismissed the appeal against conviction. In respect of the appeal against sentence Sawyer P stated:
"With regard to sentence we've considered very very carefully all the things the appellant said about the sentence and we've also considered carefully all the things that Mr. Gaskin said. And we have also taken into account the time spent in custody awaiting trial, the fact that it is the first conviction on indictment, and the fact that the minimum sentences provided by law for the more serious offences of armed robbery and rape have been exceeded. But we also take into consideration the seriousness of the offence for which the jury found the appellant guilty, the offence of robbery which was aggravated with physical violence and the potential danger to the alleged victim and also the attempted rape which was one of the more serious offences; indeed, as was commented, it could have been the full offence that the appellant was charged with, in which case this court would not have been able to do anything. We allow the appeal against sentence and in mercy to the appellant –but we can't go too far – we reduce the sentences; the sentence for robbery to 15 years, starting from the date of conviction and sentence and we reduce the sentence for the attempted rape from 10 to 7 years. But they will run consecutively."
The effective sentence was accordingly 22 years.
The appellant was then facing trial on further indictments on which he was charged with the remaining sixteen offences in the series. Before the conclusion of the hearing in the Court of Appeal he indicated his intention to plead guilty to these offences and he appeared before Moore J again in the Supreme Court on 22 March 2002. He entered pleas of guilty to all the charges and the judge was given an outline of the facts constituting each offence. In passing sentence the judge stated that he gave credit for the early pleas, the appellant's remorse and contrition, which he accepted as genuine, and the fact that most items of valuable property had been recovered. He identified as aggravating factors the appellant's poor record, the circumstances of the rapes and use of violence, in particular the use of a knife in one of them and the fact that all of the offences were committed against women, some of them tourist visitors.
The judge imposed the following sentences: 15 years for each armed robbery, the robbery with violence and the attempted robbery with violence, 15 years for the burglary, 20 years for each rape and 7 years for the attempted rape. He ordered that these sentences should run concurrently with each other but consecutively to the sentences which the appellant was already serving. The effective total sentence which the appellant was to serve was accordingly 42 years.
By a notice of appeal dated 2 April 2002 the appellant brought an appeal (for which leave was not required in Bahamian law) to the Court of Appeal. He specifically stated in the notice that he was only appealing against the 20-year sentence for rape that was to run consecutively with the 22-year sentence imposed on 18 March 2002 by the Court of Appeal. He asked the court to make it run concurrently with the 22 years, alternatively to reduce the length of the consecutive sentence. He also requested that he should be allowed credit for the time which he had spent in custody on remand before the date of his conviction and sentence in November 2001. He averred in an affidavit which he swore on 22 February 2006 in support of his appeal to the Privy Council that he had misunderstood the import of the sentences imposed by Moore J on 22 March 2002. He states that he believed that only the 20-year sentence for one of the rapes was made consecutive to the earlier sentences totalling 22 years and that the other sentences imposed on 22 March 2002 were to run concurrently with those earlier sentences. He also claimed to have been unaware that the court had power to increase a sentence on appeal.
An affidavit sworn by Mr Francis Mortimer Cumberbatch was put before the Board, in which he stated:
"1. That I am the Assistant Director of Public Prosecutions in the...
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