White v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | SIR JOHN DYSON SCJ |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] UKPC 22 |
| Docket Number | Appeal No 0101 of 2009 |
| Court | Privy Council |
| Date | 29 July 2010 |
[2010] UKPC 22
Privy Council
Lord Rodger
Lady Hale
Sir John Dyson
Appellant
Tim Owen QC
Alison Macdonald
(Instructed by Simons Muirhead & Burton)
Respondent
Not represented
On 20 October 2003, the appellant was convicted after a trial before Gonzalez J and a jury in the Supreme Court of Belize (Central Criminal Session) of the murder of Dwayne Arnold. On 24 October 2003, he was sentenced to death by hanging. His appeals against conviction and sentence were dismissed by the Court of Appeal of Belize (Mottley P and Sosa and Carey JJA) on 2 March 2004, reasons being given on 18 June 2004. On 10 February 2010, he was granted permission to appeal against sentence by the Judicial Committee of the Privy Council.
The prosecution case at trial was that on 11 February 2002, the deceased was murdered at Electrical Zone Rebuilding, 88A Cemetery Road, Belize City, where he worked as an electrician. Franz Hamilton, a former employee of the deceased, gave evidence that he had been in the deceased's car when the appellant opened the driver's door, pointed a gun at him and demanded "one quarter". He said that the appellant followed him into the building. The deceased emerged from an office behind the sales counter and asked the appellant what he wanted. The appellant asked the deceased for "one quarter". He then produced a handgun and fired three shots at the deceased. Two lead projectiles were recovered from the deceased's body, one from the head and one from the right arm. At the trial, the appellant's defence was one of alibi.
He was convicted on 20 October 2003. Immediately after the jury's verdict had been pronounced, the Marshall of the court said:
"Earlin White, stand up. Earlin White, the jury have found you guilty of the crime of murder, have you any matter of law to urge why sentence of death should not be pronounced on you?"
The appellant then made a few remarks after which his counsel, Mr Twist, sought from the judge and was granted an adjournment to enable him to prepare a plea in mitigation.
On 24 October, Mr Twist made his plea in mitigation. He referred the judge to the decision of the Board in Reyes v The Queen [2002] UKPC 11, [2002] 2 AC 235. He submitted that the death penalty was discretionary and that the judge should impose a life sentence. The prosecution sought the death penalty.
The appellant was 30 years of age at the time of sentence. He had a number of previous convictions. These included a conviction on 2 November 1994 for manslaughter, for which he was sentenced to 4 years' imprisonment; two drugs offences in 1995, for which he was sentenced to 18 and 3 months' imprisonment respectively; offences of burglary and possessing ammunition without a licence in 1999, for which he was fined; and an offence of "dangerous harm" in May 2003, for which he was sentenced to imprisonment for one year. No psychiatric, psychological or social enquiry reports were placed before the judge.
In passing sentence, the judge said:
"I must say that in this case, right away that I do not see any mitigation factors which would cause me to exercise my discretion and impose a life sentence on the accused person, Earlin White. And I must also say that I have not been persuaded by the mitigation plea made by Mr Twist with a view to cause me to temper justice with mercy and thereby not (sic) impose a life sentence on the accused or on the prisoner. On the contrary, when I consider the manner in which this particular offence was committed the [? prevalence] of this offence and offences of similar nature, together with the fact that the prisoner has the propensity for the commission of offences of this nature, namely manslaughter in 1994, he [was] convicted for that crime, and dangerous harm as early as 2003, I find myself compelled to impose the death sentence on this convicted person, Earlin White. In the circumstances, therefore, I will impose the sentence of death on Earlin White."
Although there was an appeal against sentence to the Court of Appeal, counsel did not advance any arguments in support of it. In these circumstances, the Court of Appeal saw no reason to interfere with the sentence that had been passed.
On behalf of the appellant, Mr Tim Owen QC advances three grounds of appeal. These are that the judge (i) failed to adopt the correct approach to the imposition of a discretionary sentence of death; (ii) failed to adhere to the sentencing guidelines propounded by Conteh CJ in The Queen v Reyes (decision of the Supreme Court of Belize, 25 October 2002); and (iii) failed to obtain a psychiatric report.
Failure to adopt the correct approach
Section 106 of the Criminal Code of Belize provides:
"(1) Every person who commits murder shall suffer death: Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea of mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life.
(3) For the purposes of this section—
'Class A murder' means:-
………
(b) Any murder by shooting…
…….
'Class B murder' means any murder which is not a Class A murder."
Section 7 of the Constitution of Belize provides that "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment." At para 43 of its judgment in Reyes v The Queen, the Board said:
"In a crime of this kind there may well be matters relating both to the offence and the offender which ought properly to be considered before sentence is passed. To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7 exists to protect."
Accordingly, the Board said, any murder by shooting is to be treated as a Class B murder. It remitted the case to the Supreme Court of Belize in order that a judge of that court could pass appropriate sentence on the defendant.
In passing sentence pursuant to the Board's decision, Conteh CJ said at para 17 of his judgment in The Queen v Reyes (decision of the Supreme Court of Belize, 25 October 2002) that the discretion to pass the death penalty "should be informed and guided by, for example, the gravity of the offence, the character and record of the offender, the subjective factors that might have influenced the offender's conduct, the design and manner of execution of the offence and the possibility of reform of the offender." At para 19, he said that "each case should be considered and determined within the overarching constitutional requirement of humanity stipulated in section 7 of the Constitution of Belize, which would include the consideration of the culpability of the offender and of any potentially mitigating circumstances of the offence and the individual offender." At para 20 he said that "it is the imposition of the death penalty rather than its non-imposition for murder that requires justification." These statements gave proper effect to the Board's decision.
At para 21 of its judgment in Trimmingham v The Queen [2009] UKPC 25, the Board distilled the approach that should be followed in discretionary death penalty cases into two basic...
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