Mrs. Garcia for Appellant
Mr. Sooknandan for Crown

Application for leave to appeal against sentence of nine years imposed upon conviction for manslaughter - factors to be considered when sentencing - sentence manifestly excessive in all the circumstances of case - application granted - appeal allowed - sentence set aside - sentence of 4 years imprisonment substituted.

J U D G M E N T

On the night of September 28, 1986 a farewell party for departing British soldiers was held at the home of Mr. Salim Juan Sr. At about 9.30 P.m. while the party was in progress a man armed with a shotgun entered through the back door. He appeared to be looking for a particular person and when Mr. Salim Juan Jr. entered the room from another room the gunman shot him. He died later.

The Appellant was one of two men charged with the murder of Salim Juan Jr. The only evidence as to the part he played was contained in a statement he gave to the police and confirmed in his unsworn statement at the trial. According to those statements two men previously unknown to him asked him if he knew any persons who had money and any persons who had firearms. He told them yes and led them to the home of one Maximiliano Sedacy from which the men removed two shotguns. They then asked him to show them Mr. Salim's house and when he refused forced him to do so by pushing his head under water. He then did as they requested. Upon arrival one of the men remained outside with him while the other man entered the house. He heard the sound of a shot and the man came out.

The Appellant was convicted of manslaughter and sentenced to 9 years imprisonment. This is an application for leave to appeal against that sentence.

In support of the application counsel submitted that the sentence was excessive and that the learned trial judge had failed to give sufficient consideration to the age of the Appellant. The time spent in custody prior to the trial, the fact that he had no previous convictions other than one for illegal entry into the country, and the comparatively minor role that he played in the commission of the offence. In addition counsel submitted that in mentioning that the offence of armed robbery carried a minimum sentence of 7 years the learned trial judge appeared to have considered that armed robbery was the motive for the killing when the evidence did not support that conclusion.

The Appellant is a Guatemalan who has no convictions in Belize other than one for illegal entry into Belize which could not in any event be taken into account since that offence was committed after the one giving rise to this appeal. He was 15 years old at the time of commission of the offence but this is the second trial and at the date of sentencing he had passed the age at which the Juvenile Offenders Act could apply to him. He has been in custody since January 1987 and was not the person who fired the fatal shot. On the evidence it is by no means clear that robbery was the objective of the man who fired that shot, but even if it was, the duress alleged by the Appellant would be a defence to robbery and the minimum sentence now provided for that offence should not be a factor in assessing the proper sentence for this offence.

Taking all these matters into consideration we are of the view that the sentence of 9 years imprisonment was manifestly excessive. We therefore grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence and substitute therefor a sentence of 4 years imprisonment.

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