Court of Appeal
Criminal Appeal No. 1 of 1977
MICHAL HOGAN, J.A.
CLIFFORD INNISS, J.A.
P. T. GEORGES, J.A.

Criminal Appeal - Application for leave to appeal against sentence - Applicant arguing that sentence of 15 years imprisonment for attempted murder disproportionate to the offence and influenced by irrelevant considerations - Appropriate considerations to be taken into account in sentencing a first offender - Aim of sentence should be individual deterrence rather that general deterrence - Trial judge imposing long prison sentence to protect society for a long time from Applicant's unpredictable violence - Whether trial judge's reasons for sentence appropriate - Leave to appeal against sentence granted, application treated as appeal and sentence reduced.

J U D G M E N T

The applicant in this case seeks leave to appeal from a sentence of 15 years imprisonment imposed on him after conviction by a jury of attempted murder.

The facts as disclosed in the summation were substantially undisputed. The applicant walked into the office of Dr. Humberto Del Castillo Van Heinkel at the Belize City Hospital and attacked him with a knife inflicting two wounds which could be described as dangerous to life. The doctor's alertness and courage in defending himself and the immediate availability of medical help prevented the attack from being fatal and fortunately there does not appear to have been any residual disability.

The reason for the attack was revenge. Six years before when the applicant, who is a Druggist, worked with the doctor in the public service, the doctor had had occasion to report on his increasing unpunctuality and absenteecism. This led to the applicant's transfer to Belize City. The applicant's pattern of behaviour did not change and in due course he lost his job in the public service. He seems thereafter at have had great difficult in holding jobs in his professional field and for a while worked as a labourer.

There is a history of his having received psychiatric treatment and his defence at the trial was insanity. No medical evidence was called, however, and the jury proceeded to convict him.

Immediately after attacking the doctor the applicant was heard to say that he was now going to finish off Issacs, the officer under whom he had been working at the time of his losing his job in the public service.

Mr. Sosa, in his detailed and very thorough argument on behalf of the applicant, was content to argue the appeal on the basis that this Court should not interfere unless the sentence can be shown to be wrong in principle or manifestly excessive (see Benjamin v. Reg. 7 W.I.R. 459) but maintained that it can be faulted on both these grounds.

Although the argument was presented from different angles the basic criticism was that the sentence was disproportionate to the offence and that the length of it must have been influenced by two factors neither of which should have been taken into account ? the first being the general consideration of serving as a deterrent to others and the second being the need to protect the public for a long time from the applicant who seemed to be mentally unstable.

Authority for the first proposition is to be found in Curran (1973) 57 Cr. App. R. 945. In that case a sentence of 4 years imprisonment had been imposed for the offence of handling a Post Office saving account book. In reducing the sentence to two years the Court said ?

"The only question is whether the sentence of three years was excessive. As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; of what sentence is needed to teach this particular offender a lesson which be has not learnt from the lighter sentence which he has previously received."

In referring to a first sentence the Court was speaking of imprisonment as distinct from the earlier fines and the circumstances were in many ways dissimilar from the instant case, nevertheless this statement of principle is, with respect unexceptionable, but here there were no remarks by the trial judge preceding the sentence as there were in Curran so the basic issue remains whether the sentence is in fact disproportionate.

The same situation arises as regards the second consideration - putting the applicant away for along time because he may be likely to erupt into violence unpredictably. We agree with the principle that a trial judge in passing sentence should accept fully the implications necessarily inherent in the verdict of a jury - Sonny Jobe v. R. (1969) 15 W.I.R. 397 at p. 398. Inferentially the jury's verdict negatived insanity as legally defined but this does not mean that the trial judge was precluded from taking into account in passing sentence such indications as may have been available from the evidence of the applicant's mental instability. There are reported cases in England where this has been done see ? Wolland (1966) 51 Cr. App. R. 65 where a sentence of life imprisonment passed to enable a prisoner to be released as soon as possible after treatment was upheld. There was no evidence of mental illness nor subnormality but medical opinion was that quite clearly the prisoner had an unstable personality. Where there is no evidence of mental instability making it likely that the prisoner will be a danger to the public, an indeterminate sentence should not on that account be imposed and the Court should fix the term see Knight (1966) 51 Cr. App. R. 466 and Archbold 38th Ed. para. 939. Again there is nothing to indicate that the learned trial judge took this into account in the present case and it would be unsafe to infer it merely from the length of the term.

In urging that the sentence was disproportionate, Counsel sought to make comparisons with sentences imposed for manslaughter, In our view such a comparison must be treated with reserve. In attempted murder the intent to be established is the much more serious intent to kill. Where, as here, wounds dangerous to life are actually inflicted in the course of the attempt there may well be good reason for imposing a penalty more severe than that generally imposed in bad cases of manslaughter.

As indicated in the final analysis the question remains whether the term of 15 years can be said to be so disproportionate to the gravity of the offence, having regard to the circumstances of the applicant, that it is excessive. Undoubtedly it is in the top range of fixed terms. The applicant had three previous convictions? two of them involving violence but they were all in the month before this episode and, as Mr. Sosa argued, can fairly be regarded as part of the build up of anti? social emotion which culminated in this episode. It has been stressed that he was unemployed and apparently moving into the stage where he would be unemployable ? a factor which caused intense worry and affected his thought processes and capacity for self?control. We are very much aware of the increase which the Director of Public Prosecutions told us has occured in crimes of violence, nevertheless taking all the factors into consideration and accepting that a term of 15 years comes very close to the top of the range of sentences for this type of offence, we are of the view that a term of 12 years' imprisonment would adequately convey the abhorrence of the society for the criminal act and should afford protection against it likely recurrence.

Accordingly leave to appeal against sentence is granted, the application is treated as the appeal which is allowed. The sentence imposed is quashed and a sentence of 12 years substituted.

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