The Queen v Roger Joseph

SAINT LUCIA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) SLUCRD2011/2061, 2061A BETWEEN: THE QUEEN vs ROGER JOSEPH Defendant APPEARANCES: Mr. Stephen Brette Deputy Director of Public Prosecutions of Counsel for the Crown Mr. Leslie Mondesir of Counsel for the Defendant ------------------------------------------------------- 2020: June 16 July 2. ------------------------------------------------------- JUDGMENT ON SENTENCING Introduction:

[1]TAYLOR-ALEXANDER, J.: The Defendant Roger Joseph by original indictment filed on the 3rd of May 2013, and subsequent indictment filed 17th February 2017, was indicted for the offence of Non-Capital Murder of Gloria Greenwood, contrary to sections 85 (b) & 87 (1) of the Criminal Code Cap. 3.01 of the Revised Laws of St. Lucia 2008.

[2]On the 6th of June 2013, when the Defendant was originally arraigned, he entered a plea of not guilty. The record shows that there were other trial dates fixed, which were aborted for various reasons. On the 16th day of September 2019, and after a jury had been empaneled for the start of this trial, the Defendant requested that he be re-arraigned on a subsequent indictment filed 17th February 2017, whereupon he pleaded guilty.

[3]The Defendant has also requested that the court give consideration to a related offence of stealing a motor vehicle for which the Defendant has pleaded guilty and that pursuant to Section 2167 of the Criminal Code that he be sentenced for that offence together with the offence of Murder.

Brief Facts on which Guilty Plea was premised

[4]Approximately 8 years and 8 months ago, on the 16th of October 2011, about 9:00 a.m. on a Sunday morning, a day ritualistically set aside for rest and worship on the island of St. Lucia, 79 year old Gloria Greenwood was found dead in her garden outside her home at “Top of The World” Marisule, Gros-Islet. At the time Gloria Greenwood lived alone in a 3 bedroom 2-level house with her three dogs. She was at the time, the owner of a grey/silver Chevrolet four-door hatch back motor car registration number PA 620. She was a citizen of the United Kingdom, who had retired in St. Lucia. She was also a mother of two grown children Gillian E. Greenwood and Alison Ann Pearson who both lived in England.

[5]Gloria Greenwood employed a housekeeper named Verita who worked at her home, weekly from Monday to Thursday. She was also an avid gardener and employed other persons to do the gardening and maintenance, including the Defendant Ricky Joseph. These persons would sometimes stay in an apartment downstairs her house when she travelled to England. The deceased last travelled to England on 20th May 2011 and returned on 5th June 2011. During her absence, she left the Defendant in the downstairs apartment. Upon her return, she discovered that her house had been broken into and some items of jewelry were missing. She reported that fact to the police.

[6]Meanwhile on the 16th of October, 2011 about 6:00 a.m. Gillian Greenwood, the daughter of the deceased who dutifully called her mother thrice daily, tried to reach her via telephone unsuccessfully. She called many times and then took to calling several persons with whom her mother was close including a neighbour Rosemary Cooper, to enquire into the whereabouts of her mother. Rosemary Cooper went to the home of the deceased at about 9:00 a.m. that morning in search of her, and noticed the front door opened and a bedroom in disarray. She went outside and found the deceased lying on the grass in her yard. She noticed there was blood coming from her nose, eyes and mouth. The blood was dried. The top of her body was exposed. Her shorts were pulled down to the bottom of her belly. She was dead. One of her dogs was also missing. A postmortem examination performed by Dr. Stephen King found that the deceased Gloria Greenwood died of brain damage the result of blunt force trauma and aspiration.

[7]On Saturday, the 15th of October 2011, the day before the deceased was discovered, the Defendant visited the home of his cousin, Jessica Joseph and arrived driving a grey 4 door car that resembled the one owned by the deceased. He had a dog on board the car. Jessica questioned him about the car, as she had not known him to own one. On the Monday following the discovery of the deceased, Jason Clairmonte who worked with JQ Charles, the dealership that had sold the vehicle to the deceased, saw a vehicle that resembled the one sold to the deceased, being driven at 8:00 a.m. that morning on the Marchand road by an unknown male. At that time the registration number of the vehicle was reflected as being PA62. The police later arrested the Defendant when they went in pursuit of reports of a stolen vehicle, which was subsequently determined to be owned by the deceased. The dog had been sold to a third party by the Defendant.

[8]At the time of the incident, the Defendant was 33 years old, self employed and resident at Goodlands in Castries. He was an ex-employee of the deceased. He was investigated and arrested when he was found in possession of the deceased’s car.

Plea in Mitigation

[9]Mr. Leslie Mondesir moved the plea in mitigation, for the Defendant at the sentencing hearing and reminded the court that the Defendant pleaded guilty and obviated the need for trial. He expressed remorse evident in the reports of the Psychiatrist Dr. Julius Gillard and the Pre-sentence report helpfully prepared by Mr. Cuthbert Henry, Probation Officer. He submitted that the court should have due regard to the length of time the Defendant had been on remand and the delay of 8 years and 8 months that it has taken to try him. All of these factors, he submitted, are mitigating factors redounding to the benefit of the Defendant. He implored the court to consider that this case although egregious, is not the worst case of Murder and this should be reflected in the sentence that is imposed. He suggested that in the circumstances of this case, an appropriate sentence should be a reasonable term of years. He submitted that the Defendant is a prime candidate for rehabilitation citing his age, his skills as a carpenter, in construction and auto mechanics as positive attributes that would compliment intense community correction, supervision, and support.

Psychiatry Report

[10]The Defendant, on at least one occasion during remand, had taken an overdose of pain medication. To gather a deeper understanding of the Defendant’s mental state at the time of the crime, to address motive and to understand the Defendant's general personality, Dr. Julius Gillard was commissioned to assess the Defendant in 2019, after he entered the plea of guilty. On examination of the Defendant, Dr. Gillard found him to be of mild intellectual disability, with Anti Personality Disorder and Cannabis disorder, in remission, in a controlled environment. He found the Defendant to be able to understand the nature of the charges he faced, capable of deciding whether to plead guilty or not, instruct his Counsel and to give evidence in his own defence. There was no other useful information to be drawn from his report.

Social Inquiry Report

[11]It is a legislated requirement that a social enquiry report is obtained of a Defendant, in circumstances where a court is likely to impose a custodial sentence on a Defendant. The social enquiry report is a useful tool in sentencing, to provide the court with a collateral view of the Defendant, some of which are not directly associated to the crime which he has committed. This allows a court to develop a broader understanding of a Defendant and to determine the appropriateness of any sentence it imposes. The report is also useful in helping the court understand the impact on victims affected by the crime perpetrated by the Defendant.

[12]The report identified several social and environmental risk factors early on in the Defendant’s life that forecasted his present predicament. His early exposure to maltreatment, family violence and poor parenting, resulting in antisocial behaviors in the home environment. His early withdrawal from school by his father at age 10, resulting in poor academic performance and low academic aspirations, without any social interventions were risks that stimulated his later delinquency, criminal behavior and substance abuse. When the deceased Gloria Greenwood offered the Defendant employment and brought him into her home environment, she would have been unaware of his very troubled past and by then, his escalating behavior, which she ultimately was the victim of.

[13]Community information on the Defendant, albeit scant, portrays him as a person who is loving, friendly, industrious and talented. The report highlighted skills he had acquired through his own diligence and will. Carpentry, construction, and auto mechanics are positive factors in his life. However, his history of stealing and housebreaking is thematic, as his family, community and his own self reporting, confirmed that he had committed these acts in his past. Cuthbert Henry found no major mitigation for that risk, except the expression of the Defendant’s intention to desist. His illiteracy remains a risk factor for him, as well as him not maintaining a fixed place of abode. The probation officer concluded that such an offender would need intense community correction, supervision, and support.

[14]I am required to address a statement made by the Defendant to the Probation Officer, which on reading would appear to render the plea of the Defendant equivocal. The Defendant stated in the report that it was he who brought the perpetrator to the home of the deceased, in effect exonerating himself from causing the death of the deceased. The Defendant also communicated to the psychiatrist that it was his lawyer that asked him to plead guilty, but that he did not kill anyone. His regret was that he ran away instead of getting her help. Therefore, before accepting his plea of guilty, I made enquiries of the Defendant, as to whether his understood the plea, whether there was any duress or coercion exerted on him in the change of his plea. My enquiries were to ascertain that his plea was in fact unequivocal. Having satisfied myself of that by direct enquiry of the Defendant, I gave directions for the sentencing hearing.

Victim Impact Statement

[15]The court received statements from the family of the deceased and from the daughters of the deceased. These were read into the record by her daughter. The statements chronicled the family’s disappointment with the chronic and systemic delays that have plagued the progress of this case from investigation to trial spanning a period of over eight (8) year, during which time they endured the agony of delayed justice for their beloved mother. During these eight (8) years they state that the horrifying offence has dominated and totally consumed their lives. Their statements juxtaposed the fond, happy memories of their childhood in Saint Lucia, and their experience of a country that contributed profoundly to their lives, with the dark brutal images of their mum’s untimely death, alone at home, and their relentless agony, pursuing justice for her over an 8 year period.

[16]Anne Pearson, daughter of the deceased reported that her daughter who is the granddaughter of the deceased, was seriously affected. The granddaughter lamented that her grandmother missed her wedding last year, and her many milestones including her becoming a lawyer recently. Mrs. Pearson noted that despite the distance, the deceased was very present in their lives and visited regularly for celebrations or family emergencies.

[17]Gillian Greenwood, another daughter of the deceased, noted that she spoke to her mum religiously three times daily through direct calls with the deceased. She noted that during the year of the mother’s death, she had visited Saint Lucia in July, and had a ticket paid for, to return in December of that year. The daughters both say that they feel robbed of their Saint Lucian heritage. Staying at the house of the deceased after the incident was very traumatic, albeit the Gros-Islet Police would have been supportive and patrolled the area. The house had to be sold at a hugely reduced price to expedite them moving on with their lives. The family dogs had to be given away to family and friends, which was also an emotional transaction. They do not intend to return to Saint Lucia after this trial is over.

Crown’s Submissions

[18]The Crown submitted that this is a case with greater features that aggravate the offence and very little mitigation and submitted that this should be reflected in a more severe penalty. The following are the aggravating features identified by the crown that I have accepted: (i) The victim was targeted on the basis of her vulnerability. The Defendant knew that the deceased was an elderly, single woman, living alone; (ii) The failure of the Defendant to call for medical attention for the deceased after she was struck; (iii) Breach of trust; the Defendant was a former employee of the deceased, someone she had trusted, brought into her home, had allowed to reside in her apartment, and whom she had introduced to her family and her pets who acted as her security; (iv) Relevant to the offence of murder only; The Defendant’s brazen use of the deceased’s vehicle for 3 days after the incident; (v) The Defendant’s attempts to conceal his possession of the deceased’s vehicle by altering the registration number and colour of the car; (vi) His attempts to evade arrest when the police tried stopping him, while in possession of the vehicle of the deceased; (vii) Relevant previous convictions for Housebreaking and Burglary; (viii) The Defendant was, at the time of the incident on bail for the offence of Burglary; (ix) At the time of the incident the Defendant had absconded from bail; (x) Prevalence of the offence of Murder. In 2019 alone there were a total of 51 murders committed on the island. I have considered that to be of significance given that the population of the island is only approximately 181,000 people. The following factors in mitigation have been accepted: - (i) The guilty plea at the door of the trial which I have agreed will benefit the Defendant with a 1/10 discount 1; (ii) The Defendant’s expression of remorse at the sentencing hearing; (iii) There are good prospects for rehabilitation; (iv) The offender did not have a record of previous convictions for personal violence.

[19]I did not apply the delay of 8 years and 8 months as a mitigating factor warranting a reduction in sentence, as my review of the file satisfied me that the delays though some were systemic, others were contributed to by both the Crown and the Defence. Also, what time the Defendant has spent on remand will be deducted from the sentence he is to serve.

Principles of Sentence

[20]The Court of Appeal Desmond Baptiste et al v The Queen Criminal Appeal No. 8 of 2003 has accepted the following four sentencing principles as the principles to which a sentencing judge must have regard when he/she comes to sentence. These are retribution, deterrence prevention and rehabilitation. I have found that for the purposes of this case all four are to prioritized in the punishment of this Defendant, for the following reasons:— (a) Specific Deterrence/General Deterrence It is clear that with two relevant unspent previous convictions, one for housebreaking and one for burglary, and bearing in mind the deceased’s death was accompanied by the theft of her car, dog and other unidentified objects, the previous attempts at mitigating the Defendant behavior were unsuccessful, his recidivism continued and escalated. The punishment imposed for the offences for which he is to be sentenced, must reflect the failure of the previous sentencing approach. Given my reference earlier to the prevalence of the offence of Murder, the approach adopted must also serve as a deterrent to other potential offenders. (b) Retribution The offence of murder continues to be a nasty scourge inflicted of the people of St. Lucia that impacts their very way of life, as the social conditions that allow crime to thrive continue. The Court must by the sentence imposed reflect the society’s abhorrence for the commission of these offences. (c) Prevention Due to the Defendant’s previous convictions and escalating behavior, the sentence imposed must prevents future crime by removing the Defendant from society, and to drive home to the Defendant that such recidivist behavior will not be tolerated by the Courts and is abhorred by Society. I am also cognizant of the recommendations of the probation department as to what is required to mitigate the offensive behavior. (d) Rehabilitation Based on the report of the probation department intense rehabilitation is required in order to mitigate against the emotional and psychological damage that this Defendant has suffered starting in his childhood, this will assist in his eventual reintegration into the society.

Starting Point

[21]The Statutory Penalty upon conviction for non-capital murder in Saint Lucia is a sentence of life imprisonment.

[22]There continues to be a discretion reserved to a sentencing Judge to impose a sentence commensurate with the gravity of the offence and the circumstances of the offender. In Harry Wilson v The Queen Eastern Caribbean Supreme Court Criminal Appeal No.30 of 2004, Rawlins JA as he then was explained this obligation thus:─ “it is a mandatory requirement in murder cases for a Judge to take into account the personal and individual circumstances of the convicted person. The Judge must also take into account the nature and gravity of the offence, the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder, the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person”.

[23]In the United Kingdom, under the under the Criminal Justice Act (CJA)2003, a mandatory life sentence is imposed in all cases of Murder. That provision is however mitigated by legislated provisions, requiring all Courts, passing a mandatory life sentence, to order the minimum term the prisoner must serve, before the Parole Board can consider release on license, unless the seriousness of the offence is so exceptionally high that the prisoner is required to serve a whole life order.

[24]In R v McLaughlin and R V Newell [2014] EWCA Crim. 188, the Court of Appeal, held that whole life sentences imposed pursuant to section 269 of the CJA, in exceptional circumstances, does not violate the rights of the individual under the European Convention as there is an adequate review mechanism where such sentences are imposed. Examples of cases of murder in which a “whole life order” may be the appropriate starting point were indicated to be: (i) The murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the victim, or sexual or sadistic conduct; (ii) The murder of a child if involving the abduction of the child or sexual or sadistic motivation; (iii) A murder for the purpose of advancing a political, religious or ideological cause; or (iv) A murder by an offender previously convicted of murder.

[25]Within the jurisdiction of the Eastern Caribbean Supreme Court Barrow JA, as he then was in Kent Calderon v Queen, and Derek Desir v Queen, Court of Appeal Decision No.9 of 2006 and 10 of 2006 delivering the unanimous decision of the bench opined at paragraph 30 that:— “The maximum sentence for the offence of non-capital murder, as stated in Section 87(2) of the Criminal Code 2004, is life imprisonment and it is a general principle of sentencing that the maximum punishment for an offence must be reserved for the worst instances of the offence. Recent sentences for murder that this court has substituted have included imprisonment for 12 years and 22 years. The lengths of those terms of imprisonment are meaningless in themselves but they serve to establish the proposition that life imprisonment for murder is by no means automatic or the norm or the starting sentence. A great deal depends on the particular facts.” And at paragraph 34 “An indeterminate sentence will be appropriate,..........., in the case of a murder that was committed with the degree of violence such as was used in this case and in the case of offenders whose pre-sentence reports show to be violent and dangerous persons, as was shown in this case. In such a case it may be proper for the Court to decide that the offender would constitute a serious danger to the public for a period of time which could not reliably be estimated at the time of sentence”

[26]The presentence report of this Defendant identified his history of property offences but did not find that there was a history of violence or a perception by his community that the Defendant was violent and /or dangerous. In fact, the reports are that he was not a violent person and was of a pleasant disposition. Our court has not development a criteria to determine when a whole life order should be considered as a starting point, but following the guidance of our court in Kent Calderon v Queen, and Derek Desir v Queen, and the guidance of the UK court in R v McLaughlin and R V Newell, and reviewing the circumstances surrounding the commission of other similar offences in our jurisdiction and the character of the Defendants, in particular in cases such as Q v Rudy Monelle AXACRD2007/0015, Roger George V The State Criminal Appeal No. 4 of 1999, and the Queen v Lance Blades SLUCRD2011/0041,0042. I have not found that this Defendant meets the level of violence or dangerousness for, nor do the circumstances of the case warrant a whole life sentence. In the circumstances a determinate sentence is a more appropriate starting point.

[27]The Crown submits that cases emanating from our jurisdiction have created and sustained a starting point sentence for determinate sentences of 30 years, to be scaled upwards or downwards as the circumstances of the case dictate. They relied on the authority of Queen v Andrew Morille & Ors Criminal Case No 18 of 2007. The Defendant on the other hand relied on Q v Lance Blades where ultimately a sentence of 22 years was imposed on the Defendant for the offence of Murder.

[28]The correct approach in my view is that adopted in Aguillera et al v The State Crim All 5,6,78 of 2015 of the Court of Appeal of Trinidad and Tobago The court relying on the New Zealand case of R v Mako [2000] 2 NZLR 170 said this:- “The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offence, but excluding mitigating and aggravating features relating to the offender. Put another way a starting point “is the sentence considered appropriate for the particular offence (the combination of features) for an adult offender after a defended trial”: I have considered the approach to sentencing adopted for determinate sentences in our jurisdiction, and reasoned the approach in the following cases:— DPP v Crispin Prentice, SKBHCR 2004/0061, St Christopher and Nevis, the accused, a 23 year old with no previous convictions was convicted of murder and sentenced to 25 years imprisonment; DPP v Che Gregory Spencer, SKBHCR 2008/0004, St Christopher and Nevis, the accused was convicted and sentenced for a murder using a firearm. The DPP asked for the death penalty. The accused was sentenced to 18 years Hard Labour; The Queen v Kelvil Nelson ANUHCR2008/0037the Defendant was sentenced to 22 years with Hard Labour. On appeal against conviction against Murder, the Court of Appeal substituted a conviction of Manslaughter and allowed the appeal against sentence to the extent that the sentence of 22 years was varied to 12 years.

[29]I have considered the following aggravating features of the offence; the victim was targeted on the basis of her vulnerability. She was elderly and geographically isolated. She lived here alone away from her family who lived in the United Kingdom. The Defendant knew this, the offence was perpetrated on the weekend when her housekeeper did not work and the prospect of her being discovered was even more remote. He proceeded to gallivant with her car until he was apprehended three days later. It is also material that the Defendant was someone whom the deceased trusted, she had hired him as her gardener and she allowed him the use of her apartment. These factors are relevant as they explain how the Defendant was familiar with the deceased home and surroundings.

[30]Prevalence of the offence of Murder is also relevant to fixing the starting point sentence. There were a total of 51 murders committed on the island. These are factors that make this offence all the more egregious and should be reflected in a higher starting point sentence. I found no mitigating factors of the offence. Based on this assessment I have fixed a starting point sentence for the offence of Murder of 25 years.

[31]I have considered the following aggravating and mitigating factors relevant to the offender namely:— Aggravating factors (i) The failure of the Defendant to call for medical attention for the deceased after she was injured. (ii) The Defendant’s brazen use of the deceased’s vehicle for 3 days after the incident. (iii) The Defendant’s attempts to conceal his possession of the deceased’s vehicle by altering the registration number and colour of the car; (iv) His attempts to evade arrest when the police tried stopping him while in possession of the vehicle of the deceased. (v) Relevant previous convictions for Housebreaking and Burglary; (vi) The Defendant was, at the time of the incident on bail for the offence of Burglary; (vii) At the time of the incident the defendant had absconded from bail.

[32]Mitigating factors (i) The Defendants expression of remorse at the sentencing hearing; (ii) There are good prospects for his rehabilitation; (iii) The offender did not have a record of previous convictions for personal violence.

[33]These are not all to be weighted equally and I have accorded more weight to the fact that at the time of the commission of the offence the Defendant was on bail and had in fact absconded from bail, this to my mind is an indication of an escalation in the Defendant‘s Criminal behavior that requires attention by the imposition of penalties aimed at deterring the Defendant and to reflect the court’s intolerance for repetitive recidivism. Overall the factors in mitigation are outweighed by the aggravating factors, which have caused an upward adjustment in the starting point sentence to 29 years.

Guilty Plea

[34]The Defendant is to benefit from a 1/10 discount in sentence of 2.9 years, taking his sentence to 26 years and 3 months.

Pre Trial Custody Time

[35]According to a document sourced from the Bordelais Correctional Facility dated March 19th 2020 the Defendant was remanded in custody for this offence from November 1st 2011. However it would appear from the Defendant’s conviction record that he became a penal prisoner serving a sentence of ten (10) years on case # SLUCRD 009/0552 from 18th October 2012 to 15th August 2017. That would interrupt any remand time for this offence. That would put the Defendant’s remand pre-trial time for the case at bar – at eleven (11) months eighteen (18) days prior to 18th October 2012, plus two (2) years, eleven (11) months, post 15th August 2017 giving a total of three (3) years ten (10) months and five (5) days. The Defendant’s sentence is to be reduced thus, taking his sentence to 22 years 4 months and 25 days.

Stealing a motor vehicle

[36]This offence carries a statutory maximum penalty of 14 years. I used a starting point sentence of 8 eight years given the facts and circumstances and considering vulnerability of victim, the breach of trust, attempts to conceal vehicle and its subsequent damage.

[37]I accounted for the following aggravating and mitigating factors of the offender. Aggravating factors of Offender:- (a) Vulnerability of the victim; (b) Breach of trust; (c) That the vehicle was used for three (3) days after it was taken in plain sight of all; (d) It was damaged; (e) The Defendant avoided arrest; (f) His attempts to conceal the vehicle; (g) His previous relevant convictions; (h) The Defendant on bail at the time;

[38]Mitigating factors:- (a) Good prospects for rehabilitation. After balancing out, I have increased the starting point sentence from 8 to 12 years, giving more weight to the fact that the Defendant was on bail at the time, the blatant continued use of the vehicle and his concealment of it.

[39]Decision (i) For the offence of Murder the Defendant is sentenced to 22 years 4 months and 25 days imprisonment; (ii) For the offence of stealing a motor vehicle, the Defendant is sentence to 12 years; The sentences are to be served concurrently and take effect from July 3rd 2020.

[40]Ancillary Orders (i) The Defendant is to be enrolled in Anger Replacement Therapy. In default, the Defendant is to serve a further 6 months imprisonment; (ii) The Defendant is to be enrolled and is to participate in the Remedial Education Programme at the facility as long as his educators deem necessary. In default, the Defendant to serve a further 2 years imprisonment; (iii) The Defendant is to be enrolled in a counseling programme designed to build self confidence. In default, the Defendant is to serve a further 1 year imprisonment. (iv) The Defendant be allowed to participate in religious guidance and teaching of his choice; (v) The Defendant is to be enrolled in the farm programme for the duration of his incarceration. In default he is to serve an additional 3 years imprisonment; (vi) Restitution to the executor of the estate of the deceased of the items jewelry that were on the person of the deceased at the time of her death; (vii) The Director of Public Prosecutions is to make counseling available to the family members of the deceased in so far as they require it, whether electronically or otherwise. The cost is to be bourne by the State.

V. GEORGIS TAYLOR-ALEXANDER

HIGH COURT JUDGE

BY THE COURT

REGISTRAR

SAINT LUCIA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) SLUCRD2011/2061, 2061A BETWEEN: THE QUEEN vs ROGER JOSEPH Defendant APPEARANCES: Mr. Stephen Brette Deputy Director of Public Prosecutions of Counsel for the Crown Mr. Leslie Mondesir of Counsel for the Defendant ——————————————————- 2020: June 16 July 2. ——————————————————- JUDGMENT ON SENTENCING Introduction:

[1]TAYLOR-ALEXANDER, J.: The Defendant Roger Joseph by original indictment filed on the 3 rd of May 2013, and subsequent indictment filed 17 th February 2017, was indicted for the offence of Non-Capital Murder of Gloria Greenwood, contrary to sections 85 (b) & 87 (1) of the Criminal Code Cap. 3.01 of the Revised Laws of St. Lucia 2008.

[2]On the 6 th of June 2013, when the Defendant was originally arraigned, he entered a plea of not guilty. The record shows that there were other trial dates fixed, which were aborted for various reasons. On the 16 th day of September 2019, and after a jury had been empaneled for the start of this trial, the Defendant requested that he be re-arraigned on a subsequent indictment filed 17 th February 2017, whereupon he pleaded guilty.

[3]The Defendant has also requested that the court give consideration to a related offence of stealing a motor vehicle for which the Defendant has pleaded guilty and that pursuant to Section 2167 of the Criminal Code that he be sentenced for that offence together with the offence of Murder. Brief Facts on which Guilty Plea was premised

[4]Approximately 8 years and 8 months ago, on the 16 th of October 2011, about 9:00 a.m. on a Sunday morning, a day ritualistically set aside for rest and worship on the island of St. Lucia, 79 year old Gloria Greenwood was found dead in her garden outside her home at “Top of The World” Marisule, Gros-Islet. At the time Gloria Greenwood lived alone in a 3 bedroom 2-level house with her three dogs. She was at the time, the owner of a grey/silver Chevrolet four-door hatch back motor car registration number PA 620. She was a citizen of the United Kingdom, who had retired in St. Lucia. She was also a mother of two grown children Gillian E. Greenwood and Alison Ann Pearson who both lived in England.

[5]Gloria Greenwood employed a housekeeper named Verita who worked at her home, weekly from Monday to Thursday. She was also an avid gardener and employed other persons to do the gardening and maintenance, including the Defendant Ricky Joseph. These persons would sometimes stay in an apartment downstairs her house when she travelled to England. The deceased last travelled to England on 20 th May 2011 and returned on 5 th June 2011. During her absence, she left the Defendant in the downstairs apartment. Upon her return, she discovered that her house had been broken into and some items of jewelry were missing. She reported that fact to the police.

[6]Meanwhile on the 16 th of October, 2011 about 6:00 a.m. Gillian Greenwood, the daughter of the deceased who dutifully called her mother thrice daily, tried to reach her via telephone unsuccessfully. She called many times and then took to calling several persons with whom her mother was close including a neighbour Rosemary Cooper, to enquire into the whereabouts of her mother. Rosemary Cooper went to the home of the deceased at about 9:00 a.m. that morning in search of her, and noticed the front door opened and a bedroom in disarray. She went outside and found the deceased lying on the grass in her yard. She noticed there was blood coming from her nose, eyes and mouth. The blood was dried. The top of her body was exposed. Her shorts were pulled down to the bottom of her belly. She was dead. One of her dogs was also missing. A postmortem examination performed by Dr. Stephen King found that the deceased Gloria Greenwood died of brain damage the result of blunt force trauma and aspiration.

[7]On Saturday, the 15 th of October 2011, the day before the deceased was discovered, the Defendant visited the home of his cousin, Jessica Joseph and arrived driving a grey 4 door car that resembled the one owned by the deceased. He had a dog on board the car. Jessica questioned him about the car, as she had not known him to own one. On the Monday following the discovery of the deceased, Jason Clairmonte who worked with JQ Charles, the dealership that had sold the vehicle to the deceased, saw a vehicle that resembled the one sold to the deceased, being driven at 8:00 a.m. that morning on the Marchand road by an unknown male. At that time the registration number of the vehicle was reflected as being PA62. The police later arrested the Defendant when they went in pursuit of reports of a stolen vehicle, which was subsequently determined to be owned by the deceased. The dog had been sold to a third party by the Defendant.

[8]At the time of the incident, the Defendant was 33 years old, self employed and resident at Goodlands in Castries. He was an ex-employee of the deceased. He was investigated and arrested when he was found in possession of the deceased’s car. Plea in Mitigation

[10]The Defendant, on at least one occasion during remand, had taken an overdose of pain medication. To gather a deeper understanding of the Defendant’s mental state at the time of the crime, to address motive and to understand the Defendant’s general personality, Dr. Julius Gillard was commissioned to assess the Defendant in 2019, after he entered the Plea of guilty. On examination of the Defendant, Dr. Gillard found him to be of mild intellectual disability, with Anti Personality Disorder and Cannabis disorder, in remission, in a controlled environment. He found the Defendant to be able to understand the nature of the charges he faced, capable of deciding whether to plead guilty or not, instruct his Counsel and to give evidence in his own defence. There was no other useful information to be drawn from his report. Social Inquiry Report

[9]Mr. Leslie Mondesir moved the plea in mitigation, for the Defendant at the sentencing hearing and reminded the court that the Defendant pleaded guilty and obviated the need for trial. He expressed remorse evident in the reports of the Psychiatrist Dr. Julius Gillard and the Pre-sentence report helpfully prepared by Mr. Cuthbert Henry, Probation Officer. He submitted that the court should have due regard to the length of time the Defendant had been on remand and the delay of 8 years and 8 months that it has taken to try him. All of these factors, he submitted, are mitigating factors redounding to the benefit of the Defendant. He implored the court to consider that this case although egregious, is not the worst case of Murder and this should be reflected in the sentence that is imposed. He suggested that in the circumstances of this case, an appropriate sentence should be a reasonable term of years. He submitted that the Defendant is a prime candidate for rehabilitation citing his age, his skills as a carpenter, in construction and auto mechanics as positive attributes that would compliment intense community correction, supervision, and support. Psychiatry Report

[12]The Report identified several social and environmental risk factors early on in the Defendant’s life that forecasted his present predicament. His early exposure to maltreatment, family violence and poor parenting, resulting in antisocial behaviors in the home environment. His early withdrawal from school by his father at age 10, resulting in poor academic performance and low academic aspirations, without any social interventions were risks that stimulated his later delinquency, criminal behavior and substance abuse. When the deceased Gloria Greenwood offered the Defendant employment and brought him into her home environment, she would have been unaware of his very troubled past and by then, his escalating behavior, which she ultimately was the victim of.

[14]I am required to address a statement made by the Defendant to the Probation Officer, which on reading would appear to render the plea of the Defendant equivocal. The Defendant stated in the Report that it was he who brought the perpetrator to the home of the deceased, in effect exonerating himself from causing the death of the deceased. The Defendant also communicated to the psychiatrist that it was his lawyer that asked him to plead guilty, but that he did not kill anyone. His regret was that he ran away instead of getting her help. Therefore, before accepting his plea of guilty, I made enquiries of the Defendant, as to whether his understood the plea, whether there was any duress or coercion exerted on him in the change of his plea. My enquiries were to ascertain that his plea was in fact unequivocal. Having satisfied myself of that by direct enquiry of the Defendant, I gave directions for the sentencing hearing. Victim Impact Statement

[11]It is a legislated requirement that a social enquiry report is obtained of a Defendant, in circumstances where a court is likely to impose a custodial sentence on a Defendant. The social enquiry report is a useful tool in sentencing, to provide the court with a collateral view of the Defendant, some of which are not directly associated to the crime which he has committed. This allows a court to develop a broader understanding of a Defendant and to determine the appropriateness of any sentence it imposes. The report is also useful in helping the court understand the impact on victims affected by the crime perpetrated by the Defendant.

[13]Community information on the Defendant, albeit scant, portrays him as a person who is loving, friendly, industrious and talented. The report highlighted skills he had acquired through his own diligence and will. Carpentry, construction, and auto mechanics are positive factors in his life. However, his history of stealing and housebreaking is thematic, as his family, community and his own self reporting, confirmed that he had committed these acts in his past. Cuthbert Henry found no major mitigation for that risk, except the expression of the Defendant’s intention to desist. His illiteracy remains a risk factor for him, as well as him not maintaining a fixed place of abode. The probation officer concluded that such an offender would need intense community correction, supervision, and support.

[1]; (ii) The Defendant’s expression of remorse at the sentencing hearing; (iii) There are good prospects for rehabilitation; (iv) The offender did not have a record of previous convictions for personal violence.

[15]The court received statements from the family of the deceased and from the daughters of the deceased. These were read into the record by her daughter. The statements chronicled the family’s disappointment with the chronic and systemic delays that have plagued the progress of this case from investigation to trial spanning a period of over eight (8) year, during which time they endured the agony of delayed justice for their beloved mother. During these eight (8) years they state that the horrifying offence has dominated and totally consumed their lives. Their statements juxtaposed the fond, happy memories of their childhood in Saint Lucia, and their experience of a country that contributed profoundly to their lives, with the dark brutal images of their mum’s untimely death, alone at home, and their relentless agony, pursuing justice for her over an 8 year period.

[16]Anne Pearson, daughter of the deceased reported that her daughter who is the granddaughter of the deceased, was seriously affected. The granddaughter lamented that her grandmother missed her wedding last year, and her many milestones including her becoming a lawyer recently. Mrs. Pearson noted that despite the distance, the deceased was very present in their lives and visited regularly for celebrations or family emergencies.

[17]Gillian Greenwood, another daughter of the deceased, noted that she spoke to her mum religiously three times daily through direct calls with the deceased. She noted that during the year of the mother’s death, she had visited Saint Lucia in July, and had a ticket paid for, to return in December of that year. The daughters both say that they feel robbed of their Saint Lucian heritage. Staying at the house of the deceased after the incident was very traumatic, albeit the Gros-Islet Police would have been supportive and patrolled the area. The house had to be sold at a hugely reduced price to expedite them moving on with their lives. The family dogs had to be given away to family and friends, which was also an emotional transaction. They do not intend to return to Saint Lucia after this trial is over. Crown’s Submissions

[22]There continues to be a discretion reserved to a sentencing Judge to impose a sentence commensurate with the gravity of the offence and the circumstances of the offender. In Harry Wilson v The Queen Eastern Caribbean Supreme Court Criminal Appeal No.30 of 2004, Rawlins JA as he then was explained this obligation thus:─ “it is a mandatory requirement in murder cases for a Judge to take into account the personal and individual circumstances of the convicted person. The Judge must also take into account the nature and gravity of the offence, the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder, the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person”.

[18]The Crown submitted that this is a case with greater features that aggravate the offence and very little mitigation and submitted that this should be reflected in a more severe penalty. The following are the aggravating features identified by the crown that I have accepted: (i) The victim was targeted on the basis of her vulnerability. The Defendant knew that the deceased was an elderly, single woman, living alone; (ii) The failure of the Defendant to call for medical attention for the deceased after she was struck; (iii) Breach of trust; the Defendant was a former employee of the deceased, someone she had trusted, brought into her home, had allowed to reside in her apartment, and whom she had introduced to her family and her pets who acted as her security; (iv) Relevant to the offence of murder only; The Defendant’s brazen use of the deceased’s vehicle for 3 days after the incident; (v) The Defendant’s attempts to conceal his possession of the deceased’s vehicle by altering the registration number and colour of the car; (vi) His attempts to evade arrest when the police tried stopping him, while in possession of the vehicle of the deceased; (vii) Relevant previous convictions for Housebreaking and Burglary; (viii) The Defendant was, at the time of the incident on bail for the offence of Burglary; (ix) At the time of the incident the Defendant had absconded from bail; (x) Prevalence of the offence of Murder. In 2019 alone there were a total of 51 murders committed on the island. I have considered that to be of significance given that the population of the island is only approximately 181,000 people. The following factors in mitigation have been accepted: – (i) The guilty plea at the door of the trial which I have agreed will benefit the Defendant with a 1/10 discount

[19]I did not apply the delay of 8 years and 8 months as a mitigating factor warranting a reduction in sentence, as my review of the file satisfied me that the delays though some were systemic, others were contributed to by both the Crown and the Defence. Also, what time the Defendant has spent on remand will be deducted from the sentence he is to serve. Principles of Sentence

[25]Within the jurisdiction of the Eastern Caribbean Supreme Court Barrow JA, as he then was in Kent Calderon v Queen, and Derek Desir v Queen, Court of Appeal Decision No.9 of 2006 and 10 of 2006 delivering the unanimous decision of the bench opined at paragraph 30 that:- “The maximum Sentence for the offence of non-capital murder, as stated in Section 87(2) of the Criminal Code 2004, is life imprisonment and it is a general principle of sentencing that the maximum punishment for an offence must be reserved for the worst instances of the offence. Recent sentences for murder that this court has substituted have included imprisonment for 12 years and 22 years. The lengths of those terms of imprisonment are meaningless in themselves but they serve to establish the proposition that life imprisonment for murder is by no means automatic or the norm or the starting sentence. A great deal depends on the particular facts.” And at paragraph 34 “An indeterminate sentence will be appropriate,……….., in the case of a murder that was committed with the degree of violence such as was used in this case and in the case of offenders whose pre-sentence reports show to be violent and dangerous persons, as was shown in this case. In such a case it may be proper for the Court to decide that the offender would constitute a serious danger to the public for a period of time which could not reliably be estimated at the time of sentence”

[20]The Court of Appeal Desmond Baptiste et al v The Queen Criminal Appeal No. 8 of 2003 has accepted the following four sentencing principles as the principles to which a sentencing judge must have regard when he/she comes to sentence. These are retribution, deterrence prevention and rehabilitation. I have found that for the purposes of this case all four are to prioritized in the punishment of this Defendant, for the following reasons:— (a) Specific Deterrence/General Deterrence It is clear that with two relevant unspent previous convictions, one for housebreaking and one for burglary, and bearing in mind the deceased’s death was accompanied by the theft of her car, dog and other unidentified objects, the previous attempts at mitigating the Defendant behavior were unsuccessful, his recidivism continued and escalated. The punishment imposed for the offences for which he is to be sentenced, must reflect the failure of the previous sentencing approach. Given my reference earlier to the prevalence of the offence of Murder, the approach adopted must also serve as a deterrent to other potential offenders. (b) Retribution The offence of murder continues to be a nasty scourge inflicted of the people of St. Lucia that impacts their very way of life, as the social conditions that allow crime to thrive continue. The Court must by the sentence imposed reflect the society’s abhorrence for the commission of these offences. (c) Prevention Due to the Defendant’s previous convictions and escalating behavior, the sentence imposed must prevents future crime by removing the Defendant from society, and to drive home to the Defendant that such recidivist behavior will not be tolerated by the Courts and is abhorred by Society. I am also cognizant of the recommendations of the probation department as to what is required to mitigate the offensive behavior. (d) Rehabilitation Based on the report of the probation department intense rehabilitation is required in order to mitigate against the emotional and psychological damage that this Defendant has suffered starting in his childhood, this will assist in his eventual reintegration into the society. Starting Point

[27]The Crown submits that cases emanating from our jurisdiction have created and sustained a Starting Point sentence for determinate sentences of 30 years, to be scaled upwards or downwards as the circumstances of the case dictate. They relied on the authority of Queen v Andrew Morille & Ors Criminal Case No 18 of 2007. The Defendant on the other hand relied on Q v Lance Blades where ultimately a sentence of 22 years was imposed on the Defendant for the offence of Murder.

[21]The Statutory Penalty upon conviction for non-capital murder in Saint Lucia is a sentence of life imprisonment.

[23]In the United Kingdom, under the under the Criminal Justice Act (CJA)2003, a mandatory life sentence is imposed in all cases of Murder. That provision is however mitigated by legislated provisions, requiring all Courts, passing a mandatory life sentence, to order the minimum term the prisoner must serve, before the Parole Board can consider release on license, unless the seriousness of the offence is so exceptionally high that the prisoner is required to serve a whole life order.

[24]In R v McLaughlin and R V Newell [2014] EWCA Crim. 188, the Court of Appeal, held that whole life sentences imposed pursuant to section 269 of the CJA, in exceptional circumstances, does not violate the rights of the individual under the European Convention as there is an adequate review mechanism where such sentences are imposed. Examples of cases of murder in which a “whole life order” may be the appropriate starting point were indicated to be: (i) The murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the victim, or sexual or sadistic conduct; (ii) The murder of a child if involving the abduction of the child or sexual or sadistic motivation; (iii) A murder for the purpose of advancing a political, religious or ideological cause; or (iv) A murder by an offender previously convicted of murder.

[26]The presentence report of this Defendant identified his history of property offences but did not find that there was a history of violence or a perception by his community that the Defendant was violent and /or dangerous. In fact, the reports are that he was not a violent person and was of a pleasant disposition. Our court has not development a criteria to determine when a whole life order should be considered as a starting point, but following the guidance of our court in Kent Calderon v Queen, and Derek Desir v Queen, and the guidance of the UK court in R v McLaughlin and R V Newell, , and reviewing the circumstances surrounding the commission of other similar offences in our jurisdiction and the character of the Defendants, in particular in cases such as Q v Rudy Monelle AXACRD2007/0015, Roger George V The State Criminal Appeal No. 4 of 1999, and the Queen v Lance Blades SLUCRD2011/0041,0042. I have not found that this Defendant meets the level of violence or dangerousness for, nor do the circumstances of the case warrant a whole life sentence. In the circumstances a determinate sentence is a more appropriate starting point.

[28]The correct approach in my view is that adopted in Aguillera et al v The State Crim All 5,6,78 of 2015 of the Court of Appeal of Trinidad and Tobago The court relying on the New Zealand case of R v Mako [2000] 2 NZLR 170 said this:- “The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offence, but excluding mitigating and aggravating features relating to the offender. Put another way a starting point “is the sentence considered appropriate for the particular offence (the combination of features) for an adult offender after a defended trial”: I have considered the approach to sentencing adopted for determinate sentences in our jurisdiction, and reasoned the approach in the following cases:— DPP v Crispin Prentice, , SKBHCR 2004/0061, St Christopher and Nevis, the accused, a 23 year old with no previous convictions was convicted of murder and sentenced to 25 years imprisonment; DPP v Che Gregory Spencer, , SKBHCR 2008/0004, St Christopher and Nevis, the accused was convicted and sentenced for a murder using a firearm. The DPP asked for the death penalty. The accused was sentenced to 18 years Hard Labour; The Queen v Kelvil Nelson ANUHCR2008/0037the Defendant was sentenced to 22 years with Hard Labour. On appeal against conviction against Murder, the Court of Appeal substituted a conviction of Manslaughter and allowed the appeal against sentence to the extent that the sentence of 22 years was varied to 12 years.

[29]I have considered the following aggravating features of the offence; the victim was targeted on the basis of her vulnerability. She was elderly and geographically isolated. She lived here alone away from her family who lived in the United Kingdom. The Defendant knew this, the offence was perpetrated on the weekend when her housekeeper did not work and the prospect of her being discovered was even more remote. He proceeded to gallivant with her car until he was apprehended three days later. It is also material that the Defendant was someone whom the deceased trusted, she had hired him as her gardener and she allowed him the use of her apartment. These factors are relevant as they explain how the Defendant was familiar with the deceased home and surroundings.

[30]Prevalence of the offence of Murder is also relevant to fixing the starting point sentence. There were a total of 51 murders committed on the island. These are factors that make this offence all the more egregious and should be reflected in a higher starting point sentence. I found no mitigating factors of the offence. Based on this assessment I have fixed a starting point sentence for the offence of Murder of 25 years.

[31]I have considered the following aggravating and mitigating factors relevant to the offender namely:— Aggravating factors (i) The failure of the Defendant to call for medical attention for the deceased after she was injured. (ii) The Defendant’s brazen use of the deceased’s vehicle for 3 days after the incident. (iii) The Defendant’s attempts to conceal his possession of the deceased’s vehicle by altering the registration number and colour of the car; (iv) His attempts to evade arrest when the police tried stopping him while in possession of the vehicle of the deceased. (v) Relevant previous convictions for Housebreaking and Burglary; (vi) The Defendant was, at the time of the incident on bail for the offence of Burglary; (vii) At the time of the incident the defendant had absconded from bail.

[32]Mitigating factors (i) The Defendants expression of remorse at the sentencing hearing; (ii) There are good prospects for his rehabilitation; (iii) The offender did not have a record of previous convictions for personal violence.

[33]These are not all to be weighted equally and I have accorded more weight to the fact that at the time of the commission of the offence the Defendant was on bail and had in fact absconded from bail, this to my mind is an indication of an escalation in the Defendant’s Criminal behavior that requires attention by the imposition of penalties aimed at deterring the Defendant and to reflect the court’s intolerance for repetitive recidivism. Overall the factors in mitigation are outweighed by the aggravating factors, which have caused an upward adjustment in the starting point sentence to 29 years. Guilty Plea

[1]I relied for guidance on Practice Direction No. 1 of2015 Section 12 (1)(d) and the Sentencing Council of the UK definitive guideline, reduction in sentence for a Guilty Plea

[34]The Defendant is to benefit from a 1/10 discount in sentence of 2.9 years, taking his sentence to 26 years and 3 months. Pre Trial Custody Time

[35]According to a document sourced from the Bordelais Correctional Facility dated March 19 th 2020 the Defendant was remanded in custody for this offence from November 1 st 2011. However it would appear from the Defendant’s conviction record that he became a penal prisoner serving a sentence of ten (10) years on case # SLUCRD 009/0552 from 18 th October 2012 to 15 th August 2017. That would interrupt any remand time for this offence. That would put the Defendant’s remand pre-trial time for the case at bar – at eleven (11) months eighteen (18) days prior to 18 th October 2012, plus two (2) years, eleven (11) months, post 15 th August 2017 giving a total of three (3) years ten (10) months and five (5) days. The Defendant’s sentence is to be reduced thus, taking his sentence to 22 years 4 months and 25 days. Stealing a motor vehicle

[36]This offence carries a statutory maximum penalty of 14 years. I used a starting point sentence of 8 eight years given the facts and circumstances and considering vulnerability of victim, the breach of trust, attempts to conceal vehicle and its subsequent damage.

[37]I accounted for the following aggravating and mitigating factors of the offender. Aggravating factors of Offender:- (a) Vulnerability of the victim; (b) Breach of trust; (c) That the vehicle was used for three (3) days after it was taken in plain sight of all; (d) It was damaged; (e) The Defendant avoided arrest; (f) His attempts to conceal the vehicle; (g) His previous relevant convictions; (h) The Defendant on bail at the time;

[38]Mitigating factors:- (a) Good prospects for rehabilitation. After balancing out, I have increased the starting point sentence from 8 to 12 years, giving more weight to the fact that the Defendant was on bail at the time, the blatant continued use of the vehicle and his concealment of it.

[39]Decision (i) For the offence of Murder the Defendant is sentenced to 22 years 4 months and 25 days imprisonment; (ii) For the offence of stealing a motor vehicle, the Defendant is sentence to 12 years; The sentences are to be served concurrently and take effect from July 3 rd 2020.

[40]Ancillary Orders (i) The Defendant is to be enrolled in Anger Replacement Therapy. In default, the Defendant is to serve a further 6 months imprisonment; (ii) The Defendant is to be enrolled and is to participate in the Remedial Education Programme at the facility as long as his educators deem necessary. In default, the Defendant to serve a further 2 years imprisonment; (iii) The Defendant is to be enrolled in a counseling programme designed to build self confidence. In default, the Defendant is to serve a further 1 year imprisonment. (iv) The Defendant be allowed to participate in religious guidance and teaching of his choice; (v) The Defendant is to be enrolled in the farm programme for the duration of his incarceration. In default he is to serve an additional 3 years imprisonment; (vi) Restitution to the executor of the estate of the deceased of the items jewelry that were on the person of the deceased at the time of her death; (vii) The Director of Public Prosecutions is to make counseling available to the family members of the deceased in so far as they require it, whether electronically or otherwise. The cost is to be bourne by the State. V. GEORGIS TAYLOR-ALEXANDER HIGH COURT JUDGE BY THE COURT REGISTRAR