The State v Clement Labassiere

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA (Criminal) DOM HCR2011/00047 BETWEEN THE STATE AND CLEMENTLABASSERE [2013: February 8th, 18th, 25th ] March 15th] Appearances: Mr. Gene Pestaina Director of Public Prosecution with Mr. Clement Joseph and Arttllyn Nesty State Counsel for the State Mr. Darius Jones for the Defendant JUDGMENT ON SENTENCING (Criminal Law -Defendant charged with murder and found guilty of manslaughter Principles of Sentencing -consideration of aggravating and mitigating factors -Sentencing guidelines for manslaughter)

[1]STEPHENSON J: On the 8th Februay 2012 the defendant was indicted by the Learned Director of Public Prosecution for the offence of Murder for that he between the 16th and 19th day of February 2011 at Vielle Case in the Parish of St Andrew in the Commonwealth of Dominica did murder Ambrose Leblanc. Upon his arraignment he pleaded not guilty.

[2]After a six day trial he was found to be guilty of the lesser offence of Manslaughter by ajury of his peers. He is now before the Court to be sentenced.

The facts:

[3]The deceased was the great uncle of the defendant they both lived at Ambas in Vielie Case. Sometime during the course of the morning on the 16th February 2011 there was an altercation between the defendant and the deceased and the defendant hit the deceased in his head with a PVC pine which was 2 % x 2 feet The deceased was taken to the Health Center and then to the Ronald Armour Hospital in Portsmouth where he was admitted and due to his deteriorating condition he was transferred to the Princess Margaret Hospital in Roseau where he was admitted and later succumbed on Saturday 18th February 2011.

[4]A post-mortem exam was performed by the forensic pathologist Dr Jeffrey Nine who stated that in his opinion the deceased died as a result of a stroke that was brought on by the contributing effect of a blow to the head. The doctor observed a 1 % by 1 inch stellate laceration with a % inch abrasion in the center and bruising to the underlying scalp. The doctor observed that his brain had a large area of bleeding on the light side from a stroke. The doctor opined that if the deceased had not received the injury to the head that he did not believe he would have died at the time, that the injury was caused by a blunt object and that it was possible for the murder weapon to cause the injury.

[5]The defendant gave the investigating officer two statements one in the form of answers to a question and answer interview and the other in the form of an accused statement. He made both statements under caution. The defendant also gave a lengthy unsworn statement of what happened on the faithful day.

[6]In short his version of the events was that on the morning in question he was in his garden roasting breadfruit when he noticed the deceased destroying his tania and plantain plants which he planted in a mutual family member’s lot on the boundary of the deceased’s lot He said that the deceased was in his garden with a cutlass in his hand destroying his plants, the defendant said he spoke to the deceased about his actions and that the deceased took up a galvanise and mashed up another of his plants and that the deceased came upon him with the cutlass in his hand and that’s what he saw him dOing so he took a pipe that he had in his hand at the time and struck him with it He said that he “… sent it after him. It bounce offhis head and go lower down … that when he saw the deceased faR down he ran down and picked up the pipe and ran to the police station.” There were no eye witnesses to the incident and the court had to rely on the statements made by the defendant in an attempt to understand what happened. [7) It is to be noted that the defendant sought to give this court a litany of complaints about the deceased and his two sons which litany was not lucid at all times. Suffice it to say that the defendant claimed that there was constant bad blood between the deceased, the deceased sons and him over goats that the sons allegedly stole from him and over the destruction of the plants in his garden. It is to be noted that the deceased’s son in his sworn evidence before this Court said he never knew the defendant to have any garden and that it was the defendant who in fact stole goats from him. It is also noted that the Inspector of Police Inspector Matthias Abraham and Police Corporal Terry Royer did not speak to seeing any teshly destroyed plants in support of the defendanfs claim.

[8]The defendant has been on remand since the 23rd February 2011 at the State Prison at Stockfarm. He has had previous convictions and is no stranger to being incarcerated. The Social Inquiry Report and Psychiatric report:

[9]A Social Inquiry Report was ordered and presented to the Court by Mrs. Delia Giddings-Steadman a Probation Officer. A Psychiatric Report was also ordered and presented to the Court by Mr. Griffin Benjamin MD, MPH, MBA, DM Consultant Psychiatrist

[10]The defendant was bom of ayoung teenaged mother and brought up by his maternal grandmother. He attended primary school and left school at 15 without any academic achievement He then proceeded to embark on a career of fishing and agriculture. He also spent some time in Guadeloupe albeit illegally. The defendanfs maternal grandmother described him as a helpful person who was a bit irresponsible. She was of the view that the defendant has followed bad company which has led him to make wrong choices. As it regards the incident resulting in the death of his great uncle, the defendanfs grandmother said she was saddened by the incident but was of the view that her grandson was provoked on the day in question and she was hopeful that he would have been acquitted. [11]The defendant has fathered a number of children none of whom save and except his eldest daughter does he have a relationship with, in fact it is to be noted that he has never axepted responsibility of any of them and it is his grandmother with whom he grew up who has taken responsibility for the eldest child and who has acknowledge some of his offspring to be his.

[12]The community of Ambas, Vielle Case did not have anything positive or complimentary to say about the defendant in fact. he was variously described by members of both his community and family as being a “trouble maker”, “bad boy”, as a person with “violent tendencies” and a ~reatto the wider community”. It was noted that the members of the community said that he was known for terrorizing persons and creating instability as it relates to peace and safety in the community. Members of the community were noted to feel unsafe whenever he was living within the community.

[13]Mr. Labassiere, admitted to the Probation Officer that he smoked marijuana and that he drank socially.

[14]The sons of the deceased Israel and Dennis Leblanc are both understandably angered by the manner in which their father met his death. They both spoke of their father as being loving, hardworking and supportive of his family and they were both of the opinion that their father was alone on the day of the incident and was therefore at the mercy of the defendant Both brothers expressed the view that the community is now asafer place with the defendant being not there and expressed the desire to see the defendant receive the maximum sentence for their father’s death.

[15]Mr. Griffin Benjamin conducted a psychiatric assessment and presented a report to the Court for purposes of sentencing. He said that the defendant was not suffering from any significant psychiatric disorder and had no medical history of mental health problems or any record of psychiatric consultation or intervention. Mr. Benjamin noted that the defendant was void of any emotional relations or remorse as it regards the victim’s death. Mr. Labassiere sought to blame the victim for placing his head in the path of the object causing his own death. The Consultant Psychiatrist opined that “This animated but irrational argument in defence of his action seemed deliberate as he presented with no signs of neurological, psychological or cognitive deficit affecting his memory, judgment or level ofconsciousness.1”

[16]Given the state of the evidence and the respective cases of the prosecution and the defence at the bial, the issues of self defence, provocation and manslaughter were left for the jury’s consideration. This Court has accepted the jury’s verdict of guilty of manslaughter instead of murder. This however in no way bivialises the action of the defendant There was an unlawful act on his part which resulted in the death of Ambrose Le Blanc.

[17]It is now for the Court to determine what the appropriate sentence is to be imposed upon the defendant Section 6of the Offences against the Person’s Act 2 says “Any person who is convicted ofmanslaughter is liable to such line as the Court may award and to imprisonment for life” [18]A sentencing judge is obliged to take into consideration the principles of sentencing namely “retribution, deterrence, prevention and rehabilitation’ as was laid down in the case of R-vSergeant3

[19]In that case Lawson LJ had this to say:”… anyjudge who comes to sentence ought always to have those four classical principals in mind and to apply them to the facts ofthe case to see which of them has the greatest importance in the case with which he is dealing”4

[20]These principles have been applied by the Courts in this jurisdiction. Sir Dennis Byron CJ (as he then was) said this in the Desmond Baptiste -Y-R5 case Retribution This limb should reflect the SOCiety’s intolerance to criminal conduct. The Court must show society’s abhorrence of particular types of crimes by the sentence I pass. Deterrence Deterrence is general as well as specific in nature. The former is intended to be arestraint against potential criminal dvity by others whereas the latter is a restraint against the particular criminal relapsing into recidivist behaviour. Of what value however are sentences that are grounded in deterrence? Specific deterrence may be an ineffective tool to combat criminal behaviour that is spontaneous or spawned by circumstances such as addictions or necessity. Drug and alcohol addiction as well as need may trigger high rates of recidivism. Experience shows that general deterrence too is of limited effect. Prevention 1 Extracted from Psychiatric Report on Clement lebassiere under the hand of Mr Griffin C Benjamin MO, MPH, MBA, OM dated 9th March 2012 2 Chapter 10:31 of the laws of the Commonwealth of Dominica 3 (1974) 6 Cr. App. R.74 4 ibid S Saint Vincent and the Grenadines Criminal Appeal No.8 of 2003 The goal here is to protect society from those who persist in high rates of criminality. For some offenders, the sound of the shutting iron cell door may have a different effect Some however never lean lessons from their incarcerations and the only way of curbing their criminality is through protracted sentences whose objective is to keep them tJNay from SOCiety. Such sentences are more suitable for repeat offenders. Rehabilitation Here the objective is to engage the prisoner in activities that would assist him in reintegration into society after prison. However the success of this aspect of sentencing is influenced by executive policy. Furthermore, rehabilitation has in the past borne mixed results. Of course sentenCing ought not to be influenced by executive policy such as the availability of structured activities to facilitate reform”. [21]The Court has determined the seriousness of the case at bar having taken into account the following aggravating and mitigating factors: Aggravating Factors: (i) That someone died as a result of the defendanfs actions. That his death was a result of his being struck on the head by a blunt object to wit the pvp pipe, which the defendant has admitted was in his hand; (ii) That the defendant has shown no remorse for his actions and has in fact not taken responsibility for his actions or for the result of his actions; (iii) That the defendant had previous convictions and (iv) His bad reputation in the community Mitigating factors: (i) That the defendant went to the police station after the incident and he turned over the murder weapon to the police (ii) That the defendant apparently cooperated with the police during their investigations in that he gave answers at a Question and Answer Interview and also made a Wrfness statement in which he admitted striking the deceased in the head.

[22]In the case at bar by their verdict it would appear as though the jury in returning the verdict for a reduced offence accepted the defendants defence of provocation. The bench mark period established in the Eastern Caribbean Supreme Court for manslaughter has been recognized to be 15 years6. The benchmark provides guidance to the sentencing judge in an effort at establishing and achieving consistency in sentenCing within the jurisdiction. The Court is however obliged to look at the circumstances of the crime as these differ from case to case.

[23]In The Queen -y-Brian Walers7 Justice Hariprashad Charles discussed the guidelines and principles of sentencing and their application in matters such as the case at bar which the Court has found extremely helpful in its deliberations and applied same herein.

[24]Consideration was given to the following sentences which were handed down in the cases listed: 6 Re: The Queen….;y-Trudy Edwards SlUHCR 56/2003 (Unreported) per Justice Hariprashad-Charles at Page 2 paragraph 7 7 BVIHCR 3/2008 (Unreported) British Virgin Islands (i) The State -y. Peterson Joseph8: The defendant was charged with murder and found guilty of manslaughter and was sentenced to 3 years from the date of sentencing. (ii) The State -y. Olivier Xaviae: The defendant was charged with murder and found guilty of manslaughter and was sentenced to 2years. (iii) The State -y. Gregory John Baptist10 et al was found guilty of Manslaughter and his sentence was reduced to 4 years by the Court of Appeal from an initial sentence of 8 years. (iv) The State -y. Eloi Bethelmie11: He was sentenced to 8years for Manslaughter. (v) The State -v. William Greenaway12: He was sentenced to 5 years in prison suspended for 5 years and a fine of EC$15,OOO to be paid in 180 days. On appeal his sentence was varied to 5 years suspended for 3 years and the High Collt was ordered to conduct a means test to assess the defendants ability to pay the fine. (vi) Frederica Jackson -v-The Queen13 She was sentenced to 15 years having been found guilty of manslaughter and this sentence was reduced to 10 years by the Court of Appeal. (vii) Janice Hamilton -v-The Queen14 After trial she was found guilty of Manslaughter and was sentenced to 15 years which was reduced by the Court of Appeal to 1Oyears.

[25]The actual sentence imposed will depend on the existence and the evaluation of the aggravating factors as well as an evaluative process of the circumstances of the crime to determine the seriousness and culpability of the defendant

[26]The Court is of the view having taking into consideration the mitigating and aggravating factors and the conduct of the defendant that acustodial sentence is necessary.

[27]The statutory mandatory sentence of life imprisonment is based on the guidelines for sentencing in manslaughter cases is reserved only for the most serious manslaughter offences and the case at bar most certainly does not fall into that category.

[28]Although someone died as a result of the actions of the defendant based on the fads established in this case and upon an evaluation of the factors and circumstances of the case a life sentence in this case is completely out of the question since as a punishment it would be completely disproportionate to the gravity of this particular offence

[29]After considering the fads of this case, this Court find that there was acontested trial, a number of aggravating factors which outweighed the mitigating factors, that aweapon was used, the apparent lack of remorse on the part of the defendant the appropriate range of sentence should be somewhere between 8and 14 years. 8 DOMHCR 33/2006 (Unreported) Dominica 9 DOMHCE 17/07 (Unreported) Dominica 10 DOMHCR 19/07 (Unreported) Dominica 11 DOMHCR 28/07 (Unreported) Dominica 12 DOMHCR12/2010 & (Unreported) Dominica 13 St Lucia Criminal Appeal number 6/2001 (Unreported) 14 St Lucia Criminal Appeal number 912002 (Unreported) , .

[30]Having regard to the seriousness of the offence and taking the sentencing guidelines into consideration and factors into account it is this Court’s considered view that the defendant should be sentenced to 12 years commencing the 23 February 2011.

High Court Judge