The Queen v Andrew Milton et al

BRITSH VIRGIN ISLANDS THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. 18 OF 2007 BETWEEN: THE QUEEN and ANDREW MILTON DENNIS CAMPBELL GEORGE O’CONNOR Appearances: Mr. Terrence F. Williams, Director of Public Prosecutions. With him Ms. Tiffany Scatliffe, Senior Crown Counsel and Mr. Valston Graham, Crown Counsel for the Crown Mr. Mario Merritt for the Defendant, George O’Connor ---------------------------------------------------------------------------------------- 2009: October 05, November 19 2009: November 23, 26 ------------------------------------------------------------------------------------------------- JUDGMENT ON SENTENCING (Criminal Law – Conspiracy to murder – section 156 of the Criminal Code, 1997 – powers of the court - aggravating and mitigating factors - principles of sentencing) Introduction

[1]HARIPRASHAD-CHARLES J: On 5th October 2009, the defendant, George O’Connor along with two other defendants, Andrew Milton and Dennis Campbell were convicted by a unanimous jury of conspiracy to murder Kerriann Ebanks pursuant to section 156 of the Criminal Code, 1997. This judgment does not concern Milton and Campbell as they have already been sentenced. A sentencing hearing for Mr. O’Connor was held on 19th November 2009. He is now before me for sentencing.

The facts

[2]The facts of the case have been elaborated in a judgment of this Court delivered on 23rd November 20091. As such, I do not think it is necessary to rehearse those facts in this judgment. In so far as Mr. O’Connor’s role in this conspiracy is concerned, the facts, which the September, 2006, Hubert jury must have accepted are that in the evening of Saturday, 30th McLeod drove O’Connor, Milton and Christopher “Gogo” Bailey to the Terrence Lettsome Airport to collect Campbell who was coming in from Jamaica. Immigration Officer, Walter Maduro processed Campbell and O’Connor came and collected him.

October, 2006, McLeod transported Campbell and Milton to Boxer’s house at

[3]On Tuesday 3rd Baughers Bay where they met Mr. O’Connor. During the course of a conversation, Milton lamented that his sister brought immigration for him. Mr. O’Connor asked Milton what he would do. Milton replied that “he going kill his sister and one of them police boy”. Then Milton asked Mr. O’Connor for the glove and Mr. O’Connor said that the glove is at his house in town. McLeod then drove Campbell and Milton to Mr. O’Connor’s house in town where Milton went and recovered the glove.

[4]In a nutshell, the case for the Crown against Mr. O’Connor is that he was the local facilitator who knew of the plan to murder Kerrian and he facilitated its commission by going to the airport, collecting Campbell and providing the glove.

Plea in mitigation

[5]Mr. Merritt, appearing as Counsel for Mr. O’Connor made his submissions by way of live-video link from Trinidad & Tobago. He urged the court to exercise mercy and leniency on Mr. O’Connor as his role in the conspiracy was a minor one as compared to the other defendants who played more substantial roles. Perhaps, I should pause here to state that the law is that where criminal conspiracies are formed, it may well happen that one or more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan than the others. However, the fact that he is in it (which the jury must have found), it does not matter precisely where his involvement appears on the scale of seriousness or precisely when he became involved, he is guilty as charged. Mr. O’Connor could have dropped out of it before the crime had been fully carried out. But, he remained in it.

[6]I now turn to the other mitigating factors. Learned Counsel implored to court to look at the fact that Mr. O’Connor, aged 23, had never had a positive male influence in his life as his own father introduce him to the use of marijuana at the tender age of nine (9) and he actually witnessed his father consuming the drug on a daily basis. In addition, when he relocated to the BVI in 2000 to live with his mother and step-father, he never bonded with his step-father who showed no affection to him. Eventually, he moved out of the house that his mother and step- father shared.

[7]Mr. Merritt also implored the court to take into consideration Mr. O’Connor’s medical October 2009, Dr. Odebajo stated that conditions. According to the medical report dated 22nd Mr. O’Connor receives treatments for ailments which include upper respiratory tract infection, minor trauma and peptic ulcer disease. Whilst in prison, he was diagnosed with Diabetes Mellitus, a chronic illness which makes him insulin dependent. He has since then been receiving treatment for the Diabetes Mellitus. According to Dr. Odebajo, Mr. O’Connor needs to manage the Diabetes Mellitus by life-style modification, dietary management and pharmacological management.

[8]Presently, Mr. O’Connor is on injectable insulin (Novolin 70/30). He takes 20 units of insulin subcutaneously every day: 10 units in the morning and 10 units in the evening. Since being on October 2006, he was admitted to Peebles Hospital on two (2) occasions. The remand on 10th first was when he had Hypoglycemic Coma and then for Epididymo-orchitis. He was treated and discharged. His medical condition is described as “stable.”

[9]Although Mr. O’Connor has had previous convictions, Mr. Merritt urged that the court should not take them into account because they are minor and not of a similar nature. The record reveals that Mr. O’Connor has been before the Magistrate Court on five prior occasions since May 2004. On four of those occasions, he was sentenced for possession of cannabis and on one occasion, he was sentenced to a term of imprisonment.

Pre-sentence Report

[10]A pre-sentence report was requested from the Social Development Department. The report is comprehensive and I am grateful to that department for their unrelenting support. The report reveals that Mr. O’Connor was last employed prior to his incarceration in 2007, on a construction site of Dr. Hubert O’Neal situated in Butu Mountain. He worked in various menial capacities such as labourer, handyman and deck hand.

[11]With respect to his educational background, Mr. O’Connor attended the Hayes All Age School in Clarendon, Jamaica. His progress in this school system was measured according to his chronological age and so he never repeated any class. He then went to Penwood High School, also in Jamaica. His academic performance was characterized as “good” and there were never any reports about Mr. O’Connor exhibiting “bad behavior”. He remained at Penwood High School until 2000 when he relocated to the BVI. He was in Form II. He never completed his secondary education.

Conspiracy to murder

[12]Mr. O’Connor along with Milton and Campbell were convicted by a unanimous jury of October 2006. Milton and conspiracy to murder Kerriann between 30th September 2006 and 3rd Campbell have been sentenced to 10 years imprisonment for this offence which will run concurrently with the other sentences they are serving.

[13]Section 156 of the Criminal Code, 1997 provides: “Any person who conspires with any other person or solicits, encourages, persuades, endeavors to persuade, or proposes to any other person, to murder any person, whether such person is within the Territory or elsewhere, commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.”

[14]In England, conspiracy to murder carries a maximum sentence of life imprisonment2.The maximum sentence which our court can impose is 14 years. However, the court has a wide discretion in sentencing both at common law and under the laws of this Territory3 to enable it to do justice having regard to the particular facts of each case.

[15]There is a dearth of case law on conspiracy to murder in our jurisdiction so I turn to English law concerns an appeal concerning a failed terrorist plan for guidance. The case of R v Barot4 which was thwarted by security officials. In this case, the Court of Appeal set down some guidance with respect to conspiracy to commit murder. The Court advised that the facts of each case determine what is a suitable sentence, but it must also be borne in mind the following: 1. Seriousness of the offence, 2. Detail of planning involved, 3. Whether the conspiracy would have been put into practice.

[16]Conspiracy to murder is a very serious offence and as such, calls for an immediate custodial sentence. However, the decision as to the length of such sentence is heavily dependent on the aggravating and mitigating features and, usually to a lesser extent, the personal circumstances of the offender.

[17]In the present case, the conspiracy to kill Kerriann was put into effect and sadly, it resulted in the death of Dorcas Elizabeth Rhule also known as Louise. The other aggravating factors are (1) the seriousness of the offence and (2) the detailed planning that was involved.

[18]The most significant mitigating circumstances are Mr. O’Connor’s health and the assistance that he has been giving to the Prison Authorities since he has been remanded there. The Superintendent of Prisons wrote a letter on behalf of Mr. O’Connor commending him for his prompt response after discovering that another inmate had attempted to commit suicide by cutting his right wrist with a disposable razor. Superintendent McMaster opined that by alerting the officers at the prison, they were able to avoid disaster.

[19]I also bear in mind the main objectives of criminal sanction: retribution, deterrence, prevention and rehabilitation. Mr. O’Connor has committed an extremely grave offence and he needs to be punished accordingly. A strong message also has to be sent out that crime has no place in this Territory and those who commit crimes will receive the full brunt of the law.

The sentence

[20]Taking all matters into consideration, the sentence of this court is that you, GEORGE O’CONNOR are sentenced to 6 years imprisonment. The sentence will commence from 5th October 2009.

Indra Hariprashad-Charles

High Court Judge

BRITSH VIRGIN ISLANDS THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. 18 OF 2007 BETWEEN: THE QUEEN -andANDREW MILTON DENNIS CAMPBELL GEORGE O’CONNOR Appearances: Mr. Terrence F. Williams, Director of Public Prosecutions. With him are Ms. Tiffany R. Scatliffe, Senior Crown Counsel and Mr. Valston Graham, Crown Counsel for the Crown Mr. Dwight Reece for the Defendant, Andrew Milton Mr. Hayden St. Clair Douglas and Mr. Patrick Thompson for the Defendant, Dennis Campbell ———————————————————————— 2009: October 05, 2009: October 06, November 23, ——————————————————————————- JUDGMENT ON SENTENCING (Criminal Law – murder –mandatory life imprisonment –sections 150 and 23 of the Criminal Code, 1997 section 9(2) of the Parole Act, 2009 – setting of minimum term before consideration of eligibility for parole – choice of three starting points: “whole life”, 30 years or 15 years – general considerations- seriousness of the offence – aggravating and mitigating factors –announcement of minimum term in open court) Introduction

[1]HARIPRASHAD-CHARLES J: In R. v David Swain1 BVI High Court Criminal Case No. 17 of 2009 –judgment delivered On 10 th November 2009, [unreported]. , I stated that the law regarding the sentencing of persons convicted of murder has undergone some major changes since May of 2 this year when select sections of the Parole Act, 2009 (“the Act”) came into force . Prior to the enactment of This legislation, every person convicted of murder was automatically visited with the penalty of life imprisonment . No consideration whatsoever was given to any mitigating factors that the convicted person desired or was able to put forward. In fact, the trial judge was duty-bound to hand down the mandatory sentence of life imprisonment in every case where there was a conviction of murder.

[2]The Act contains provisions of great importance to the sentencing of offenders sentenced to life imprisonment for murder. The Act does not affect the fact that the mandatory sentence for murder remains life imprisonment. It transferred the role of the Executive in determining the minimum term to the trial judge. As a result, a judge upon sentencing a person to imprisonment for life is now required to state whether such person may be eligible to be considered for parole and if such person is found to be so eligible, to state a minimum period of imprisonment that such person shall serve before being considered for parole for the first time .

[4]Following the unanimous verdict of guilty of murder against the two defendants, Andrew Milton and Dennis Campbell the court embarked on a sentencing hearing on 6 th October 2009 to determine the defendants’ eligibility for parole and to state the minimum period of imprisonment that they should serve before being considered for parole. The facts

[3]Another provision of great significance in the Act is that although the offender may be released on licence, and the minimum period affects the date on which this may happen, the offender remains at risk of being returned to prison for the rest of his life .

[7]Later that same evening, McLeod drove Milton, George O’Connor and Christopher “Gogo” Bailey to the Terrence Lettsome Airport to collect Dennis Campbell also known as “Soupy” who was coming in from Jamaica. Immigration Officer, Walter Maduro processed Campbell and O’Connor came and collected him. Milton referred to Campbell as the “Magic Man”. In the vehicle, Milton stated that he wanted Campbell to kill his sister, Kerriann and help him to break his brother and uncle out of prison. Campbell told Milton that as it was family business he had to handle that for himself. That same night, O’Connor showed a black 45 caliber gun to Campbell.

[5]The facts of the case as outlined by the Crown and which the jury must have accepted are as follows: in August 2006, Milton came to the British Virgin Islands (“the BVI”) and stayed with his sister, Kerriann Ebanks at the Keturah Crabbe Apartments at Little Dix Hill, East End. At the time, Kerriann was sharing her apartment with her friend of 10 years, Dorcas Elizabeth Rhule the Governor has proclaimed that select sections of the Act namely 1, 2, 4(5), 9, 23, 29 and 30 of the Parole Act, 2009, No. 7 of 2009 shall come into force on 20 th May 2009. See sections 150 and 23 of the Criminal Code 1997 (Act No. 1 of 1997) of the Laws of the Virgin Islands. See section 9(2) of the Parole Act, 2009. See sections 14(b) and 15. However, they are not yet in force.3 also called Louise. Shortly after his arrival into the Territory, Milton requested of his sister to go to Her Majesty’s Prison to visit their brother, Mirouts, also known as Kirk who was an inmate there. Whilst at the prison, an altercation ensued between Kerriann and their uncle, Philemon Miller, also an inmate at the prison. on the advice of a prison guard, Kerriann left the prison and waited in her car while Milton stayed and completed his visit. when Milton returned to Kerriann’s car he was quiet and he turned the radio up. Shortly after, Milton paid another visit to the prison. Kerriann then went to Jamaica for two weeks. Upon her return, she was told that Milton threatened her life as he felt that she was responsible for their uncle and brother being in prison. As a result, Kerriann asked Milton to move out of her apartment. With the assistance of Hubert McLeod, Milton moved out. of Kerriann’s apartment to Desmond Alphonso’s (“DA”) house at Kingston taking with him some cushions from a sofa chair on Kerriann’s balcony.

[6]In the afternoon of Saturday, 30 th September 2006, Milton, driven by McLeod, went to Kerriann’s apartment to collect some things he had left behind. An argument ensued between Milton and Kerriann. Milton threatened to kill her. It ended by Kerriann asking Louise to throw her keys and she drove off to the East End Police Station.

[8]on Tuesday, 3 rd October 2006, Kerriann took her Ford Explorer to Tola Motors for The technician to take a look at it as she was experiencing some mechanical problems. The technician and her went on a brief test drive and ended up by DA’s house where Milton, Campbell and Bailey were working illegally. Kerriann asked the technician to stop and she threatened the men that she was sending Immigration for them.4

[9]Later that same afternoon, McLeod transported Campbell and Milton to Boxer’s house at Baughers Bay where they met O’Connor. The men ate. Milton stated that his sister brought immigration for him. O’Connor inquired of Milton what he would do. Milton replied that “he going to kill his sister and one of them police boy”. Then Milton asked O’Connor for the glove and O’Connor told him that the glove is at his house in town. McLeod drove Milton and Campbell to O’Connor’s house in town and Milton went and got the glove. Campbell took some latex gloves that McLeod had on the back seat of his car. They then went back to Boxer’s house at Baughers Bay where they got some duct tape. Shortly after, McLeod drove Milton and Campbell to Dale’s house at East End where Bailey, armed with a firearm, was picked up. McLeod dropped Milton, Campbell and Bailey by a church close to Kerriann’s apartment.

[13]After the incident, Milton, Campbell and Bailey hid out in the bushes and in an abandoned house in the Fish Bay area for about a month. In a nationwide hunt, the men were spotted by the police from a helicopter. Milton and Campbell were later intercepted. At the time of their capture, Campbell had in his possession a firearm and 5 live-rounds of ammunition.

[10]In the evening Kerriann came home from work. Before going to her apartment, she called out to Louise who gave her A faint response. Upon approaching her door, Kerriann heard her phone ringing and realized that Louise was not answering it, quite untypical of Louise. She found The door unlocked and was quarreling to herself that she had told Louise to keep The door locked at all times because of the threat from her brother to kill her. Unsuspectingly, she stepped inside to look on the dining table to see if the key was there. The key was not there so she was still looking for it in her handbag. When she looked up, she saw her brother Milton with a gun pointed at her. She wanted to run but her legs became heavy. She couldn’t move. as she was there contemplating whether to go down on her knees and beg her brother not to kill her, she saw someone else run past her. She “pivoted” and jumped over the steps. She landed to the bottom. She hit her head and got up and started to run again. As she ran, she was shouting “murder, murder” and ended up at a neighbour’s apartment. She stayed there until the police arrived.

[11]John Shirley, a neighbour was home at this time. He heard a scream and looked out and saw a man whom he described as being lighter than him on the stairs. He went in His apartment and called 911. Simone Syfox Foster, who lives directly below Kerriann’s apartment heard when Kerriann called out to Louise. She also heard a loud sound as if something fell in her apartment.

[16]Learned Counsel Mr. Douglas appearing for Campbell submitted that Campbell has spent most of his time in prison since his arrival in the BVI. He said that Campbell is a young man, 26 years of age. He urged the Court to temper justice with mercy and compassion. Submissions by the Crown

[12]While speaking to the 911 operator, John Shirley got a spotlight and shone it on Kerriann’s car when he realized that someone was trying to get into it. He saw three men who then walked 5 away hastily towards the garbage receptacle. John Shirley shone the light to get the attention of the garbage truck. It was at that stage that he realized that there was a body on the ground. The body was subsequently identified as Louise.

[14]On 5 th October 2009, the jury returned a unanimous verdict of guilty of murder against Milton and Campbell for the death of Louise. The jury also returned a unanimous verdict of guilty of conspiracy to murder Kerriann against both defendants and another defendant, George O’Connor. this judgment is concerned only with the sentencing of Milton and Campbell. Plea in mitigation Milton

[15]in his fervent plea in mitigation, Mr. Reece, appearing for The defendant, Milton urged the Court to be lenient and considerate even though Milton said that he wished not to be considered for parole. Learned Counsel implored The Court not to impose consecutive terms of imprisonment for the two offences and to consider 25 years as the appropriate starting point in this case. Counsel was however unable to provide any authority to substantiate the latter submission. Campbell

[17]the Learned DPP helpfully identified the aggravating factors as well as the mitigating factors in the present case. The aggravating factors are (i) there was planning between the men which showed some degree of premeditation, (ii) there was use of a firearm in the offence While it was not fired, it was present at the scene,6 (iii) the method by which Louise was killed is disturbing and shows some sadistic intent, (iv) the defendants have previous convictions.

[18]No mitigating features were identified. The Powers of the Court (a) the Criminal Code, 1997

[19]Section 150 of the criminal Code provides that any person who is convicted of murder is liable to imprisonment for life. Section 23 states: A person liable to imprisonment for life or any other period may be sentenced to a shorter term, except in the case of a sentence passed in pursuance of section 150. (b) the Parole Act, 2009

[25]Section 10 lists The aggravating factors that may be relevant to the offence of murder to include- (a) “a significant degree of planning or premeditation, (b) the fact that the victim was particularly vulnerable because of age or disability, (c) mental or physical suffering inflicted on the victim before death, (d) the abuse of a position of trust , (e) the use of duress or threats against another person to facilitate the commission of the offence, (f) the fact that the victim was providing a public service or performing a public duty, and (g) concealment, destruction or dismemberment of the body.

[20]Section 9(2) of the Act reads: “A judge upon sentencing a person to imprisonment for life, shall state whether such person may be eligible to be considered for parole and, if a person is found to be so eligible, state a minimum period of imprisonment. that such person shall serve before being considered for parole for The first time”. Mandatory Life Sentences [U.K.]

[27]The Act is a novel piece of legislation modeled after the CJA, 2003 [U.K.]. It is, in this context, that UK case law is very instructive in giving guidance in determining the minimum term. The case of The Consolidated Criminal Practice Direction (Amendment No. 8) (Mandatory Life Sentences) UK Case Law sets out the procedure that the Court should follow in setting minimum terms in murder cases. The Court must consider the seriousness of the offence and explain Schedule 21 of the CJA, 2003. In very serious cases where there are a number of aggravating factors as set out in section 10 of Sch. 21, a minimum term of 30 years is appropriate.

[28]In R v. Sullivan; R v Gibbs; R v Elener; R v Elener [2004] 7 , the Court of Appeal heard four conjoined appeals which raised questions as to the correct approach to be adopted by sentencing courts when applying the provisions of the CJA, 2003 in order to set minimum tariff periods. The recommended tariff for very serious murders was 30 years and 14 years for average murders.

[21]Section 269 of the Criminal Justice Act, 2003 (“the CJA, 2003”) provides for the (1) “This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law. determination of a minimum term in relation to mandatory life sentence. (2) …. (3) The part of his sentence is to be such as the court considers appropriate a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and taking into account – b) …. (4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under 7 subsection (2), the court must order that the early release provisions are not to apply to the offender.”

[22]Schedule 21 of the CJA, 2003 provides for appropriate starting points depending on Starting points the seriousness of the offence. 4 (1) If— (a) the court considers that the seriousness of the offence (or the combination of (b) the offence and one or more offences associated with it) is exceptionally high, and the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.[emphasis added] (2) Cases that would normally fall within sub-paragraph (1)(a) include— (a) the murder of two or more persons, where each murder involves any of the following— (i) a substantial degree of premeditation or planning, (ii) the abduction of the victim, or (iii) sexual or sadistic conduct, (b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation, (c) a murder done for the purpose of advancing a political, religious or ideological cause, or (d) a murder by an offender previously convicted of murder.

[23]5 (1) If— (a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and (b) the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years.[emphasis added] (2) Cases that (if not falling within paragraph 4(1)) would normally fall within subparagraph (1)(a) include—8 (a) the murder of a police officer or prison officer in the course of his duty, (b) a murder involving the use of a firearm or explosive, (c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death), (d) a murder intended to obstruct or interfere with the course of justice, (e) a murder involving sexual or sadistic conduct, (f) the murder of two or more persons, (g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or (h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.

[24]Paragraphs 8–11 of the Schedule read aggravating and mitigating factors. Paragraph 8 states that having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of the starting point. Aggravating and mitigating factors

[26]Mitigating factors that may be relevant for the offence of murder include (a) an intention to cause serious bodily harm rather than to kill, -9 (b) lack of premeditation, (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957) lowered his degree of culpability, (d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation, (e) the fact that the offender acted to any extent in self defence, (f) a belief by the offender that the murder was an act of mercy, and (g) the age of the offender”.

[29]In R v. Ennis [2005] 1 Cr. App. R. 8. , Mr. Ennis appealed his minimum term of 30 years on the basis that it was manifestly excessive. The Court found that it was a premeditated robbery, where firearms were used and which resulted in a death. The trial judge found that there were no mitigating circumstances. The appellate judge found that the trial judge did not take the mitigating factors [2004] EWCA Crim 1762; [2005] 1 Cr. App. R. (S) 67. [2008] EWCA Crim. 96910 of Sch. 21 of the CJA, 2003 into consideration, such as the lack of intention to kill and lack of premeditation in respect of the murder. The 30 year sentence was reduced to 25 years with time spent on remand deducted from same.

[30]The case of R v. Neil Jones and others is the most recent guidance handed by the Court of Appeal concerning the determination of a minimum sentence. The Court stated that while judges should be mindful of the guidance provided, each case would depend on its particular facts. As it relates to imposing one of the three starting points the following should be considered: “A whole life order should be imposed where the seriousness of the offending was so exceptionally high that just punishment required the offender to be kept in prison for the rest of his or her life. Where such an order was called for, the case would often not be on the borderline. The facts of the case considered as a whole would leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. If the judge was in doubt, this might well be an indication that a finite minimum term which left open the possibility that the offender might be released for the final years of his or her life was the appropriate disposal. To be imprisoned for a finite period of 30 years or more was a very severe penalty. If the case included one or more of the factors set out in para.4(2) , it was likely to be a case that called for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term which left open the possibility that the offender might be released for the final years of his or her life was the appropriate disposal”. BVI Case Law

[31]In R v Aaron George , the defendant pleaded guilty to the murder of Vincent Connolly. The defendant gave a statement to the police implicating the person he alleged contracted him to kill the victim11 . The victim was found outside his home dead with five gunshot wounds. The defendant was sentenced to life imprisonment with a possibility of parole after serving 22 years.

[32]In R v. David Swain12 [2006] 2 Cr. App. Rep (S) 19 , the defendant, aged 53, was convicted by a unanimous jury of the murder of his wife. The murder was carefully planned and premeditated. It came on the last BVI Criminal Case No. 21 of 2008. Oral judgment delivered on 23 rd June 2009. It is to be noted that at the subsequent trial of the person whom he alleged contracted him to kill, the defendant who was the key witness for the prosecution said that he lied to the police as to that person’s involvement because he wanted to get a lesser sentence and to appease his friends. BVI Criminal Case No. 17 of 2009. Sentencing Judgment delivered on 10 th November 2009 [unreported].11 day of their vacation. It was done for financial gain and a desire for Mr. Swain to fully pursue a love affair which he had begun prior to his wife’s unfortunate and untimely death. He was sentenced to life imprisonment with a possibility of parole after serving 25 years less time spent on remand. Court’s considerations

[33]This was a cold-blooded murder. The defendants went to Kerriann’s apartment to kill her. Fortunately, she managed to escape and sought refuge at a neighbour’s apartment. Her roommate, Louise, an innocent bystander was strangled and thrown over a four-storey building. The murder was premeditated and carefully planned. The “magic man” Campbell was recruited from Jamaica to execute Milton’s plan to kill his own sister. Louise was brutally murdered during the course of a planned murder.

[34]In light of the above authorities and a review of the circumstances, this case falls within the exceptionally high category, as set out in Sch. 21 of the CJA, 2003. The appropriate starting point is 30 years in view of the fact that the defendants went to Kerriann’s apartment armed with a firearm. In Neil Jones , the court held that where a firearm was carried for the purpose of being used as an offensive weapon, it is hard to envisage a reason for not following the guidance in Sch. 21 of the CJA, 2003 and adopting 30 years as a starting point.

[35]Having determined the starting point, the court may either increase the minimum term or reduce the minimum term depending upon whether there are aggravating or mitigating features other than those which have determined the seriousness of the conduct. In this case, there are no mitigating factors. The Crown has identified four aggravating features but as I just stated, the court has to be mindful not to apply any of those factors a second time around in making any adjustment. To my mind, there are three aggravating features namely: (1) a significant degree of planning and premeditation was involved; (2) the method by which Louise was killed is disturbing and shows some sadistic intent and (3) both men have previous criminal convictions. On 4 th November 2008, Milton was sentenced to 3 years imprisonment for handling stolen goods. Campbell has three previous convictions. On 22 nd [supra] November 2008, he was sentenced by the Magistrate to 3 ½ years imprisonment for carrying an unlicensed firearm 12 and 6 months for possession of 5 rounds of explosives, both terms to run consecutively. On 4 th November 2008, Campbell was also sentenced to 5 years imprisonment for burglary.

[36]As I already indicated, each case would depend critically on its particular facts. In this case, the facts are particularly grave. This is a case where the defendant, Milton was the instigator of this ghastly plan to kill his own sister because he felt that she was a police informer and she was responsible for his brother, Kirk and uncle being in prison. He brought in Campbell to execute this dreadful plan. Kerriann narrowly escaped her death. Before the defendants made good their escape, they had to wipe out all evidence so they strangled Louise, rendering her unconscious or dead before throwing her over the balcony. From the evidence, it was revealed that Louise, aged 39, left behind, in Jamaica, two young children. She came to the BVI to work and was employed as a dishwasher at a restaurant at East End. She was at home that day because it was her day off.

[37]The defendant, Milton has shown no compunction for his actions as he still maintains his innocence. The defendant, Campbell was quiet and impassive throughout the trial. CONSPIRACY TO MURDER

[38]The defendants, Milton, Campbell and O’Connor were convicted by a unanimous jury of conspiracy to murder Kerriann Ebanks between 30 th September 2006 and 3 rd October 2006. The sentencing of O’Connor was dealt with separately and does not concern this judgment.

[39]Section 156 of the Criminal Code, 1997 provides: “Any person who conspires with any other person or solicits, encourages, persuades, endeavors to persuade, or proposes to any other person, to murder any person, whether such person is within the Territory or elsewhere, commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.”

[40]In England, conspiracy to murder carries a maximum sentence of life imprisonment See s. 3(2) of the Criminal Justice Act, 1977. .The maximum sentence which our court can impose is 14 years. However, the court has a wide discretion in sentencing both at common law and under the laws of this Territory (see sections 22 and 23 of the Criminal Code) to enable it to do justice having regard to the particular facts of each case.13

[41]In the absence of case law on conspiracy to murder in our jurisdiction, I turn to English law for guidance. The case of R v Barot

1.Seriousness of the offence, concerns an appeal concerning a failed terrorist plan which was thwarted by security officials. The Court of Appeal set down some guidance with respect to conspiracy to commit murder. The Court advised that the facts of each case determine what is a suitable sentence, but it must also be borne in mind the following:

2.Detail of planning involved,

3.Whether the conspiracy would have been put into practice.

[42]It cannot be doubted that this is an extremely serious offence and call for an immediate custodial sentence. But, the decision as to the length of such sentence is heavily dependent on the aggravating and mitigating features and, usually to a lesser extent, the personal circumstances of the offender. The aggravating features of this case have already been identified. There are no particular factors which mitigate the offence.

[43]In the present case, the conspiracy to kill Kerriann was put into effect and it resulted in the death of Louise. Detailed planning was involved as Campbell was specially recruited from Jamaica to kill Kerriann.

[44]I have also taken into consideration all that was said by the defendants in mitigation including their antecedents. I have also noted that the defendants had been on remand for two years from November 2006 to November 2008 for these offences. From November last year, both defendants have been serving sentences of varying lengths for various offences. In this regard, due credit must be allowed to the defendants for the two years spent on remand awaiting trial.

[45]I also bear in mind the main objectives of criminal sanction: retribution, deterrence, prevention and rehabilitation. The sentences

[46]Taking all matters into consideration, the following are the sentences of this court: [2007] EWCA Crim. 1119.14 Murder: Imprisonment for life with a minimum period for parole eligibility of 35 years. MILTON: Conspiracy to murder: 10 years imprisonment. These sentences are to be served concurrently with the other sentence (3 years for handling stolen goods) that Milton is now serving. CAMPBELL Murder: Imprisonment for life with a minimum period for parole eligibility of 35 years. : Conspiracy to murder: 10 years imprisonment. These sentences are to be served concurrently with the other sentences (9 years altogether) that Campbell is now serving . Indra Hariprashad-Charles High Court Judge See details of these sentences at paragraph 35.