THE QUEEN v DESMOND ALPHONSO

BRITISH VIRGIN ISLANDS IN THE HIGH COURT OF JUSTICE BVIHCV2006/0130 BETWEEN: DENROY BAPTISTE Claimant AND TORTOLA YACHT SERVICES LIMITED Defendant Appearances: John Carrington of Todman & Co. for the Claimant Tana’ania Small-Davis of Farara Kerins for the Defendant _______________________________________ 2008: January 29th, April 24th, 28th and May 28th _______________________________________ JUDGMENT (Personal injuries – compensation – 42 year old man involved in accident at work – injury to back and shoulder, degenerative disc disease- quantum of general damages Practice and Procedure – ‘without prejudice’ correspondence exchanged between claimant’s counsel and defendant’s insurers – whether defendant entitled to rely on such correspondence at trial to support allegations that claim had been settled – principles governing use of ‘without prejudice’ communications Contract – whether ‘without prejudice’ correspondence evidence a settlement agreement)

[1]Joseph-Olivetti, J.: This is a claim for damages for personal injuries arising from an accident in the work place. On 29th May 2000 Mr. Denroy Baptiste was employed as a painter with the Defendant, Tortola Yacht Services Ltd (“TYS”) at Wickhams Cay. He suffered injuries when a rope on which he had been pulling on to assist in lifting a boat out of the water broke and he was thrown into the water on his back. He is now seeking compensation for his injuries. In defence, TYS says first that the claim was settled prior to suit or alternatively that they are not liable and/or that Mr. Baptiste contributed to his accident.

[2]I now turn to the first and primary issue raised by TYS which is whether or not the claim had been settled. TYS sought to rely on two letters to establish a settlement agreement. Issue was taken at trial as to the admissibility of these documents on the basis that they were made ‘without prejudice’ and perforce were inadmissible.

[3]However, Mr. Carrington’s objections could not withstand the formidable torrent of authorities1 relied on by Mrs. Small-Davis. This was to the effect that “without prejudice” communications could be relied on to establish a concluded agreement arising therefrom or for the purpose of deciding whether such an agreement had indeed been reached and the letters were admitted. For completion and as the admission of the letters was crucial to the defence I will visit the main authorities on which I based my decision to admit the letters.

[4]The principal case is Tomlin v. Standard Telephones & Cables Ltd.2 where Danckwerts L.J. said referring to dicta of Lindley L.J. in Walker v. Wilsher (1889) 23 Q.B.D. 335:- “In the course of his judgment, however, Lindley L.J. said, at p. 337: “What is the meaning of the words “without prejudice”? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.” That statement of Lindley L.J. is of great authority and seems to me to apply exactly to the present case if, in fact, there was a binding agreement, or an agreement intended to be binding, reached between the parties, and, accordingly, it seems to me that not only was the court entitled to look at the letters, though they were described as “without 1 Tomlin v Standard Telephones and Cables Ltd [1969] 1 W.L.R. 1378 Walker v Wilsher (1889)LR 23 Q.B.D. 335 Rush & Tompkins ltd v Greater London Council and Another [1989] A.C. 1280 South Shropshire District Council v Amos [1986] 1 W.L.R. 1271 Unilever Plc. V The Procter & Gamble Co. [2000] 1 W.L.R. 2436 prejudice,” but it is quite possible (and, in fact, the intention of the parties was) that there was a binding agreement contained in that correspondence. This disposes of the first point.”… From those cases it seems to me that the principle which emerges is that the court will protect, and ought to protect, so far as it can, in the public interest, “without prejudice” negotiations because they are very helpful to the disposal of claims without the necessity for litigating in court, and therefore, nothing should be done to make more difficult or more hazardous negotiations under the umbrella of “without prejudice.” I am well aware, coming form the Division from which I do come that letters get headed “without prejudice” in the most absurd circumstances, but these letters, in my judgment, are not letters headed “Without prejudice” unnecessarily or meaninglessly. They are plainly “without prejudice” letters, and therefore, the court, in my judgment, should be very slow to lift the umbrella of “without prejudice” unless the case is absolutely plain.”

[5]And, see also Halsbury’s Laws of England Vol. 17 at page 152:- “213. Limits of the rule. The contents of a communication made “without prejudice” are admissible when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached, and the fact that such communications have been made (though not their contents) is admissible to show that negotiations have taken place, but they are not otherwise admissible. Thus they cannot be used as admissions, or as acknowledgements to prevent a debt from coming statute- barred, or, normally, for the purpose of deciding the question of costs, or to show malice, although it has been held that they may be admitted to prove matters not connected with the merits of the dispute. The consent of both parties to the dispute is required for the privilege to be waived, even if there has been only one communication.” (Emphasis added)

[6]Save with one exception I accept the evidence of Mr. Graham Wickens, the Adjuster for TYS ‘ insurance company, Royal and Alliance Insurance (Puerto Rico) Inc. as to the circumstances in which these letters were written. That is, that the first letter dated 19th November 2001 from Mr. Baptiste’s solicitors, McW Todman & Co. was in response to a letter of 2nd February 2001 from Caribbean Adjusters Ltd (this letter was not produced) and that the second dated 11th October 2005 from McW Todman & Co to Caribbean Insurers Ltd was a follow up to a telephone conversation between the writer, Ms. Melanie Williams of Mc W. Todman & Co. and not Mr. Wickens as he testified but to the addressee, Ms. Bernadine Thomas (of Caribbean Insurers Ltd).had it been otherwise in my view it would not have been addressed specifically to her.

[7]The first letter, admitted as “GW 1” is written by Mr. Hayden St. Clair Douglas. The letter on its face is a quantification of the claim for loss and damage suffered by Mr. Baptiste as a result of the said accident. It set out the background to the claim and detailed the injuries sustained and made reference to various cases.3 Finally, Mr. St. Clair Douglas claimed:- “$12,000.00 as general damages $ 5,500.00 cost of reconstructive surgery $ 1,653.80 special damages $ 2,798.07 costs $21,951.87”

[8]The letter of 11th October 2005 (four years later) admitted as “GW 2” is brief and is set out hereunder in full:- “Further to our telephone conversation of 6 October, I confirm that my client has instructed us that he is now prepared to accept your offer to settle this matter, by paying the sum of $20,422.80, inclusive of legal costs. I also confirm that our client has not received any payments form his former employers for the injuries which he sustained as a result of their negligence and failure to provide a proper work environment. We look forward to the receipt of your further correspondence in relation to this matter.” 3 Mr. Douglas also submitted several medical reports. However, in the margin of the letter there is a note

[9]Can these letters be said to amount to a binding contract or evidence of settlement without more? First, I note the length of time which has elapsed between the two letters. Next I see that one was sent to Caribbean Adjusters Limited and the other to Caribbean Insurers Limited. No explanation has been given by TYS as to whether or not the addressees are in fact the same entity, but in all the circumstances it seems so. The second letter bears no reference to the first and specifically the figures are different though not significantly so. It refers to a telephone conversation of 6th October with the addressee. Mr. Wickens in his witness statement said that he spoke to Ms. Williams on the 6th October 2005 and she told him that her client had agreed to accept the sum of $29,422.80 inclusive of costs and that she wrote to that effect on the 11th October 2005. Did he make this offer to her prior to 6th October so that she had her client’s instructions when she spoke to him on the 6th October? And, if he made the offer why did she not direct her confirmatory letter to him? It also raises the question whether that sum was to be in full and final settlement of the entire claim. I find that the offer was made prior to the second letter, not by Mr. Wickens but by Ms. Thomas.

[10]Furthermore, the second paragraph raises the clear inference that this offer was in some way conditional upon whether Mr. Baptiste had received any payments from his employer for his injuries and if so how was that to be dealt with. And, the last sentence of the letter clearly anticipated further correspondence between the parties. We have seen none.

[11]Mr. Wickens explained that they had discussed whether Mr. Baptiste had received any payments from his employer as that would have impacted on his offer. He testified that he subsequently learnt that Mr. Baptiste had been paid the difference between his wages and what he received from Social Security in respect of his earnings and that the intention of the parties was to set off those sums paid by the employer from the sum of $20,422.80 agreed on. Based on that he made no payments to Mr. Baptiste as Mr. Baptiste had already received more than $20,422.80 from TYS. Yet, Mr. Wickens did not see fit to correspond with McW Todman to explain this course of action and to obtain McW Todman’s confirmation that they accepted that full and final payment on behalf of their client had been made by way of this set off.

[12]Further, Mr. Baptiste did not sign the usual release which Mr. Wickens referred to in para 8 of his witness statement as a formal agreement to settle the matter. The accepted practice, of which we can take judicial notice, is that if an insurer settles a claim, on payment it requires the payee to sign a release acknowledging payment in full and final satisfaction of the claim.

[13]The only reasonable conclusion that can be drawn from the correspondence and the evidence of Mr. Wickens is that no final and binding agreement was concluded between Mr. Wicken’s company on behalf of TYS and Mr. Baptiste’s solicitors on behalf of Mr. Baptiste. What is more TYS cannot rely on payments made on account of loss of wages prior to Ms. Williams accepting the offer of settlement in satisfaction of the offer unless that had been specifically agreed. Curiously if that were so It would also mean that Mr. Baptiste would only receive damages for loss of wages and no compensation for his injuries .On the evidence I cannot find that this was so agreed. I accept that Mr. Baptiste received payments from Social Security in respect of his loss of earnings and that TYS made up the difference by paying him $21,854.83. I note too that he has only claimed loss of earnings from March 2006 to the filing of the claim.4

[14]I now turn to the issue of liability. I note that TYS in its written submissions conceded liability and in my view rightly so having regard to the evidence. I therefore find that TYS was wholly liable for the accident. Now to the issue of damages.

Legal Principles - Assessment of General Damages

[15]The legal principles governing the assessment of damages are well established and the locus classicus on this is Cornilliac v St. Louis5, a case from the Trinidad and Tobago Court of Appeal which has been followed in this jurisdiction. See Alphonso and Others v Deodat Ramnath.6 In that case, Sir Hugh Wooding CJ listed the main factors to be taken into account in assessing general damages for personal injuries as (i) the nature and extent of the injuries sustained; (ii) the nature and gravity of the resulting physical disability; (iii) the pain and suffering endured; (iv) the loss of amenities; and (v) the impact on the claimant’s pecuniary prospects The Nature and Extent of the Injuries Sustained

[16]Mr. Baptiste was born on 8th November 1965. He was 35 at the date of injury and is now 42 years old. Prior to the accident he worked as a boat painter but has been unable to continue in this line of work as a result of the injuries he sustained in the accident. He has since found sporadic employment as a driver and a handyman.

[17]Mr. Baptiste first visited Peebles Hospital for dislocation to his shoulder He was treated by the emergency room doctor and discharged. However, as a result of continuing symptoms he was subsequently referred to several other doctors including Dr. Davies at Peebles Hospital, Dr. Hugo Caesar, an orthopaedic surgeon in St. Thomas and Dr. James Nelson for neurological evaluation.

[18]Dr. Caesar attended the trial and gave oral evidence as to the nature and extent of Mr. Baptiste injuries. Counsel for TYS made valiant efforts to establish that there was no causal connection between the degenerative disc disease suffered by Mr. Baptiste and the injuries sustained in the accident in that Mr. Baptiste was described as ‘obese’ and Dr. Caesar had agreed that the degenerative disc disease happens for the most part in everyone due to age. However, I accept the doctor’s evidence that Mr. Baptiste had no history of degenerative disc disease and that in this case the accident was the cause of all his injuries. I therefore find that the injuries he suffered which were detailed in Dr. Caesar’s report are as follows:- (i) Temporary loss of feeling and ability to move his right arm immediately after the accident, (ii)Hills Sachs lesion to right humeral head, (iii) Labral tear in right shoulder, (iv) Continuous pain in right shoulder and back, (v) Radicular syndrome involving radicular pain, paresthesias and/or weakness in both upper extremities and left lower extremity, (vi) Dorsal and lumbosacral strain and sprain, (vii) Compression fracture of T12 and mild compression fracture of L1 discs, (viii) Bulging and/or herniated discs at levels C4-5; C5-6; C6-7; L4-5 and L5-S, (ix) Multiple levels of cervical and lumbar spinal stenosis, (x) Traction injury to brachial plexus on the right, (xi) Right index finger spasm and (xii) Bicipital tendonitis. The Nature and Gravity of the Resulting Physical Disability

[19]Dr. Caesar’s prognosis is that Mr. Baptiste’s condition will deteriorate in the future due to his degenerative disc disease resulting in limited mobility. He did not recommend surgery for that condition. However, he did recommend surgery for the tear to the labrum. Dr. Caesar evaluated the permanent disability resulting from all the injuries as a 20% whole body impairment. He testified and I accept his evidence that if the surgery is successful this would reduce his overall disability to 18% in the short term and in the long term (10-15 years) to a much higher figure but he did not indicate any figure. Dr. Caesar also testified that degenerative arthritis could result from constant rubbing of the cartilage.

[20]The medical report of Dr. James Nelson confirms that the injuries suffered by Mr. Baptiste have limited his lifestyle. He states ‘this patient has sustained a 25% impairment of the whole person. He should avoid prolonged sitting or standing as well as lifting, bending, squatting, crawling, pushing or pulling. He should also avoid stooping or twisting. As a result of his cervical and lumbar disc problems, he should not lift over 10lbs. He will not be able to return to his previous line of work and will need vocational rehabilitation’.

[21]In the final analysis the reality is that Mr. Baptiste suffered serious injuries such that he is now limited in carrying out his normal activities and is unable to continue in his employment as a painter and there is the real possibility that his condition will worsen. The Pain and Suffering and Loss of Amenities and the impact on the claimant’s pecuniary prospects

[22]I accept Mr. Baptiste’s testimony that he suffered severe pain in his back, shoulder and thighs for the first year after the incident and thereafter suffers from occasional pain for about 3 days a week. He said that he only gets relief when he takes his medication and that even when on medication he continues to suffer pain so much so that it usually wakes him up from his sleep.

[23]The medical reports of Drs. Caesar and Nelson and the evidence of Dr. Caesar indicate that Mr. Baptiste experienced and is still experiencing chronic pain and discomfort in his shoulders, neck, back and thighs. I have no doubt that Mr. Baptiste has suffered a great deal of pain and is still suffering from some degree of pain and discomfort. And will not be entirely free of pain in the future.

[24]Mr. Baptiste’s testified that he was an avid basketball player before the accident and that since the accident he is unable to play basketball because of his physical limitations. He also spoke of his pride and enjoyment in his job as a painter of vessels, which he is no longer able to perform. Mr. Baptiste’s evidence was not challenged on cross-examination. I note that Mr. Baptiste has only been able to work intermittently as a truck driver and handyman because of the limitations on his physical abilities resulting from the injury. Without doubt, this loss of congenial employment can be taken into consideration by the Courts in an award of general damages.

Quantum of General Damages

[25]Mr. Carrington submitted that an award in the sum of $50,000.00 is appropriate for general damages. In support of this submission counsel relied in the main on the local case of Morillo v Forbes.7

[26]In Morillo, the claimant, aged 50 suffered muscle spasms in her cervical thoracic and lumbo-sacral spine; tenderness in the chest around the costo-chondral joint; inflammation in the left shoulder, biceps, tendon and rotator cuff and was awarded general damages in the sum of $40,000 for pain suffering and loss of amenities where there was whole body impairment of 19%. Mr. Baptiste’s injuries were more serious than those suffered by Morillo and his level of impairment is slightly higher now but expected to be reduced if he undergoes surgery for the shoulder impairment. This would then bring him in the range of Morillo.

[27]Mrs. Small-Davis relied on a number of cases8 and submits that an award reasonable for pain suffering and loss of amenities should be in the range of $15,000 to $20,000. However, I am of the view that those cases are not on a par with this case.

[28]Any compensation awarded is meant to put a claimant in the same position he would have been in had the accident not occurred. In doing so the court is guided by awards for comparable injuries in its and other jurisdictions having similar social and economic conditions.

[29]The injuries suffered by Mr. Baptiste, to my mind, are serious as Mr. Baptiste is partially disabled as a result and he will remain so. He will require further medical attention in the form of therapy, injections and surgery to alleviate his pain and discomfort. He will never make a complete recovery as the surgery recommended is only in relation to his shoulder and not for the degenerative disc disease.

[30]I have considered all the authorities cited and the respective submissions and I have take into consideration the matters to be regarded as per the Cornilliac. In all the circumstances, in my judgment an award of US$45,000.00 will represent fair and reasonable compensation for the injuries sustained by Mr. Baptiste.

Future Medical Expenses

[31]I accept Dr. Caesar’s evidence that he would recommend surgery for Mr. Baptiste’s shoulder which would increase its strength, relieve pain and increase his ability to reach and do over the shoulder movements. He estimated the medical fees for such surgery are: - Surgeon’s fees ($6,875 plus 25% to reflect current rates) $8,593.75 Anesthesiologist ($700 - $900 for approximately 3 hours)9 $2,400.00 Hospital (3 - 4 times surgeon’s fees) $30,078.12 Total $41,071.87 These figures have not been challenged. The court will therefore award the sum of $41,071.87. For the avoidance of doubt no interest is payable on this sum.

Special Damages

[32]Mr. Baptiste claims special damages. I accept his evidence that he incurred the following expenses10:- Water taxi $ 300.00 Initial orthofoam $ 295.00 Medication $ 192.00 Medical consultations $1,568.00 Traveling expenses to attend doctor in St. Thomas $ 616.00 Medical procedures $1,298.80 Total $4,269.80 The court will award Mr. Baptiste the full sum of $4,269.80.

Loss of Future earnings

[33]Mr. Baptiste claims loss of future earnings. Mr. Carrington submits that he is entitled to an award under this head as on the evidence he would be unable to earn the same level of earnings he enjoyed prior to the accident. I find that damages under this head are recoverable. The evidence undoubtedly establishes that Mr. Baptiste will suffer loss of future earnings as a result of the injuries he sustained and this loss can easily be calculated.

[34]The courts have evolved a particular method for assessing loss of future earnings, or in other words, for arriving at the amount which a claimant has been prevented by the injury from earning in the future. This amount is calculated by taking the figure of the claimants present annual earnings less the amount, if any, which he can now earn annually, and multiplying this by a figure which, while based upon the number of years during which the loss of earning power will last, is discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over the years. This latter figure has long been called the multiplier; the former figure has come to be referred to as the multiplicand. Further adjustments, however, may or may not have to be made to multiplicand or multiplier on account of a variety of factors, namely the probability of future increase or decrease in the annual earnings, the so-called contingencies of life, and the incidence of inflation and taxation. See McGregor on Damages para. 1564.

[35]The guidance given by the Court of Appeal (Singh JA) in Alphonso v Deodat Ramnath in determining the multiplier is also pertinent:- “In determining the multiplier a court should be mindful that it is assessing general and not special damages. That it is evaluating prospects and that it is a once-for-all and final assessment. It must take into account the many contingencies, vicissitudes and imponderables of life. It must remember that the plaintiff is getting a lump sum instead of several smaller sums spread over the years and that the award is intended to compensate the plaintiff for the money he would have earned during his normal working life but for the accident.” I note in that case a multiplier of 12 was used for a 42 year old male.

[36]Currently, Mr. Baptiste suffers from a 20% overall disability and as a result of his injuries he has been unable to continue in his chosen employment as a painter. The corrective surgery to the shoulder will alleviate his condition somewhat and reduce is overall disability but he will still continue to suffer from the degenerative disc disease. Accordingly, his earning capacity has been seriously diminished and he is entitled to compensation for that loss.

[37]Mr. Baptiste’s evidence is that at present a painter receives a base salary of $400 - $480 per week. He says further that he now earns $90.00 per day as a driver and that he works 3- 4 days per week. In calculating Mr. Baptiste’s loss of future income the Court will apply the median of those figures. It can be taken that he would have a normal working life of 65 years. Mr. Baptiste is now 42, and he has an expected working life of 23 years. Allowing for early receipt and the real possibility that if he has surgery he will be in a better position to find means of increasing his earning capacity I will use a multiplier of 12. My calculations therefore are as follows: - $22,880.00 (current yearly salary of a painter - $440.00 x 52 weeks) less $14,040.00 (present salary - $90.00 at 3 days per week = $270.00 x 52 weeks) = $8,840.00 (annual loss of income) x12 (multiplier) = $106,080.00 discounted by 20% for the vicissitudes of life e.g. an early demise = $84,864.00.

[38]Mr. Carrington submits that in addition Mr. Baptiste should be compensated for loss of earning capacity. I find, as submitted by Mrs. Small-Davis that this is not a case where the claimant is at a substantial risk of becoming unemployed and that it is only in such circumstances that such an award is made. See Smith v Manchester (1974) 17 K.I.R., C.A. Accordingly no award is made under this head.

[39]In addition, Mr. Baptiste is to recover the costs of Dr. Caesar’s attendance as follows:- Dr. Caesar’s fees for attendance at trial $3,000.00 Medical Report $1,500.00 $4,500.00

[40]In summary, for the foregoing reasons the court orders as follows:- Tortola Yacht Services Limited do pay to Mr. Baptiste the sum of $179,705.67 as damages made up as follows:- (1) $45,000.00 - general damages for pain and suffering and loss of amenities (2) $4,269.80 - special damages (3) $84,864.00 - loss of future earnings (4) $41,071.87 - future medical expenses (5) Interest on general damages at the rate of 5% per annum from 19th June, 2006 (the date of service of the claim) until judgment. (6) Interest on special damages from 19th June, 2006 at the rate of 2½% per annum until judgment. For the avoidance of doubt there is no award of pre judgment interest on the awards for future medical expense and loss of future earnings. (7) $4,500.00, Dr. Caesars’s costs. (8) Mr. Baptiste is to have his costs in accordance with CPR Part 65.5.

Rita Joseph-Olivetti

High Court Judge

British Virgin Islands

THE QUEEN v DESMOND ALPHONSO IN THE HIGH COURT OF JUSTICEBRITISH VIRGIN ISLANDS(CRIMINAL JURISDICTION)CRIMINAL CASE NO. 18 of 2007THE QUEENandDESMOND ALPHONSOAppearances: Mr. Terrence Williams, Director of Public Prosecutions, Ms. Tiffany Scatliffe Crown Counsel for the CrownMr. Richard Small, Mrs. Tanania Small-Davies, Mr. Herbert McKenzie, Mr. Steven Daniels for the Prisoner______________________________________2008: July 17th 18th and 29th______________________________________Judgment on Sentencing(Criminal Law – Sentencing – Guilty Plea – Assisting Offenders – Criminal Code 1997 – s. 318 of the Criminal Code – Prisoner assisting three fugitives who allegedly committed murder by providing accommodation for them thus enabling them to evade capture for several weeks – principles to be considered – whether court entitled to take into account current decisions/guidelines even if it means departing from an earlier decision of its own on similar offence)[1] Joseph -Olivetti J: – A young woman was murdered on 3rd October 2006 in Tortola in the British Virgin Islands. Three men were suspected of her murder and a massive manhunt ensued. The fugitives were not captured until several weeks later. The Prisoner, Desmond Alphonso pleaded guilty on Thursday 17th July 2008 to the offence of assisting them. A sentencing hearing was then held and sentence was deferred to 18th July. On that date the Prisoner was sentenced to four years imprisonment. I now give full reasons for that decision.THE FACTS[2] The gist of the facts as given by the Prosecution is as follows. Ms. Dorcas Rhule was murdered on 3rd October 2006 at Little Dix Hill in Tortola.. She was thrown four stories from the balcony of her apartment. Ms. Rhule’s injuries according to the autopsy report were consistent with someone having been thrown from a considerable height after being choked so that she was either dead or unconscious when she was thrown. The crime drew immediate public attention and three Jamaican men, Milton, Campbell and Bailey were wanted in connection with her murder. Wanted posters were published on 6th October 2006 and a reward was issued for any information leading to the capture and subsequent conviction of those men.[3] Immediately after the murder the fugitives contacted the Prisoner on his cellular phone. The Prisoner was at that time driving his vehicle in the company of a friend Jay Archibald. Upon receiving the call the Prisoner immediately went to pick up the fugitives at two different locations one being his house which was under construction. The Prisoner then explained to Jay Archibald that the fugitives were experiencing problems with Immigration and that the Police were looking for them for working in the Territory illegally and he asked Archibald if he could let the men stay at his house as they could not stay at his house anymore. Archibald agreed and the fugitives spent the night at Archibald’s house which was then unoccupied.[4] The next morning Archibald discovered that the men were wanted in connection with the murder and told the Prisoner that the men had to leave his house. Archibald suggested to the Prisoner that the Police should be called but the Prisoner said no as he had concerns that the fugitives would turn on them. They bought food for the men, went to Archibald’s home and after the men ate Archibald told them they had to leave.[5] The Prisoner, accompanied by Archibald, then drove the fugitives to the home of another man who refused to take them in. On the way the Prisoner drove past the Road Town Police station and made certain observations to the fugitives about a vehicle the Police had taken into custody which was connected to one of the fugitives. The Prisoner eventually took the fugitives to an abandoned house at Fish Bay in the immediate vicinity of the Prisoner’s residence/ business. This house belonged to his father. The Police subsequently caught Milton and Campbell in the bushes near Fish Bay on 1st November 2006 and Bailey was found on 26 November 2006.

[6]the Prisoner was arrested on or about 27th November 2006. he said nothing to the Police. He has been In custody since then. The Court notes from the court’s file that he appeared at the October 2007 Assizes and then again at the March 2008 Assizes. that his trial did not come off was due to no fault of his This was due to the fact that he was jointly indicted with Milton, Campbell and another (Bailey is deceased) and some of the men had difficulties in obtaining legal representation. Mitigation and submissions on behalf of the Prisoner

[7]Four persons testified on the Prisoner’s behalf. The essence of their evidence is that he is an industrious and honest businessman who strove to be economically successful and enjoyed a good business reputation. However, one did not get the impression that these witnesses had any dealings with the Prisoner other than on business matters as they did not appear to be socially acquainted with him in any real sense. Thus, one was left without a sense of really knowing what manner of man was before the court. Indeed no one spoke of his immediate family – spouse, girlfriend or children and his interaction with them or even his parents. What we gleaned from his counsel is that he is of Guyanese parentage and came to the Territory as a babe in arms and lived here all his life and that he worked initially with his father until he went into business for himself. The Prisoner is now approximately 39 years old.[8] The Prisoner himself said a few words on his own behalf to the effect that he regretted helping the men as he was anxious to uphold the laws of the land. However he assisted them because they had threatened him and he was afraid for his life as he knew that the men were armed with guns and knives. He also explained that the men (it is not clear whether he referred to all three ) were his employees and that when they first arrived in the Territory he had allowed them to live at his unfinished house in Kingston as they had no other place to go. He also said that he only knew that the men were concerned about working illegally in the Territory when he rendered his assistance to them.[9] Learned counsel for the Prisoner, Mr. Small, submitted that the Prisoner’s prior convictions all related to traffic offences and that accordingly the Prisoner ought to be treated as a first time offender. The Crown had no quarrel with that. Mr. Small sought to distinguish the cases submitted by the Crown and placed heavy reliance on BVI Case No. 18A of 2007 R v Jay Archibald, a decision of this court as now constituted delivered on 6th November, 2007. Counsel submitted that the court should not depart from its opinion as articulated therein that such an offence would merit a term of between one to two years imprisonment as it was arrived at on a proper analysis of the principles. Further, that in any event the court should not give disparate sentences in similar cases as this case and Jay Archibald are very similar. Thus, urged Mr. Small, the court should not take account of the cases relied on by the Crown even though these cases were not drawn to the court’s attention when considering sentencing in Jay Archibald. Court’s Considerations[10] Section 318(5) of the Code lays down a scale of maximum penalties for this offence which varies according to the gravity of the fugitive’s offence. So for assisting a murderer the maximum penalty is ten years imprisonment. However, punishment is always a matter for the court’s discretion having regard to the particular circumstances of the case and the law gives the Court a wide range of punishment options.[11] I have considered Mr. Small’s submissions and the authorities submitted by the Learned Director of Public Prosecutions namely three cases from the English Court of Appeal – R v Julian Charles Elfes {2007] 1Cr.App.R.(S) 118, R v Morgan {1972]1Q.B.436 and R v Robinson [2007] EWCA Crim.3120. Somewhat surprisingly he said there was a dearth of local authorities and failed to mention Jay Archibald which omission was rectified by the defence.

[12]If I am not mistaken some cloud seems to have arisen about prosecuting counsel’s duty in sentencing matters. It is therefore useful to remind ourselves of the Crown’s role on sentencing. by convention the prosecution adopts a neutral attitude at the sentencing stage not seeking to influence the court in favour of a heavy sentence. Part of counsel’s general duty is to assist the court to avoid appeal-able errors and entails amongst other things that he or she reminds the court of any statutory guidelines on sentencing and any relevant guidelines laid down by the court of appeal. See Blackstone op.cit. para.D18.1 p.1518.

[13]Now to look at the three cases the Crown referred us to. In Elfes (a judgment delivered on 26th October 2006) the Appellant was convicted of assisting an offender knowing him to be guilty of murder and sentenced to five years imprisonment. The victim of the murder was shot with an automatic weapon fired by one man who was driven in a car by another man. The appellant had arranged accommodation for the murderer near Heathrow Airport and had provided him with funds to live on. The trial judge passed sentence on him on the basis that he had been a close associate of the murderer who had rendered essential assistance in the immediate aftermath of a planned criminal execution although he had not been charged with conspiracy to murder and it was not alleged that he had been privy to the plan to murder. The appellate court did not interfere with the sentence as it was satisfied that the trial judge was justified in concluding that assistance given by the appellant called for a severe sentence and the sentence of five years was not outside the available bracket.[14] In R v. Martin Meldrum Morgan (1972) 56 Cr.App.R.181, (delivered Nov. 23 1971) the appellant was convicted of assisting offenders and was sentenced to four years imprisonment. He had knowledge that a murder had occurred and provided or arranged a hideout for the murderers where the police eventually found them.[15] In Robinson (a judgment delivered on 3rd December 2007) the appellant pleaded guilty at the fist available opportunity to a charge of assisting an offender and was sentenced to four years imprisonment. The offence arose out of an armed robbery at a travel agent in Bradford which resulted in the death of a Woman Police Constable and injury to her colleague. One of the fugitives was a school friend of the appellant. He contacted the appellant and the appellant took him to South Wales to another man, Gordon where they lived together in hiding at Gordon’s address. The appellant was seen on occasions leaving the flat to purchase food. They moved to another flat when it became apparent that the police might discover their address and Gordon made the arrangements. The police became aware of them ultimately and a large scale operation was mounted and they decided to leave their now unsafe premises. They were seen and the appellant realized that the sensible thing to do was to hand himself in and that is what he ultimately did.

[16]In that case at para 8) counsel for the appellant like Mr. Small here referred The court to a significant number of authorities which he submitted indicated a bracket of between 12 and 18 months in most cases of assisting offenders rising to two years or thereabouts for assisting offenders after there has been a murder. However, the Court of Appeal had no hesitation in indicating that this line of authority had outlived its usefulness so to speak. it, followed the approach in Elfes where it was made clear that in some of these old cases where comparatively short sentences were imposed upon people who had provided shelter for criminals who had committed offences including killing, the court appeared to have been influenced by the fact that the then maximum sentence for sheltering a fugitive escaped from prison was two years and the maximum penalty for assisting a murderer was then seven years. The court emphasized that the maximum sentence where murder has been committed is now ten years and affirmed the sentence. Obviously, the old cases no longer govern.[17] Counsel for the appellant, again like Mr. Small here, had also challenged the sentence by contrasting it with the sentence of 18 months imposed on the co-defendant Gordon. Here Mr. Small urged the court to follow the alleged guidelines established in Jay Archibald and to have regard to the sentence imposed on Archibald which was 1 year’s probation. The court of appeal held that as far as the sentence for Gordon was concerned Gordon played a different part and that although the sentence on Gordon was lenient that in itself did not justify the court interfering with the sentence on the appellant. The court made it clear that the sentencing judge was entitled to take account of the separate roles played by each offender and to sentence accordingly.[18] I acknowledge Mr. Small’s kind words about this court’s decision in Jay Archibald. However, that case although concerned with assisting the same fugitives is readily distinguishable from the case at bar as it was based on its own facts. Archibald it must be remembered housed the fugitives for one night only as a favour to the Prisoner, his friend, and thereafter when he found out that they were wanted for murder declined to assist further and subsequently when arrested gave substantial assistance to the Police. In addition, the sentencing authorities relied on was older cases than those now submitted. Furthermore, this court is of the view that although courts strive not to give disparate sentences in similar cases that the sentences pronounced by courts of concurrent jurisdiction are not binding and that the court’s generous discretion on sentencing must reflect The particular circumstances of each case. Thus, to use the words of Hughes LJ in Elfes at para.8, this court, in Jay Archibald cannot be regarded as having established any kind of benchmark for the modern practice of sentences for assisting an offender after an offence of murder.[19] The law is not static and the court is required to consider recent guidelines and in particular to take account of any legal principles affecting sentencing although they might not have informed an earlier decision. To do otherwise would be irresponsible and would be to fly in the face of accepted principles.

[23]In all The circumstances, in my judgment a term of four years imprisonment would meet the justice of the case. Accordingly, Desmond Alphonso is sentenced to four year’s imprisonment; time spent on remand is to be taken into account.Rita Joseph- OlivettiHigh Court JudgeBritish Virgin Islands

[20]In my judgment this case is far different from that of Jay Archibald although both arose out of the same background. Here, the Prisoner rendered invaluable aid to the fugitives who were wanted for a horrific murder shortly after that murder was committed. He was instrumental in assisting the fugitives to remain at large for almost a month by providing them with a safe abode. Shortly after the crime He picked them up and arranged a safe haven for them with his friend, Archibald. When the very next day Archibald became aware of what they were wanted for and refused to accommodate them further he took them to someone else’s place and when that person. refused to harbour them He took them to his father’s old house. One may as well ask why he exerted himself so much as He owed them no loyalty. They were recent employees to whom he owed no such loyalty as one would to an old friend, a parent, sibling or other relative (not that the law looks upon such relationships As justifying harbouring a fugitive although it is more readily understandable). his explanation that he was threatened caries little weight as those threats, having regard to the sequence of event ,if made would have been made on the telephone with no immediate means of carrying them out and he would have had ample time to report the matter to the police. He choose not to do so then or even later and this when according to him he knew or suspected that the fugitives were armed and dangerous. Furthermore, one wonders why the fugitives chose to contact him, their employer so soon after the murder for assistance. He had an early opportunity to report them to the Police and to seek the protection of the police and so save the Territory enormous expense and the relatives of the murdered woman much trauma and grief but he failed to do the right thing.

[21]To my mind the only mitigating factors are the guilty plea and the fact that he can be treated as a first offender. True, he did not plead guilty at the earliest opportunity but the court has not embarked on a trial and therefore the Prisoner will not be penalized for this and will be accorded the usual discount.Conclusion[22] In all the circumstances and for the foregoing reasons in my judgment this is an extremely serious offence and the aggravating factors far outweigh the mitigating factors. The Prisoner actively assisted three fugitives wanted for a most horrific murder in the immediate aftermath of the murder. He went out of his way to succor them and had no conceivable moral reason for so doing. He even got one of his friends involved. He must have known, certainly by the second day at the very least, that they were so wanted yet he continued to assist them and by so doing enabled them to evade capture for a considerable length of time. And, what is more, he is ostensibly a mature, responsible man. Persons who harbor fugitives must be made to realize that doing so is a grave offence and that they do so at their peril and must be prepared to meet the consequences. This Territory, like so many other countries, is concerned at the current wave of serous crime dogging its shores and every good resident is called upon to be vigilant if we want to maintain a safe environment for all. We cannot do so if persons who are wanted by the law enforcement authorities are shielded. Furthermore, murder is among the most serious of offences and the court must take a serious view of those who assist murderers. This modern view is underscored in Morgan by Stephenson LJ at p. 5 –“Suffice it to say that The offences of burglary and robbery were grave offences and this court cannot do other than take a very serious view in these days of the offence of assisting a murderer or murderers to avoid apprehension, even if friendship is the principal motive.”