Simon Marius v The King

• Jurisdiction: St Lucia
• Judge: Michel JA
• Judgment Date: 16 January 2025
• Judgment citation (vLex): [2025] ECSC J0116-1
• Docket Number: SLUHCRAP2008/0007
• Court: Court of Appeal (Saint Lucia)

Between:

Simon Marius

Appellant

and

The King

Respondent

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mde. Esco L. Henry Justice of Appeal

SLUHCRAP2008/0007

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal Appeal — Murder — Appeal against sentence — Relevant factors to be taken into account when sentencing a convicted person — Exercise of Discretion — Whether the judge failed to properly exercise his discretion in sentencing insofar as the court failed to consider the possibility of reform and social re-adaptation of the accused person — Evaluation of evidence — Sentencing Methodology — Whether the judge failed to properly evaluate the evidence placed before him insofar as he failed to employ the appropriate or any sentencing methodology prior to imposing a sentence on the appellant — Whether the judge failed to take into account the time spent by the appellant in custody prior to sentence and failed to make any mathematical calculation deducting the said time when he calculated the length of sentence from the date of sentence — Determinate Sentence — Whether the judge failed to address his mind to the possibility of imposing a sentence other than life imprisonment when determining the appropriate sentence to be imposed instead of the death penalty and in so doing improperly exercised his discretion in sentencing the appellant

On 10 ^th July 2002, the appellant was arrested for the murder earlier that day of Pedro Joseph who was, at the time of the murder, the bodyguard of the appellant's former girlfriend, Uzma Ahmed.

Uzma Ahmed was a British national who lived in Saint Lucia and worked as an Optometrist at Vision Express. As part of her work schedule, Ms. Ahmed held a clinic at Vision Express in Vieux Fort every Wednesday. In December 2001, Ms. Ahmed met and befriended the appellant, and their friendship blossomed into a romantic relationship. By March 2002 the appellant was living with Ms. Ahmed at her apartment. But in May 2002, Ms. Ahmed moved out of the apartment and began to live alone, whereupon the appellant started to follow her and more than once he physically abused her, which caused her to make reports to the Gros Islet Police Station against the appellant. Ms. Ahmed also hired a personal bodyguard, Pedro Joseph, who drove Ms. Ahmed to work daily and accompanied her to social events. The appellant however continued to follow her.

On Wednesday 10 ^th July 2002, Ms. Ahmed went to Vieux Fort for her usual work routine at the clinic. Ms. Ahmed was driven to Vieux Fort by Mr. Joseph in a Suzuki Jeep Reg No. 5143. Another Suzuki Jeep drove up alongside Ms. Ahmed's vehicle in the Sandy Beach area in Vieux Fort. Ms. Ahmed noticed that the appellant was the person driving the Suzuki Jeep which drove alongside her vehicle. The appellant then fired several gunshots into Ms. Ahmed's vehicle. Mr. Joseph was hit in the barrage of gunshots and was subsequently pronounced dead at the scene.

The appellant then came out of the vehicle he was driving, pulled Ms. Ahmed out of her vehicle, shot her in her chest area, and also stabbed her about her body. Ms. Ahmed lost consciousness as a result and when she recovered later that day, she was at St. Jude Hospital in Vieux Fort. Ms. Ahmed identified the appellant as the person who shot Mr. Joseph and who shot and stabbed her. The appellant was apprehended on the same day and was subsequently charged for the murder of Pedro Joseph. On 17 ^th July 2008, the appellant was convicted by a jury of the murder of Pedro Joseph and on 24 ^th September 2008 he was sentenced by the trial judge to life imprisonment.

The appellant had appealed against his conviction only but, after the dismissal of his appeal against conviction, he sought and obtained the leave of the Court to appeal against his sentence. On 15 ^th March 2023, the appellant filed submissions in support of his appeal against sentence, The appellant's 4 grounds of appeal against sentence may be summarised as follows: (a) While the trial judge listed the correct considerations and considered the correct authorities that a sentencing judge ought to consider when sentencing a convicted person, the judge failed to properly exercise his discretion in sentencing insofar as he failed to consider the possibility of reform and social re-adaptation of the appellant; (b) The judge failed to properly evaluate the evidence placed before him insofar as he failed to employ the appropriate or any sentencing methodology prior to imposing a sentence on the appellant; (c) The judge failed to take into account the time spent by the appellant in custody prior to sentence and failed to make any mathematical calculation deducting the said time when he calculated the length of sentence from the date of sentence; and (d) The judge failed to address his mind to the possibility of imposing a sentence other than life imprisonment when determining the appropriate sentence to be imposed instead of the death penalty and in so doing improperly exercised his discretion in sentencing the appellant.

Held: allowing the appeal against sentence, setting aside the sentence of life imprisonment imposed by the trial judge, and imposing a sentence of 24 years 10 months and 8 days imprisonment, commencing from the date of the sentencing of the appellant on 24 ^th September 2008;

• 1. An appeal against sentence is an appeal against the exercise of the sentencing judge's discretion. The Court of Appeal does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. An appeal court will only interfere with a sentence passed by the trial judge where it is manifestly excessive, or where the wrong principle has been applied in imposing the sentence. The appropriateness of the sentence will be evaluated according to the law and practice in effect at the time the sentence was passed by the judge.

  R v Ball [1951] 35 App Rep 164 applied; Steve Gurrie v The Queen GDAHCRAP2013/0004 (delivered 5th April 2022, unreported) followed.

• 2. The sentencing judge was in a position to make a decision on the possibility of reform and social re-adaptation of the appellant in determining the sentence to be imposed on him. Although nothing was stated expressly in the social enquiry report regarding the possibility of reform and social re-adaptation, there was enough in the report to extrapolate that there were real prospects of reform and social re-adaptation by the appellant. Therefore, the judge made an error of law when he failed to take these factors into consideration in arriving at an appropriate sentence, which allows this Court to intervene and re-sentence the appellant.

  Mervyn Moise v The Queen SLUHCRAP2003/0008 (delivered 15th July 2005, unreported) followed.

• 3. The primary rule is that in the absence of unusual circumstances a judge should fully credit a prisoner for pre-sentence custody. If the judge seeks to depart from the primary rule, he must state reasons for not granting a full deduction or no deduction at all.

  Shonovia Thomas v The Queen BVIHCRAP2010/0006 (delivered 27th August 2012, unreported) followed.

• 4. It is generally accepted that the maximum sentence of imprisonment allowed by statute for a particular offence should be reserved for the worst cases of that offence, and it will be wrong in most cases to start the process of determining the appropriate punishment with the statutory maximum. The sentencing judge is required to consider the facts and circumstances that surround the commission of the offence and on the other hand, the judge must also consider the character and record of the convicted person. Whilst the judge may accord greater importance to the circumstances which relate to the commission of the offence, the relative importance of these two factors may vary according to the overall circumstances of each case.

  R v Ball [1951] 35 App Rep 164 applied; Harry Wilson v The Queen SVGHCRAP2004/0030 (delivered 28th November 2005, unreported) followed.

• 5. Where the aggravating factors outweigh the mitigating factors, the court will impose a more severe sentence on the convicted person. These mitigating and aggravating factors must be weighed against the principles of sentencing — punishment, deterrence, prevention, reformation and retribution. The sentence imposed on the appellant must reflect his culpability, whilst taking into account the pattern of sentences for offences of a similar nature at or before the time the appellant was sentenced by the trial judge. The sentencing court has to consider the rehabilitation of the appellant, in addition to the applicable legislative requirements and sentencing principles, which include retribution, deterrence and prevention, before imposing a life sentence. The sentencing judge in this case did not make any real reference to the appellant's rehabilitation. The appellant's rehabilitation options should have been explored more thoroughly and issues acknowledged as obstacles to rehabilitation identified and addressed.

  R v Sargeant [1974] 60 Cr App Rep 74 applied; C. Dillon Saul v The Queen SLUHCRAP2008/0020 (delivered 25th January 2011, unreported) considered; Yanne Drysdale v The Queen SLUHCRAP2017/0003 (oral judgment delivered 8 ^th November 2021) followed.

Appearances:

Mr. David Francis for the Appellant

Mr. Linton Robinson for the Respondent

Michel JA

1 This is an appeal against a sentence of life imprisonment imposed on the appellant, Simon Marius, after he was found guilty of the offence of murder. The appellant had previously appealed against his conviction only but, after the dismissal of his appeal against conviction, he sought and obtained the leave of the Court to appeal against his sentence.

Background

2 On 10 ^th July 2002, the appellant was arrested for the murder earlier that day of...