The Queen v Kazia Chandler

• Jurisdiction: St Lucia
• Judge: Ramdhani J.,Darshan Ramdhani
• Judgment Date: 12 June 2015
• Judgment citation (vLex): [2015] ECSC J0612-1
• Date: 12 June 2015
• Docket Number: CASE NO. SLUCHRD2009/1105
• Court: High Court (Saint Lucia)

[2015] ECSC J0612-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

CASE NO. SLUCHRD2009/1105

Between

The Queen

and

Kazia Chandler

Appearances:

Mr. Horace Fraser for the Defendant

Ms. Jenin Samuel-Kisna Crown Counsel for the Crown

Criminal Law — Sentencing — Manslaughter -Guilty Plea — Aggravating Factors — Violent Attack in Public Place — Use of Weapon — Excessive Force — Attack on Defenceless Victim — Death not an Aggravating Feature of this Offence — Mitigating Factors — Low Degree of Provocation — 13 Year — Old Defendant — Remorse — Range of Sentence — Starting Point Influenced by Age of Offender — Benchmark Sentence for Manslaughter Case 15 years — Appropriate Case for a varied starting point of 12 years for Adult Offender having regard to Low Degree of Provocation — Reduced by One Year for Every Year Offender Below age of 18 years — Starting Point for Minor Offender 7 Years — Evaluation of Aggravating and Mitigating Factors Results scaling upwards to 12 Years — Remorse Mitigates the Sentence — Reduction for Guilty Plea — Further Reduction for Delay.

Dangerousness — Section 1097(2)(b) of the Criminal Code — Oblique Suggestion in Guidelines for Extended Sentence to Protect the Public From Serious Harm from Defendant — Test of Dangerousness — Matters for the Court's Consideration — Uncontested Factual Basis of Guilty Plea — Unchallenged Pre Sentence Report — Defendant 13 Years Old at Date of Offence — One Other Offence Committed Subsequently — Pre Sentence Report Identifying Risk Factors & Positive Character Traits — Court Unable to Make Finding of Dangerousness.

A charge of murder was laid against a 13 year-old schoolgirl in 2009 for stabbing a 19 year-old female at a dance hall in Ciceron in 2009. The prosecution case was that on the early morning hours of the 13 ^th June 2009, the defendant who, according to the pre sentence report was a very troubled young girl at the time, was at this dance hall and witnessed one of her friends being attacked by the deceased. The defendant and the deceased knew each other prior to this incident having been once friends themselves. The friendship had ended and the deceased had taken to assaulting and threatening the defendant on occasions. As a result of these threats the defendant had armed herself with a knife that she carried on her person. On the night at the dance hall when the deceased was on the ground during the fight, the defendant took out her knife from her waist and stabbed the deceased five times on her back and neck; the fatal injury to her neck.

The defendant was arrested and charged and shortly thereafter was released on bail. It was undisputed that she was refused permission by the authorities, to continue to attend her school as a direct result of the charge. In 2012, she committed the offence of wounding another person, again with the use of a knife. She was sentence to eleven months on that offence. This matter was listed for trial on a number of occasions, but largely owing to the lack of resources, it could not be tried. Finally in March 2012, the prosecution gave an indication that it would accept a plea of manslaughter on the basis that the defendant had been provoked on the night having regard to the previous assaults and threats and the fact that her friend was being attacked that night. The defendant was re-arraigned and pleaded not guilty to murder but guilty to the lesser-included count of manslaughter. Having regard to the circumstances of this case, the court considered that this was a proper plea. In their guidelines, the Crown asked the court to consider the subsequent wounding conviction in finding the appropriate sentence in this case. The Guidelines also suggested that the court should consider that this was not a plea made at the first reasonable opportunity.

On behalf of the defendant, the court was urged that the defendant should not be treated as though she had committed the offence when she was 19 years old, this being her present age, but that she should be sentenced as though she had pled guilty shortly after the commission of the offence when she was in fact only 13 years old. Following on from this, counsel also contended that the subsequent offence could not be given any consideration and that the defendant for all intents and purposes should be treated as a first offender. It was further contended on her behalf that she had pleaded at the first opportunity given to her and that she should be given the full discount. Counsel finally asked that having regard to all of the circumstances the considerable delay in the case she should be given a suspended sentence.

Held:

• 1. As a general rule a sentencing court should approach the imposition of a sentence on an offender as though the offender was being sentenced within a reasonable period after the commission of the offence. Notwithstanding, the sentencing court is entitled to have regard to the personal characteristics of the particular offender at the date of sentencing to determine whether he or she has been of positive good behaviour since the date of the offence, or whether he or she is presently at risk of re-offending. The court is also therefore entitled to consider both past and present circumstances of the defendant to make an assessment of dangerousness under section 1097(2)(b) of the Criminal Code, Cap 3.01. In this regard, the court is entitled to consider subsequent offences committed by the offender.

  Considered: Cullen v the Director of Public Prosecutions [2013] 6 JIC 1701

• 2. Before considering questions of reduction for a guilty plea or the effect that any delay in the proceedings may have on the sentence, the court must first fashion the appropriate sentence having regard to all the principles of sentencing, the general and personal mitigating factors of both the offence and the offender. In this process, the court must have regard to the statutory maximum together with the seriousness and prevalence of the offence. The offence of manslaughter is a serious offence, carries a discretionary life imprisonment as the maximum, and is among those violent crimes that are prevalent in St. Lucia and so will presumptively attract a significant custodial sentence.

• 3. In sentencing a young offender below 18 years of age, a court 'should be mindful of the general undesirability of imprisoning young first offenders. For such offenders the Court should take care to consider the prospects of rehabilitation and accordingly give increased weight to such prospects. Where imprisonment is required, the duration of incarceration should take such factors into account.' A balance must be struck in seeking to avoid the criminalization of young offenders and in ensuring that they are 'held accountable for their actions and where possible take part in repairing the damage they have caused. This includes recognition of the damage caused to the victims and understanding by the young person that the deed was not acceptable. Where the offence is as serious as this one even the young offender will presumptively face a serious custodial sentence. Punishing any offender involves inter alia a qualitative assessment of his or her culpability. When it comes to a young offender it is therefore even more important to have regard to his or her maturity at the date of the offence and his or her level of culpability. It is for these reasons that even in these serious offences, it may be appropriate to reduce the starting point for young offenders. In these types of cases where the person's development and maturity is within the normal range for the young person's age, for the purposes of this court, a rough approach would be to lower the adult offender's starting point sentence by one year for every year the young offender is below 18 years.

  Approved: Dicta of Byron CJ in Desmond Baptiste and Others OECS Criminal Appeal No. 8 of 2003 at para 30.

  Considered: R v CK [2009] NICA 17 ; United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules); United Nations Convention on the Rights of the Child (UNCRC); Overarching Principles — Sentencing Youth" UK Sentencing Guidelines Council; The Practice Statement (crime: life sentences) [2002] 3 All ER 412; R v Wooton and Another [2012] NICC 10

• 4. In accepting a guilty plea for manslaughter on the basis of provocation a number of assumptions must be made. First, it must be assumed that the factual basis of the provocation is true. Second, it must be assumed that the defendant did not simply get angry and retaliate, but that there was sufficient provocation in law to have made her in fact lost her self-control as a result of things said and or done to her by the deceased. Where such provocation is deemed to have existed the court must assess it to decide what impact it should have on the starting sentence. In this case the provocation was a low degree of provocation and so in accepting the guidelines, the starting sentence for an adult offender in the circumstances of this case would be a sentence of 12 years imprisonment. This starting point would then have to be lowered in consideration of the age of this defendant. In this regard, having regard to the circumstances of this case including the clear signs of the defendant's immaturity reflected in her behaviour at the relevant time it is appropriate to take off one year for each year she is below 18 years. The starting sentence in this case is a sentence of 7 years imprisonment.

• 5. There were serious matters of aggravation in this case, the provocation barely passing the pale and justifying the plea of manslaughter. The fatal stabbing took place in a public place, no less a place of public entertainment, where other members of the public were present. The defendant had armed herself with this knife that she brought to the dance with her. Whilst the death is no aggravating...