Skip to content

The Queen v. Everton Welch

  • by

Court/Judicial body: Eastern Caribbean Supreme Court in the High Court of Justice Antigua and Barbuda, Criminal Division

Citation: Criminal Case No. ANUHCR 1994/0015
Date: 14 December 2011
Instrument(s) cited: The Offences Against the Person Act, CAP 300, Section 3(1) The Juvenile Act, CAP 229, Section 2

Case summary

Background: The applicant was convicted of a murder committed when he was 17 and was sentenced to imprisonment at the Governor General’s (Her Majesty’s) pleasure in 1994. In 2009, the applicant filed a Fixed Date Claim Form and sought determination that such a sentence was unconstitutional. On 4 March 2011, the Court ruled that the sentence was invalid and corrected the sentence to imprisonment at the court’s pleasure. The Court further held that the applicant be brought before a court at the earliest convenient time on an application to review the detention of the applicant from 1993 to 2011, so that the court could make its pleasure known in relation to the continued detention of the defendant. That application was heard by the Eastern Caribbean Supreme Court in the High Court of Justice on 28 October 2011 and the present judgment concerns the issuance of a definite sentence under the court’s pleasure.

Issue and resolution: Life imprisonment. Whether age is a relevant factor in determining the appropriate sentence for murder. The Court found that age was a relevant factor, and that the applicant should be released from prison immediately as he had inter alia shown that he could be rehabilitated.

Court reasoning:   The Court held that it is a mandatory requirement in murder cases for a judge to take into account the personal and individual circumstances of the convicted person. The Court further held that sentencing principles include the notion of a general undesirability of imprisoning young offenders, but that this must be balanced with a consideration of the facts of the crime for which the offender is being sentenced. The Court therefore considered a range of factors to be taken into account when deciding on the applicant’s appropriate sentence: the nature and gravity of the offence; the character and record of the convicted person; the factors that might have influenced the conduct that caused the murder; the design and execution of the offence, and the possibility of reform and social re-adaptation of the convicted person. On the one hand, the Court considered the facts and circumstances that surrounded the commission of the offence. Based on these factors, the Court argued that, while the offence was heinous, the applicant was 17 years old at the time of its commission and has demonstrated significant and positive advancement while incarcerated. The applicant had served what amounted to 19 years in prison and had taken advantage of opportunities to better himself. In light of the totality of the circumstances, the Court was of the view that to incarcerate the applicant any further would not serve the interests of justice and that the applicant should be released immediately. The Court found that it could not “simply pay lip service to the concept of rehabilitation”, but that it must recognise and reward those offenders who accept and make use of what is available to them, even though at times very little is offered to them in prison facilities. The applicant was seen to have shown that he can be rehabilitated and reformed and that he can adapt and re-enter society. The Court found that significant consideration must be given to the age of the applicant. Under Section 2 of the Juvenile Act of Antigua and Barbuda at, a “child” means a person under the age of 14 years, a “juvenile” means a person under the age of 16 years, and a “young person” means a person who has attained the age of 14 years and is under the age of 16 years. The Court noted that the Offences Against the Person Act provides that the death penalty shall not be imposed where the murder was committed by a person under the age of 18. Impact: In 2013, Everton Welch brought a case against the Attorney General of Antigua and Barbuda for damages for his first invalid sentence. On appeal, the Privy Council granted that he should receive nominal damages for the invalid sentences and referred the case to the Eastern Caribbean Supreme Court for consideration of whether additional damages should be granted. The Privy Council stated that additional damages should only be granted if he was detained longer than he otherwise would have been if the invalid sentence had not been imposed. The Privy Council judgment is available here. As of March 2015, the Eastern Caribbean Supreme Court had not issued a ruling in the case.

Notes: For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN’s ‘Inhuman sentencing’ campaign.

Link to full judgement: