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The State v. Alexander Don Juan Nicholas, Gregory Tan and Oren Lewis

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The State v. Alexander Don Juan Nicholas, Gregory Tan and Oren Lewis

The High Court of Justice, San Fernando (Sub Registry)

Cr. S. No. 26/06 & No. 109 of 2007

14 December 2012

Instrument(s) Cited:
Criminal Law Act (Chapter 10:04), Section 2A
Offences Against the Persons Act (Chapter 11:08), Section 4
Interpretation Act (Chapter 3:01), Section 68(2)

Case Summary:

Three men, Nicholas age 36, Tan age 35 and Lewis age 31, were convicted of kidnapping and murdering a taxi driver. The three defendants pled guilty to murder which the Court accepted. The Court sentenced each defendant to life imprisonment, with hard labor and without the possibility of parole.

Issue and resolution:
Death Penalty and life imprisonment. Whether the death sentence is mandatory for offenders convicted of murder on the basis of the felony/murder rule and whether life imprisonment, instead of the death penalty, is an appropriate sentence for a murder charge. The Court held that the Court may impose the death penalty at its discretion. The Court held that the death penalty may be imposed only in exceptional cases where the facts of the case are the most extreme. Based on the facts in this case, the Court found that the imposition of the death penalty was inappropriate.

Court reasoning:
The Court held that in cases where a person has either pleaded guilty to, or been convicted of, murder on the basis of the felony/murder rule, the death penalty may be imposed at the Court’s discretion. The Court based this on Section 2A of the Criminal Law Act (Chapter 10:04) which sets out the felony/murder rule which states that when a person who kills another person in the course or furtherance of an offence involving violence, as well as any other person involved in the commission of the offence, such persons are liable to be convicted of murder even if the killing was done without the intent to kill or to cause grievous bodily harm. The Court also considered Nimrod Miguel v. The State, [2011] UKPC 14, another case from Trinidad and Tobago, which decided that a mandatory death sentence for murder on the basis of the felony/murder rule was unconstitutional.

The Court held that it is now regarded as the established law across all Caribbean jurisdictions that where the death penalty remains a discretionary sentence for murder, to place the decision whether to impose the death penalty at the sentencing judge’s discretion. This decision was based on a consideration of judgments from other jurisdictions and the Privy Council (Harry Wilson v. The Queen, Civil Appeal No.30 of 2004 St. Vincent & the Grenadines, Pipersburgh v The Queen, [2008] UKPC 11, Trimmingham v R., [2009] UKPC 25).

Based on its review of various precedents, the Court provided the following guidelines with respect to aggravating and mitigating factors to be considered in a sentencing decision: “(1) the crime being brutal and heinous itself does not necessarily tip the scale in favour of the death sentence; (2) the death sentence should be reserved for the most extreme and exceptional cases […]; (3) there must be no reasonable prospect of reform; (4) the object of punishment must be incapable of being achieved by any other means than the ultimate penalty of death; (5) before the imposition of the death sentence, psychiatric reports and social enquiry reports should be obtained and considered; [and] (6) the bad character of the accused ought not to weigh in the scales against him unless his previous conduct is so bad and similar to the index offence that it affects its gravity and/or it is relevant to whether there is a reasonable prospect of reform”.

This led the Court to its decision that the death penalty was an inappropriate sentence in this case. The Court reasoned that the facts of the case did not fall within the category of worst or rarest cases for which only the death penalty could be imposed, as no aggravating factors applied to the commission of the offence (no torture, prolonged trauma or humiliation of the deceased prior to death, no weapon used, apart from the deceased’s own belt, etc.).

The Court reasoned that where the imposition of the death sentence is inappropriate, the Court must first consider the appropriateness of life imprisonment before considering imprisonment for a term of years. Based on its considerations of various other jurisdictions, such as Tonga and India, the Court held that life imprisonment is appropriate in cases where the death of the victim results from either extreme cruelty or reckless indifference to human life. The Court argued that the present case fell into the category of reckless indifference to human life since the defendants formed an intention to kill and acted with reckless indifference as to whether death occurred, which was further demonstrated by the fact that after dumping the body they went on to negotiate the terms of the disposal of the car. The Court saw a complete lack of remorse, also because the defendants robbed, kidnapped and falsely imprisoned another man only a few days later. Based on these arguments, the Court sentenced the defendants to life imprisonment, with hard labor and without the possibility of parole.

Lastly, the Court held that a term of years for the offence of murder, where a person has either pleaded or been found guilty of murder on the basis of the felony/murder rule, would be appropriate in the following cases: (i) cases where death occurs accidentally during the course of the commission of a felony; (ii) where a party to that felony which results in death, so distances himself from the events that led to or caused the death of the deceased; (iii) the party to the felony could not have foreseen the actions of his co-accused that resulted in death or took no part in them; or (iv) a secondary party to a charge of murder, realized or foresaw that the principal might inflict physical harm falling short of grievous bodily harm and participated in the commission of the felony with that foresight. The Court found that none of these factors applied to the case at hand and held that imprisonment for a term of years was inappropriate.

This was the first ever case in the courts of Trinidad and Tobago which addressed the question whether the imposition of the death penalty on a person who has pled guilty to murder on the basis of the felony/murder rule is generally appropriate. The defendants appealed and their life imprisonment sentences were overruled and substituted with 30 years imprisonment by the Court of Appeal in December 2013. However, each of the defendants will only serve 18 years and ten months of the sentence as the Court of Appeal deducted the period they spent on remand awaiting trial and the time spent in prison after being sentenced. The Court of Appeal judgment can be found here and more information on the decision can be found here.

News reports on this case can be found here and here.

Link to Full Judgment:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.