Oliver v. The Queen (The Bahamas) [2007] UKPC 9 (26 February 2007)

Privy Council Appeal No 21 of 2005

Marco Oliver								Appellant
v.

The Queen 	Respondent

FROM

THE COURT OF APPEAL OF
THE COMMONWEALTH OF THE BAHAMAS

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 26th February 2007

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Scott of Foscote
	Baroness Hale of Richmond
	Lord Carswell
	Lord Brown of Eaton-under-Heywood
	
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		[Delivered by Lord Carswell]

1.	In July 1999 the appellant Marco Oliver committed a number of serious offences, for which, after various appearances in court, he was given a series of sentences of imprisonment.  Some of the sentences were made consecutive and the total came to an effective sentence of 42 years.  He brought an appeal to the Court of Appeal of The Bahamas in July 2002, but so far from reducing the sentences, the court increased them to an effective sentence of 55 years, to run from the date of the judgment.  The appellant has appealed with special leave to the Privy Council.

2.	The offences for which the appellant was sentenced were committed between 9 and 22 July 1999.  They consisted of two rapes, two attempted rapes, two kidnappings, eight armed robberies, two robberies with violence, one attempted robbery with violence and one burglary.  It is not necessary for the purposes of this appeal to set out the details of the offences.  It is sufficient to say that they were grave offences meriting condign punishment and the fact that the appellant was, as he stated, in the grip of a drug addiction and seeking to obtain money to pay for his drug habit is little excuse.  Mr Guthrie QC, who appeared for the appellant before the Board, rightly accepted at the outset that they were bound to be met with substantial sentences.   He advanced his arguments primarily on the power of the Court of Appeal to order an increase and the fairness of its taking that course, the issues on which special leave to appeal was given.  In dealing with the appellant’s constitutional right to a fair hearing he touched upon such issues as the totality principle, the propriety of ordering consecutive sentences, the account to be taken of guilty pleas and early admissions of guilt, the date from which the sentences should run and the appellant’s individual circumstances.  None of these was referred to by the Court of Appeal in its judgment.  

3.	The appellant, who was born on 17 September 1974 and was aged 24 years at the time of the offences, had a history of approximately twelve previous offences, going back to 1986, when he was aged 12 years. They consisted of housebreaking, shopbreaking, stealing and possession of dangerous drugs.  They were all dealt with in the magistrates’ court, carrying sentences of one year or less.  He was tried in November 2001 before Moore J and a jury on two of the offences in the July 1999 series, robbery with violence and attempted rape.  He was convicted of both and sentenced to 20 years’ imprisonment for the robbery with violence and 10 years for the attempted rape.  The judge ordered that the sentences be served consecutively, so that the effective sentence was 30 years.  The appellant had been represented by counsel until the close of the defence case, at which point he discharged his counsel and appeared in person from that stage onward and in the subsequent proceedings until the hearing of the appeal before the Board.

4.	He appealed against conviction and sentence and on 18 March 2002 the Court of Appeal (Sawyer P, Ganpatsingh and Osadebay JJA) dismissed the appeal against conviction.  In respect of the appeal against sentence Sawyer P stated:

“With regard to sentence we’ve considered very very carefully all the things the appellant said about the sentence and we’ve also considered carefully all the things that Mr. Gaskin said.  And we have also taken into account the time spent in custody awaiting trial, the fact that it is the first conviction on indictment,and the fact that the minimum sentences provided by law for the more serious offences of armed robbery and rape have been exceeded.  But we also take into consideration the seriousness of the offence for which the jury found the appellant guilty, the offence of robbery which was aggravated with physical violence and the potential danger to the alleged victim and also the attempted rape which was one of the more serious offences; indeed, as was commented, it could have been the full offence that the appellant was charged with, in which case this court would not have been able to do anything.  We allow the appeal against sentence and in mercy to the appellant - -but we can’t go too far -- we reduce the sentences; the sentence for robbery to 15 years, starting from the date of conviction and sentence and we reduce the sentence for the attempted rape from 10 to 7 years. But they will run consecutively.”

The effective sentence was accordingly 22 years.

5.	The appellant was then facing trial on further indictments on which he was charged with the remaining sixteen offences in the series.  Before the conclusion of the hearing in the Court of Appeal he indicated his intention to plead guilty to these offences and he appeared before Moore J again in the Supreme Court on 22 March 2002.  He entered pleas of guilty to all the charges and the judge was given an outline of the facts constituting each offence.  In passing sentence the judge stated that he gave credit for the early pleas, the appellant’s remorse and contrition, which he accepted as genuine, and the fact that most items of valuable property had been recovered.  He identified as aggravating factors the appellant’s poor record, the circumstances of the rapes and use of violence, in particular the use of a knife in one of them and the fact that all of the offences were committed against women, some of them tourist visitors.

6.	The judge imposed the following sentences: 15 years for each armed robbery, the robbery with violence and the attempted robbery with violence, 15 years for the burglary, 20 years for each rape and 7 years for the attempted rape.  He ordered that these sentences should run concurrently with each other but consecutively to the sentences which the appellant was already serving.  The effective total sentence which the appellant was to serve was accordingly 42 years.

7.	By a notice of appeal dated 2 April 2002 the appellant brought an appeal (for which leave was not required in Bahamian law) to the Court of Appeal.  He specifically stated in the notice that he was only appealing against the 20-year sentence for rape that was to run consecutively with the 22-year sentence imposed on 18 March 2002 by the Court of Appeal.  He asked the court to make it run concurrently with the 22 years, alternatively to reduce the length of the consecutive sentence.  He also requested that he should be allowed credit for the time which he had spent in custody on remand before the date of his conviction and sentence in November 2001.  He averred in an affidavit which he swore on 22 February 2006 in support of his appeal to the Privy Council that he had misunderstood the import of the sentences imposed by Moore J on 22 March 2002.  He states that he believed that only the 20-year sentence for one of the rapes was made consecutive to the earlier sentences totalling 22 years and that the other sentences imposed on 22 March 2002 were to run concurrently with those earlier sentences.  He also claimed to have been unaware that the court had power to increase a sentence on appeal.

8.	An affidavit sworn by Mr Francis Mortimer Cumberbatch was put before the Board, in which he stated:

“1. That I am the Assistant Director of Public Prosecutions in the Office of the Attorney General of The Commonwealth of The Bahamas and I am authorized by the Respondent to make this affidavit on its behalf.  That I do so from my personal knowledge and recollections of the events as they transpired before the Court of Appeal on the 8th day of July 2002.

2. That I appeared on behalf of the Respondent before the Court of Appeal in the matter herein on the date aforesaid.  That I made notes of the proceedings before the Court but same together with the relevant files of the Office of the Attorney General cannot now be located.

3. That I do recall the Court expressing surprise at the fact of the Appellant’s appeal being brought before them and raised questions as to why the Appellant felt that in the light of the offences committed by him and the sentence imposed, that Justice Stanley Moore treated him unfairly.

4. That I also recall the Appellant being asked whether he was aware that the Court had the power to increase the sentence imposed by Justice Moore to which he replied in the affirmative.

5. That I do recall that the question as to whether or not the Appellant was seeking to appeal against one or both of the sentences of 20 years imprisonment for the offence of rape was clarified by the Court after discussions with the Appellant whereby it was determined that he was appealing against both sentences of 20 years imprisonment.

6. That I addressed the Court on both of the cases of rape and highlighted to the Court the heinousness of both offences.”

No evidence controverting the averments in paragraphs 5 and 6 of this affidavit was put before the Board and their Lordships consider that those averments must be correct.  They cannot suppose that the court would have left the matter unexplored, when it would have been obvious that an appeal restricted to the issue identified by the appellant would be pointless.

9.	This is borne out by the terms of the judgment of the Court of Appeal (Sawyer P, Ganpatsingh and Ibrahim JJA):

“The decision of the Court is that the appeal against sentence is dismissed.  The order of the trial judge that the sentence of 20 years imprisonment for rape to run consecutive to the sentence now being served is revoked. The sentence imposed for the [first] rape … , where the offence was committed on the 14th of July, 1999, is varied to one of 25 years imprisonment.  And that is to commence from today.  The sentence imposed for the [second] rape … , the offence committed on the 21st of July, 1999, is varied to one of 30 years imprisonment. This sentence of 30 years imprisonment is to run consecutive to the sentence of 25 years imprisonment in respect of [the first rape].”

10.	The issues on which the appellant was granted special leave to appeal were:

(1)	That the Court of Appeal did not have power to increase the appellant’s sentence where only one sentence was appealed against.

(2)	That if the court had power to increase the sentence, the power was not exercised fairly or judicially, in particular because of its failure to give any reasons for the increase in penalty.

Mr Guthrie developed these submissions in his written case and his oral argument before the Board.

11.	Section 12(1)(f) of the Court of Appeal Act provides that a person convicted on information in the Supreme Court may appeal on the ground that the sentence passed was based on a wrong principle of law.  Under section 12(1)(g) he may appeal on the ground that the sentence passed was unduly severe.  Section 13(3) provides:

“On an appeal against sentence the court shall, if it thinks that a different sentence ought to have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as the court thinks ought to have been passed, and in any other case shall dismiss the appeal.”

The Board was also referred to section 20(1) of the Constitution, which requires that if any person is charged with a criminal offence the case shall be afforded a fair hearing.

12.	The argument on behalf of the appellant on the first issue was predicated upon the proposition that the appellant had appealed against only one sentence.  Mr Guthrie argued, assuming this to be so, that the Court of Appeal had no power under the Court of Appeal Act (save on the application of the Attorney General under section 12(3)) to alter any sentence which was not the subject of an appeal brought by the defendant.  There is no express provision in Bahamian law corresponding to that contained in section 11(2) of the Criminal Appeal Act 1968 in England and Wales, the material part of which reads:

“Where the Crown Court in dealing with an offender … has passed on him two or more sentences in the same proceeding … an appeal or application for leave to appeal against any one of these sentences shall be treated as an appeal or application in respect of both or all of them..”

Mr Guthrie further submitted that it would not be possible to defend the increase in the sentence for the second rape by resorting to section 9 of the Bahamian Court of Appeal Act in order to apply section 11(2) of the English 1968 Act.  Section 9 reads:

“Where in any case no special provision is contained in this or any other Act, or in rules of court, with reference thereto any jurisdiction in relation to appeals in criminal and civil matters shall be exercised by the court as nearly as may be in conformity with the law and practice for the time being observed in England by the Court of Criminal Appeal and the Court of Appeal respectively.”

Section 11(2) of the 1968 Act is balanced by section 11(3), whereby the Court of Appeal in exercising its powers to vary a sentence or sentences must do so in such a way that “taking the case as a whole, the appellant is not more severely dealt with on appeal that he was dealt with by the court below.”  This could not sit alongside section 13(3) of the Bahamian Act, and therefore, counsel submitted, the court did not have power to consider the second rape sentence.

13.	Their Lordships consider that the appellant’s argument that section 11(2) of the 1968 Act cannot be applied is correct.  Section 13(3) of the Court of Appeal Act specifically permits the Court of Appeal to pass a more severe sentence on appeal than that imposed by the trial judge.  This constitutes a “special provision” for the purposes of section 9, so that it is not possible to apply section 11(3) of the English 1968 Act as a default provision.  This subsection has to be read together with subsection (2) as part of an overall provision relating to the powers of the Court of Appeal in respect of sentences.  Their Lordships do not consider that it is possible to pick and choose those portions of the 1968 Act which favour an appellant, while omitting other closely related portions. They accordingly are of the view that section 11(2) cannot be applied and that the Court of Appeal cannot exercise the power to consider sentences not the subject of an appeal.

14.	Their Lordships consider, however, that the underlying premise of the appellant’s argument, that the Court of Appeal had only one sentence before it as the subject of appeal, is incorrect.  For the reasons which they have set out in paragraph 8 of this judgment they are of opinion that the Court of Appeal discussed the extent of the appeal in the course of the hearing before it and dealt with the case on the basis that it was being brought against both rape sentences.  Mr Guthrie’s argument on the first issue must therefore fail.

15.	On the second issue Mr Guthrie submitted that the power to increase the appellant’s sentence had not been exercised fairly, because of the failure on the part of the Court of Appeal to warn the appellant that it was considering an increase, to give him an opportunity to make an application to withdraw his appeal and to give reasons for its decision to increase the length of the sentences.

16.	The Board has had considered the question of increasing sentences on several occasions since the Court of Appeal gave its decision in July 2002.  The principles which have now been established can be summarised in the following propositions:

(a)	The power to increase a sentence must be sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate; in all cases the reasons for exercising this drastic power must be explained: Kailaysur v The State of Mauritius [2004] UKPC 23; [2004] 1 WLR 2316, para 9, per Lord Steyn.

(b)	An appellate court which is considering an increase in sentence should invariably give an applicant for leave to appeal or his counsel an indication to that effect and an opportunity to address the court on this increase or to ask for leave to withdraw the application: Williams v The State [2005] UKPC 11, [2005] 1 WLR 1948, para 10; Skeete v The State [2003] UKPC 82, para 44.

In Skeete v The State the appellant had appealed only against conviction and had not brought any appeal against sentence, while in Williams v The State the matter before the court was an application for leave to appeal, as distinct from a full appeal.  In Williams their Lordships distinguished on the latter ground the decision of the Divisional Court in R v Manchester Crown Court, ex parte Welby (1981) 73 Cr App R 248, in which Lord Lane CJ stated that once the hearing of an appeal against sentence has started, it will be only in exceptional circumstances that leave to abandon it will be granted.  The reason is clear, that if the law were otherwise an appellant could attack a sentence and then, if the reaction of the appellate court was unfavourable and he appeared to be at risk of an increase, he could withdraw the appeal with impunity.  Their Lordships appreciate the distinction, but consider that the same principles should apply to appeals as to applications for leave to appeal, save that leave to withdraw a full appeal should be given rather more sparingly.  They have no doubt that in all cases where the appellate court is considering an increase it should give a clear indication to that effect and give the appellant or his counsel an opportunity to address them on the point, since there are specific considerations relating to a possible increase, as distinct from those relating to the imposition of the original sentence.

17.	Their Lordships do not consider that the present case reached the threshold of manifestly inadequate sentences required to trigger the jurisdiction to increase them.  Moreover, it must have been apparent to the Court of Appeal that the appellant, at least at the outset of the proceedings, suffered from some confusion about the sentences and the extent to which they were concurrent or consecutive and, possibly, ignorance about the power of the court to increase sentences.  In these circumstances it was incumbent on the court to make the situation as clear as possible and to give the appellant a timely warning and a full opportunity to consider his position and make any appropriate submissions.  The Board is impelled to the conclusion that the absence of these safeguards denied the appellant his constitutional right to a fair trial.  It must accordingly allow the appeal and set aside the order of the Court of Appeal revoking the sentences imposed by Moore J on 21 March 2002 and varying them upwards.  The effect will be to leave those sentences in operation as imposed by Moore J.

18.	Since these were the only issues on which the appellant had leave to appeal to the Board, their Lordships do not propose to express any opinion on the other matters raised by the appellant in his notice of appeal to the Court of Appeal (a) the propriety of ordering that some sentences in respect of offences forming part of a series should be served consecutively to sentences imposed for other offences in that series, taking into account the principle of totality of sentences (b) the date from which the sentences should have been made to run, with particular reference to the Board’s decision in Ali v The State [2005] UKPC 41, [2006] 1 WLR 269. Those issues have not been dealt with in any detail by the Court of Appeal and it would in principle be open to the appellant to seek to pursue them further before the court.  Whether he should follow that course, in the light of the views expressed by the court, as outlined in Mr Cumberbatch’s affidavit, is a matter for the appellant to decide after receiving and considering the advice of experienced counsel.

19.	This appeal was heard by the Board in The Bahamas, on the first occasion on which the Judicial Committee of the Privy Council has sat outside London to hear appeals.  Their Lordships do not wish to let the occasion pass without marking its unique nature.