BETWEEN THE STATE RAMDEO RAMDEEN BHAGWANDEEN

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Criminal Number S 045 /06 BETWEEN THE STATE V RAMDEO RAMDEEN BHAGWANDEEN Before Boodoosingh J. Mr A. Stroude and Ms A. Mohammed for The State Mr D. Bailey for the Accused Delivered: 13 February 2008 REASONS FOR SENTENCE 1. Ramdeo Ramdeen Bhagwandeen has pleaded guilty to attempted murder of Routie Sherry Maraj (count one), wounding with intent of Sheila Gangaram 1

2 (count three) and assault occasioning actual bodily harm of Sheila Gangaram (count four). No evidence was offered on counts two and five of the indictment. 2. The facts are as follows. For about five and a half years, the accused had a common law relationship with Sheila Gangaram. During that time the accused lived with her at her home in Freeport. In December 2002, a protection order was made excluding the accused from that home. That order was made on the application of Gangaram s daughter, Routie Sherry Maraj. After the accused was excluded from the home, a visiting relationship continued between Sheila Gangaram and the accused. She used to visit him at his sister s house in Carapichaima where he had gone to live. The accused, it seems, desired this relationship to continue. 3. On 11 April 2003, at about 11 am the accused went to Ms Gangaram s home in a friend s car. He called Ms Gangaram outside. The accused tried to force her into the car. Ms Gangaram fought back and in the process her lip was burst up. The accused then left without her. About 4.30 pm, the accused returned and entered through a side gate to the kitchen area where Ms Gangaram was cooking. She walked up to him and he asked her if she was going with him. She said no. He then took her glasses and went away with it. The accused then returned 20 minutes later. He came through the front door with a cutlass. He came up to Ms Gangaram in the kitchen. She and he began to struggle for the cutlass. They fell down. He pulled away the cutlass from her and chopped her on the wrist. The accused then ran to the room where Routie Sherry Maraj, aged 18 years, was. He said, I come to kill you. The accused forced himself into the room and fired a chop at Ms Maraj which connected her left hand and forearm. He was about to make another chop when she held the cutlass with her right hand. The accused was disarmed and left. Both victims were taken for medical attention. 2

3 4. The medical report for Ms Gangaram showed an eight cm laceration on the dorsum of her left hand which was deep and involved tendons and bone and a four cm laceration on her right thigh. Sherry Maraj sustained a 15 cm laceration on her left hand, palm surface, from the fifth finger to her forearm involving bone and tendon and a six cm laceration to the web space between her right thumb and right index finger. These injuries were caused by a sharp instrument with severe force. 5. The principles of sentencing are well known and set out in Benjamin v R (1964) 7 WIR 459 per Wooding CJ. The objectives are to punish the offender for the act, to deter the offender, to deter others, to prevent the offender from again offending and rehabilitation. In recent times, the concept of restorative justice has been advanced as a desirable course, but the available sentencing options do not allow for their full operation. Courts must do the best they can within the limited options at their disposal. 6. I was referred to various cases. Among these were Mark Cudjoe v The State (1986) 43 WIR 367. In that case the accused was 20 years at the time and was found guilty by the jury of wounding with intent. He chopped the victim on his neck, chest, shoulder and hand. The neck injury was considered dangerous to life. These chops were inflicted while the victim was on the ground. He was sentenced to 10 years imprisonment with hard labour. Another case was The State v Moonais Rudal and Motilal Harryram Criminal Appeal No. 98 of 1998, unreported. The accused were convicted by the jury of causing grievous bodily harm where the victim was doused with gasoline and set afire. Some compensation was paid. The court of appeal increased the judge s sentence to five years imprisonment with hard labour with credit being given for the ten months already served. A third case was Deodath Ramlakhan v The State, Criminal Appeal No. 46 of 1999, unreported, per de la Bastide CJ, where the victim s left arm was amputated by a chop wound and a deep cut was made to the right arm. In that case the jury found the accused guilty. A sentence of eight 3

4 years imprisonment was imposed by the trial judge and upheld by the court of appeal. 7. The accused s position shows he is 59 years old. He has no children. He has limited vision. Owing to an accident, he has no vision in his left eye and he is short sighted in his right eye. He has no pending matters. He had one conviction in 1975 for larceny of a goat. He grew up in humble circumstances and his education was limited. He learned a trade as a mason, and sold oysters. He has also done odd jobs and has worked briefly with the Unemployment Relief Programme. He had a previous common law relationship and one with Ms Gangaram. 8. According to Mr Bailey, he assisted with the construction of Ms Gangaram s present home contributing materials and his labour as a mason. His conduct, according to Mr Bailey, was motivated by the frustration of being excluded from the Gangaram home and the effect this had on his relationship. He had wanted to continue this relationship and to have the benefit of a family, as he grew older. He saw Ms Gangaram s daughter, Ms Maraj, as being to blame for the change in his circumstances and felt hurt by being put out of the home he had contributed to. According to the probation officer s report the extent of his contribution was disputed by Ms Gangaram, although it is accepted that he did assist. In that report the accused expressed his continuing love for Ms Gangaram and that it had been his hope for them to be together for the rest of their natural life. 9. The accused, however, in the probation report advanced a different version of events which led to the concern that his plea was equivocal. I undertook an inquiry into this and the accused conceded that he had given an untrue version of events to the Probation Officer in panic and in hope of a more lenient sentence. He however affirmed that his plea was guilty and that he accepted the prosecution version of events and that his plea of guilty was of his 4

5 free will. He indicated he was sorry for what he said to the probation officer and that he was also sorry for the harm he had caused to the victims. 10. In the accused s favour is that he pleaded guilty and did so at the earliest opportunity after receiving advice from his trial lawyer. The victims were saved from having to relate their ordeal in court. He gets credit for this. Also, although the accused has one conviction, this was over 30 years ago and was not for a violent crime. I do not therefore give weight to this conviction. The accused has also kept away from the victims since this incident. He indicated that after his attack on the victims, he was saving his earnings to offer compensation to them. He did this by giving his brother in law, with whom he lived, the money to keep, but this was used up leaving him without anything. However, his family has been able to raise the sum of $5, and a further sum of $2, is to be paid within 2 weeks. This has been accepted by Ms Gangaram. Since the incident in 2003, he has kept out of trouble. The accused has spent two periods in custody, four and a half months before he received bail in the Magistrates Court and one month since January Mr Bailey has asserted that the accused received a little poetic justice in that piece of his thumb was severed at a poultry depot where he worked after the incident. 11. Major aggravating circumstances of this case are two persons were attacked; the victims were defenceless women; the injuries to the hands were significant; Ms Gangaram does not have the full functioning of her hand; a protection order was subsisting at the time in relation to Ms Maraj; and these victims were traumatised which no doubt persists to today. 12. The aim of sentencing relevant to this case is to punish the accused for his act. The secondary purpose is to deter others. In my view, the other aims set out in the Benjamin case do not significantly impact. The accused has shown remorse. This was a violent, but isolated act. The circumstances are not likely to recur concerning the accused. In the almost five years which have 5

6 passed since his attack, he has kept away from the victims and from trouble. He is unlikely to repeat such an offence. The accused appears to have learnt the lesson that violence is not an acceptable response to his frustration. He therefore does not need personal deterrence or to be prevented from future acts. 13. Concerning the deterrence aspect of a sentence, there is some debate on when such sentences are effective. In her book, How Judges Sentence, Professor Geraldine Mackenzie notes: 1 By punishing the offender before the court, general deterrence aims to discourage future potential offenders from their offending behaviour, and consequently prevent crime. In theory at least, the idea of sentencing an offender before the court in order to deter others from committing similar crimes, because of fear of the consequence has superficial appeal. In practice, however, a number of factors would have to be present for such an outcome to occur. The future potential offender would have to know of the original sentence and form the view that such a sanction would also apply to them. The offence would have to be one where there was at least some degree of pre-planning (as opposed to an offence committed on the spur of the moment, such as one committed whilst provoked by another). The offender would also need to be acting of their own free will at the time of the offence, that is, not affected by drugs or alcohol to such an extent that this affects their judgment in committing the offence. Because of the lack of these factors in many cases, general deterrence can cause practical problems as a justification for punishment and has the other disadvantage of potentially providing for an unfair punishment. In a recent major study, general deterrence has been shown to work in limited circumstances where the offender is made aware of the risk of being punished. In relation to increasing severity and a deterrent effect, the authors concluded that there is as yet no firm evidence regarding the extent to which raising severities of punishment would enhance deterrence of crime. 14. Professor Mackenzie s caution is noted. Notwithstanding this, the guidance of the Court of Appeal is that courts must consider the signal it sends to the community (see, for example, Kangaloo JA in The State v Emmanuel Toney, unreported, Cr. App. No. 140 of 1998). The signal being sent to the community here is that violence against women will not be condoned. Men must 1 Geraldine Mackenzie, How Judges Sentence, Federation Press, 2005 at pages 100 to 101 6

7 understand that they do not own women. When women say no to them, men must accept this and learn to move on. 15. In addition, the accused s act itself demands punishment, and a custodial sentence is necessary. Using a cutlass against two women is plainly inexcusable. 16. At the same time, sentencing must relate to the peculiar facts of each case. No two cases are exactly alike. This accused is 59 years old and blind in one eye. He has pleaded guilty, and apart from his one old conviction, he has a clean criminal record. He has spent five and a half months in remand. His family has paid compensation, albeit a small amount considering the suffering the victims endured. The sentence must not be a death sentence for him especially given the existing prison conditions. 17. I also note that the starting point in deciding the appropriate term is not usually the maximum. The maximum penalty is generally reserved for the most heinous manner of committing the offence or for repeat offenders. Here there were significant injuries to the hands of the victims. Count one is for attempted murder probably because of the words used by the accused before he inflicted the chop wound. The facts relevant to this count more realistically resemble wounding with intent to do grievous bodily harm. 18. Owing to the exceptional circumstances of his age and disability, taking account of the five and a half months spent in custody, and balancing the various factors for and against the accused, the appropriate sentence in my view is as follows. 19. On count one of attempted murder of Routie Sherry Maraj, the accused will serve five years imprisonment. On count three of wounding Sheila Gangaram with intent, the accused will serve four years imprisonment. On count 7

8 four of occasioning actual bodily harm, the accused will serve two years imprisonment. The sentences will run concurrently. Ronnie Boodoosingh Judge (Acting) 8