The Queen v Hurley
| Jurisdiction | Barbados |
| Judge | Moore, C.J.,Williams, J.A. |
| Judgment Date | 08 July 2011 |
| Neutral Citation | BB 2011 CA 15 |
| Docket Number | Director of Public Prosecutions Reference No. 2 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 08 July 2011 |
Court of Appeal
Moore, C.J. (Ag.); Williams, J.A.;Mason, J.A.
Director of Public Prosecutions Reference No. 2 of 2010
Mr. Charles Leacock, Q.C., Director of Public Prosecutions and Mr. Lancelot Applewhaite for the Crown.
Mr. Desmond Sands and Mr. Vincent Watson for the respondent.
Criminal practice and procedure - Sentencing — Manslaughter — Whetehr sentence of 12 years' imprisonment too lenient — Respondent did not fully acknowledge crime — Previous conviction for manslaughter and concealing evidence — Custodial sentence must reflect the censure of society for the respondent's shocking crime. Sentence of 20 years' imprisonment less time already served and one year for double jeopardy substituted for 12 years.
Moore, C.J. (Ag.): Before this Court is a reference by the Director of Public Prosecutions (DPP) under section 36(B) of the Criminal Appeal Act, Cap. 113A (the Act) for review of a sentence of 12 years' imprisonment imposed on the respondent on 23 March 2010, on the ground that the sentence was unduly lenient.
On 12 October 2009 the respondent and Kevin Roland Codrington were arraigned on the charge that they, sometime between the 9th and 15th days of February 2006, murdered Ezra Rochester. Both men pleaded “Not Guilty to Murder, Guilty to Manslaughter”. The DPP accepted the pleas. The Facts
The deceased and Codrington had a homosexual relationship. Codrington and the respondent, Hurley, hatched a plan to rob the deceased.
On Friday, the 10 February 2006, Eletha Rochester, the mother of the deceased reported her son missing to Holetown Police. He usually visited her every day but she had not seen him since Tuesday, 7 February 2006. Police investigations revealed that the deceased left his residence about 6:27 a.m. on 9 February 2006 and used the motor car XA-4754 to take Nicholas Cox to his work place at Gall Hill in the parish of Christ Church. He arrived at Cox's work place at about 6:57 a.m.. At that time he was wearing light blue jeans, a red polo shirt, a pair of brown slippers, a blue digital watch and a pair of metal frame spectacles. He also had in his possession a Motorola V500 cellular phone.
About 9:00 a.m. that day the deceased had arranged with his brother Stephen Rochester, to pick up their sister. He never did. Sometime between 9:45 a.m. and 10:00 a.m., on the said 9 February whilst driving his motor car along Oxnard's Road in the parish of St. James, the deceased stopped and spoke to Prince Moore. He and Moore knew each other. The deceased also picked up Codrington who sat in the front passenger seat of the motor car.
That said morning the respondent Hurley drove his stellar motor car registration number MG-34, to the area at Hangman's Hill,
St. Thomas, which had been earlier pointed out to him by Codrington and he waited for the deceased and Codrington to arrive. The deceased arrived accompanied by Codrington. The deceased parked his motor car. The deceased was then attacked by Hurley. Codrington joined Hurley in the attack. They used a knife, a piece of pipe and a stone with which they inflicted injuries to the deceased from which he died. They then dragged the deceased's body into the bush and covered it with a plastic bag.
Hurley replaced the number plates on the deceased's car with plates bearing the number 0–905, which was registered to Ione Wiggins of Belair No. 2, St. George. They threw away the piece of pipe they had used to inflict injuries to the deceased and they left the scene, Codrington driving the deceased's motor car and Hurley driving his car. Hurley placed the knife which was used to stab the deceased in his (Hurley's) car.
Later that day, both men went to Pavilion Road, Bank Hall, St. Michael and Hayden Husbands saw them with the deceased's motor car, which by that time bore the registration number 0–905. Hayden Husbands subsequently identified both of them in an identification parade. While the car was parked in Bank Hall, someone stole the keys. On the morning of 10 February 2006 Codrington obtained the services of a locksmith who unlocked the deceased's car and made two keys for the said car.
On Saturday, 11 February the deceased motor car bearing licence plates with the registration number G-905 was found at Block 2, Haynesville, St. James. The police took the said motor car to Holetown Police Station.
On the 15 February 2006, both men were taken into custody by the police. Codrington was wearing a belt which was subsequently identified as the deceased's belt by his sister Beverley. A search was conducted of Hurley's motor car registration MG-34 which was parked at Haynesville and the knife which was used to inflict the injuries on the deceased was found in the said car. Codrington took the police and showed them where the deceased body was hidden.
Hurley told the police that on 10 February 2006, Codrington gave him $90.00 Barbados Currency with which he bought gas for his motor car.
On the said date Codrington took the police to Haynesville, St. James where they recovered the deceased's spectacles, his house keys, a pair of leather sandals and the licence plates, registration number) CA-4754. The spectacles and the keys were found in the garbage can and the sandals and the number plates in the bush.
On the 16 February an identification parade was conducted at the District ‘E’ Police Station and Prince Moore identified Codrington as the person he saw getting into the deceased's car on the morning of 9 February 2006. The locksmith also identified Codrington as the person to whom he rendered services in unlocking the car and making the set of keys. Hayden Husbands also identified Codrington and the respondent as the persons associated with the deceased's car at Bank Hall, St. Michael.
Both men made confessional statements. The statement of respondent Hurley is set out below:
“Last Tuesday Kevin and me drove up in St. Thomas in my car. Kevin show me a spot that he and he friend does go. We drove and went back home. Thursday 9th 2006 I was home working on my car when Kevin tell me that he going to get money from he friend and to meet he on the same spot that he show me. I tell he that my car did not have in gas and he give me ten dollars to put in it. So I went to the Shell Redman Village and put in gas. After that I went to the spot and park a few ways away. I get out of my car and I wait for him to come. When he come he was in a white car with another man that I did not know so he park the car in the cart road and I wait behind the car for a few minutes to see what was going on. I saw Kevin in front seat of the car on the passenger side and his friend in the driver side sitting down. Quickly after that I saw his friend on top of him sitting down on him. Quickly after that a struggle start between Kevin and his friend. I saw his friend get out of the car naked and bleeding and he run toward the road and Kevin was running behind him with a knife in his hand and a rock in the other hand. Kevin den pelt the rock at him and it hit he to the back of his head and he fall down. He den get back up stumbling so I saw a piece of pipe on the ground and I pick it up and run towards them. I catch up with them and I hit him with the pipe on his hand. When I hit he, he stumble and blow hard and fall down. Kevin den grabble he up and I saw the knife on the ground and I take it up and I slash he twice and he blank out. I see he wasn't moving so I say he dead. So I tell Kevin let we left from about here, so we drag he from there in the bush and Kevin put a bag over him. We went back and Kevin told me to change the number plates, so I had some number plates mark G-905 and I put them on the car. So I get in my car and went home and get ready for a interview at KFC. So the next day I get ninety dollars and a cell phone from Kevin when the car was being tow away from in Bank Hall.”
The medical evidence of Dr. Stephen Jones disclosed that the deceased sustained the following injuries:
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(a) A 6 by 4 cm wound located on the left side of the upper chest and which was in contact with the midline and further located 4cm below the clavicle. Marked maggot infestation as previously indicated was present. Within the chest cavity there was an incise wound on the upper left lung.
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(b) A five by three cm wound located on the right side of the upper chest resulting in exposure of the fourth and fifth ribs which had incised wounds of the costochondral cartilage.
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(c) A comminuted fracture of the right humerus at its midshaft.
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(d) A laceration incision type injury located on the left parietal scalp.
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(e) Fracture of the mandible with complete separation at the midline arteriole.
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(f) Severe comminuted fracture of the right temporal bone with fractures extending upward and backward over the vertex and occipital bone.
Death was as a result of severe traumatic head injuries and stab wounds to the chest.
The respondent was aged 29 years old at the time of the offence. He had four convictions — one of which was for manslaughter for which he was sentenced to 2 years probation on 27 February 1995.
In the pre-sentence report and upon the allocutus the respondent said that he did not intend to kill the deceased. He also expressed sorrow over the death. The respondent's mother died when he was 3 years old and he spent his early childhood in a children's home. The pre-sentence report and the psychological report addressed this unfortunate period in his life. The psychological report strongly recommended that he should participate in vocational and educational programmes. According to the report, it was the respondent's request to participate in treatment programmes which would help him address his emotional issues.
The trial judge took all relevant matters into account. She considered the...
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