Attorneys from the office of the Director of Public Prosecutions on Wednesday convinced the Court of Appeal that a sentence handed down to a gunman less than a year ago was “fair” and “appropriate”.
The panel of appeal judges, comprising Justices Rajendra Narine, Francis Belle and Jefferson Cumberbatch, unanimously affirmed the conviction of Pearson Antonio Bayne, although they did find fault with some of the “process” of the trial judge’s sentencing exercise.
In September last year, when he appeared before Justice Christopher Birch, Bayne pleaded guilty to possession of a Smith and Wesson .38 calibre revolver and six rounds of ammunition.
The offences were committed on February 13, 2020.
In November that year, the St Philip resident was handed a starting sentence of ten years at HMP Dodds, which was increased by a year, bringing it to 11 years. Bayne was then granted a reduction for his cooperation with police, which took the sentence back to ten years.
He was also given a one-third discount for his guilty plea and credited for the time he had spent on remand, leaving him with 2 148 days, or five years and 328 days, left to be served in prison.
However, he appealed the sentence through his attorney Ryan Moseley on several grounds, including that he was not afforded a fair trial because he did not get the appropriate assistance from the judge in presenting his mitigation; and that he was not granted the right to cross-examine the probation officer on the pre-sentencing report.
Justice Narine, who delivered the court’s decision, pointed out that the appellant was no stranger to the criminal justice system, having 13 prior convictions.
“An examination of the trial record shows he did a fairly good job of presenting his plea in mitigation,” the appeal judge said, adding that a probation officer had assessed Bayne as being at a high risk of reoffending given his criminal record and several other factors.
“Having regard to those factors which were set out by the probation officer, it is difficult to see how a cross-examination of the probation officer would have assisted the appellant. In fact, the trial judge seems to have gone through the report with the appellant and . . . he himself indicated that he was satisfied with the report. So that takes care of the first limb,” Justice Narine said.
On the issue that the sentence was excessive, Moseley submitted that the judge should have used a starting sentence of seven to eight years in prison.
Justice Narine explained that the court took note of the starting sentence and the judge could no be ‘faulted’ for using that starting point.
However, the panel of judges said they could find “no justification” for increasing the starting point to 11 years.
Narine added: “It seems to be wrong, in principle, since in arriving at a starting point, the sentence must take into account the mitigating and aggravating factors of the offence. So, having arrived at a starting point of ten years we see no basis for the upward adjustment of the starting point.”
He said the appeal judges also took into consideration Bayne’s 13 previous convictions.
“We have noted that the trial judge does not seem to have balanced the antecedents of the appellant against the mitigating factor of his cooperation with the police at the time of his arrest. In our view, if one carries out that balancing exercise of the mitigating and aggravating factors of the offender there ought to be no adjustment to the starting point,” Justice Narine said.
The appeal judges were in agreement with the judge’s one-third discount as well as the deduction for time that Bayne had spent on remand.
“So that, although we have disagreed in principle with the process by which the trial judge arrived at the first and second steps of the sentencing exercise, in the result, we agree with the sentence. Mathematically, it will remain the same, having made the adjustment that we have found needs to be made.
“The sentence which was imposed by the trial judge is affirmed by this court . . . . The appeal is dismissed,” Narine said of the matter in which Senior Crown Counsel Oliver Thomas and Crown Counsel Joyann Catwell represented the Crown.