Appeal judges to rule on severity of punishment in case of breach

The Barbados Court of Appeal will tomorrow hand down its decision on a magisterial sentence appeal brought by Jamaican visitor Dean George Scott who is currently serving six months at HMP Dodds for breaching quarantine directives.

That decision will be delivered at 10 a.m. during a virtual sitting of the No. 1 Supreme Court.

On December 29 last year Scott, a 49-year-old mason, who was staying at a hotel in Worthing, Christ Church, pleaded guilty to contravening Paragraph 14 of the Emergency Management (COVID-19) Curfew (No.4) Directive 2020 when he left quarantine at the St Lucy District Hospital without reasonable explanation.

He told the District ‘A’ Magistrates’ Court back then that he left the premises on December 7, 2020, to purchase “Fanta and other stuff” at a shop.

Before Chief Justice Sir Patterson Cheltenham, Madam Justice Margaret Reifer and Justice Rejendra Narine this morning defence attorneys Andrew Pilgrim Q.C. and Michelle Russell argued that the island’s Chief Magistrate fell into error when he moved from a $6 000 fine to six-month sentence after Scott said he had no money to pay the amount put forward by court.

Addressing the panel of judges at today’s virtual sitting Pilgrim pointed to similar cases where fines were imposed, while others were reduced after taking into account the person’s means. He pointed to one instance where an accused paid an $800 forthwith fine last November and another case involving a female footballer, where there was “a reprimand and discharge”.

“So in a case like ours I am saying that I imagine that the court may have started at $6 000, done further inquiries . . .  realising that $6 000 was inappropriate, the first step is to come down from that and see what could this person possibly manage. But when you put them in a position where you remain at that extremely high tariff you don’t give the option to pay at all.

“It would seem to us in all the circumstances of this case the magistrate really got it wrong. The Penal Reform Act is there specifically to avoid things like this happening. Incarceration is to be understood by all of us as an absolute last resort. You cannot say ‘he cannot pay a fine so I going back to incarceration’. A court cannot function in that way. That is not the purpose of the Act,” Pilgrim stated.

“There is no consistency in the way the magistrate operated in respect to these matters . . . . And not taking into account that there was a guilty plea on the first occasion, not taking into account that he is a first-time offender,” the attorney said.

Pilgrim further submitted that there was no “real thorough investigation” of Scott’s means.

“This man was treated differently to everyone else. No one else has been incarcerated under this Act, other than by way of remand and there are more than ten cases. So, is he just unlucky? This is an outrage,” he added.

However, public prosecutors for the respondent Senior Crown Counsel Oliver Thomas and Crown Counsel Danielle Mottley argued that the sentence imposed by Chief Magistrate Weekes was “proportionate to the gravity of the offence” having regard to all of the circumstances.

Thomas stated the sentencing approach used had always been consistent as in the first instance the chief magistrate always began with fines. “It just so happened that those persons were in a position to pay fines but the key point here is that the approach has always been consistent – fines and in default, imposition of a custodial sentence which is the lawful sentence under the directive. In fact, Parliament has regarded this offence as so serious that it is within the discretion of the sentencer to impose a combination of  both.

He also submitted that punishments such as a suspended sentence, reprimand and discharge or community service orders were not appropriate punishments for these types of offences.

“It is understood that one COVID infraction would be one too many,” he added saying that such an offence cannot be compared to other charges. “A COVID infraction affects the community on a whole . . . if someone breaches COVID [directives] it potentially affects several persons

“We submit that this sentence is proportionate to the gravity of the offence,” the senior crown counsel told the Court of Appeal judges.

(fernellawedderburn@barbadostoday.bb)