DPP: Judge ignored law in sentencing murderer

As Director of Public Prosecutions (DPP) Paula Llewellyn appeals the “unduly lenient” sentencing of murder convict Lindell Powell, she has asserted that the judge “misdirected himself” when he did not impose life imprisonment.

Powell pleaded guilty to the January 2017 murders of Oral McIntosh and Ida Clarke and was sentenced last December to 12 years’ imprisonment on both counts.

With the sentences running concurrently, Powell would only serve 12 years and Supreme Court Justice Bertram Morrison, who tried the case, ruled that he would be eligible for parole after serving 10 years.

In the historic prosecutorial appeal, which began on Monday, the DPP recommended a sentence of life imprisonment with eligibility for parole between 20 and 28 years for the murder convict.

Llewellyn told the Court of Appeal that the judge “unwittingly strayed into the twilight zone of judicial arbitrariness”, when he acknowledged that the penalty for murder was life imprisonment, juxtaposed 15 years as the normal range – where the mandatory minimum in terms of eligibility for parole is 15 years – and then handed down a sentence of 12 years with parole after 10 years.

The DPP said it was a total misapplication of the law, given that the murders were committed with a gun.

“Having regard to the particularly egregious natures of the murders involved and despite the appellants guilty plea on both counts, a sentence of life imprisonment would have been appropriate,” Llewellyn told the court.

The DPP said the agreed facts showed that Powell put thought into the murders he committed in January 2017 in Westmoreland.

“He went to where Ida Clarke lived on some mountain … . In respect of the McIntosh murder, this was at 5 o’ clock in the morning. Mr McIntosh was in his home … . He was executed because he had a licensed firearm and then they stole from him,” Llewellyn detailed.

She added that the sentence of 12 years did not reflect the gravity of the offences or the public’s concern about murders being committed by guns.

The DPP said such lenient sentences have the potential to undermine the public’s confidence in the administration of justice.

“In this case, the learned trial judge, in effect, ignored the law and misdirected himself and in the alternative, in any event, the sentence of 12 years was also unduly lenient,” Llewellyn said.

Attorney-at-law Dionne Meyler Barrett, who is representing the Powell, said that while the DPP made a constant reference to agreed facts in her submission, there were no agreed facts. At best, she said, they were extracted facts.

“If you look at the document, it is type written by Mrs Martin-Swaby, it doesn’t have a date on it, it doesn’t have my signature, and it is not in the form that we would call agreed facts,” she said.

Further, she said that a full disclosure was not made until, on or after November 8, 2021 – the date on the indictment.

Meyler Barrett submitted that an indictment is a necessary and relevant part of any disclosure that the Crown is to make to a defendant.

The attorney said that the sentencing judge had made it very clear that he was using Section 3 (1C) (b) (ii) of the Offences Against the Person Act, as she reiterated the importance of the indictment.

That section of the law allows the judge to impose any other sentence of imprisonment, that the court shall specify, if not less than 10 years.

“The Crown indicted for murder full stop. They said nothing about a robbery, nothing about anything else on their indictment other than murder. In that regard, it was open to the judge to put the murder under that category,” Meyler Barrett explained.

The court proceedings will resume today at 9 a.m.

judana.murphy@gleanerjm.com