Judge did not draw sentence out of thin air, defence lawyer says
Published:Wednesday | June 1, 2022 | 12:13 AMJudana Murphy/Gleaner Writer
Urging the Court of Appeal not to disturb her client’s sentence, attorney-at-law Dionne Meyler Barrett has argued that the judge was not compelled to consider life imprisonment for murder convict Lindell Powell.
Powell pleaded guilty to the January 2017 murders of Oral McIntosh and Ida Clarke and was sentenced last December to 12 years’ imprisonment. The sentences are concurrent.
Supreme Court Justice Bertram Morrison, who tried the case, ruled that he would be eligible for parole after serving 10 years.
Citing R v Alpha Green, Powell’s attorney said that a sentence should only be altered when the judge appeared to err in principle.
Submitting that no such error was made, Meyler Barrett argued that the sentence was anchored in the Offences Against the Person Act and “was not drawn from the air”.
Section 3 (1C) (b) (ii) of the law allows the judge to impose any other sentence of imprisonment, which the court shall specify, if not less than 10 years.
The matter currently before the Court of Appeal is the first case brought by prosecutors since the law was changed last year giving limited right of appeal against acquittals and sentences.
Powell’s attorney said that Director of Public Prosecutions (DPP) Paula Llewellyn has made no real quarrel about the murder count relating to Clarke.
Meyler Barrett said that Powell pleaded guilty and advanced his own facts of the events, adding that he was not indicted with murder pursuant to a robbery, nor was he indicted for murder and robbery.
“He acted certainly in accordance with the law. It cannot be that judges will be allowed to, or will now be asked to, add on indictments of the Crown or to interpret their indictments,” the defence lawyer said, insisting that Powell did not pull the trigger.
Powell’s leader at the time shot McIntosh, said Meyler Barrett, adding that her client had told the probation officer that it was at that moment that the assailant had pulled his gun.
“His leader then gave him Mr McIntosh’s gun to keep and they ran to the bushes,” she said.
Meyler Barrett said her client was indicted with murder and that the law does not mandate a sentence of life imprisonment for that crime.
The defence attorney added that failure to state the same is a “dereliction of duty by the Crown and a defect that goes to the root of the indictment”.
She said had it not been for the cooperation of her client in both cases, he would not have been convicted.
“These matters were committed from 2017, and up until 2021, they could not put it on the trial list. No evidence but what he said from his mouth,” she said.
“There is no case that the appellants have cited where the circumstances are similar in any material particular. We have two separate murders that they put together on one indictment,” Powell’s attorney said.
On Monday, the DPP argued that the sentence was “unduly lenient” and recommended that Powell be sentenced to life imprisonment with eligibility for parole between 20 to 28 years.
“That reeks of injustice and it does so because at no point throughout this matter was there any talk of 28 years,” Meyler Barrett said.
“They don’t say so in their submissions either. They asked for life for 20 but in their oral they go to 28. Is this person, Lindell Powell, not a man? Hasn’t he offended? Hasn’t he accepted his responsibility?”
The DPP had also said that such lenient sentences have the potential to undermine public confidence in the administration of justice.
Court of Appeal justices Frank Williams, Nicole Simmons, and Evan Brown heard the matter.