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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App. Nos. 34 and 35 of 2015

BETWEEN

LYNDON RAMAH - Appellant No. 1

RAY OLIVERRIE - Appellant No. 2

AND

THE STATE

Respondent

PANEL:

P. Weekes, J.A.

A. Yorke-Soo Hon, J.A.

M. Mohammed, J.A.

APPEARANCES:

Mr. B. Dolsingh and Ms. T. Dolsingh for Appellant No. 1

Mr. D. Khan and Ms. U. Nathai-Lutchman for Appellant No. 2

Mrs. J. Honore-Paul, Deputy D.P.P. and Mrs. A. Teelucksingh-Ramoutar, Assistant D.P.P. for the

Respondent

DATE OF DELIVERY: 5th July, 2016

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JUDGMENT

Judgment Delivered by M. Mohammed J.A.

(1) On the 28th November, 2014, Appellant No. 1 Lyndon Ramah, Appellant No. 2 Ray Oliverrie,

and Keffin Lawrence pleaded guilty to murder upon the basis of the felony murder construct.

They were all sentenced to seventeen years and eleven months imprisonment. Ramah and

Oliverrie have appealed their sentences.

The Facts:

(2) The deceased was shot during a robbery at a shop and bar operated downstairs of the family

home in Palo Seco on the 30th June, 2005. The invasion first started at the family’s business

place downstairs and then proceeded into the family home upstairs. During the course of the

robbery, the deceased’s mother pulled down the handkerchief that was covering Ramah’s face

and he hit her a gun butt to the side of her head.

At some point during the robbery, Oliverrie threatened to kidnap the deceased’s sister and the

deceased told him not to do so. Keffin Lawrence tied the deceased’s hands and the deceased

pleaded for his life, begging that the assailants not kill him. The deceased was first shot in his

leg by Ramah. After being given a false assurance by one of the assailants that his life might be

spared, Ramah placed a gun to the deceased’s ear and shot him in the head at close range.

The post mortem report revealed that there was a gunshot wound which entered from the left

side of the head and exited the right side of the face. Another gunshot wound entered from the

upper front of the right leg and exited the lower back of the right leg of the deceased. The cause

of death was skull and brain injuries and haemorrhage due to the gunshot wound to the head.

The two appellants and Keffin Lawrence gave admissions under caution to the police detailing

the plan, how it unfolded and their involvement.

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The two appellants did not have any previous convictions. At the time of the offence, Ramah

was twenty years old and Oliverrie was eighteen years old.

Bio-social reports were ordered by the court and revealed that the two appellants were not

beyond rehabilitation.

The Judge’s Sentencing Remarks – see the Transcript dated 28th July, 2015 at pages 24-

26.

(3) The judge considered as aggravating circumstances of the case the fact that the offence was a

“heinous” and “senseless” one.

The judge also took into account the mitigating circumstances of the case, namely, that Ramah

and Oliverrie were relatively young persons at the time of the offence, twenty and eighteen

years respectively, that they were persons of good character and that they had pleaded guilty.

The judge also took into account the fact that the appellants had shown interest in expressing

remorse to the family of the deceased.

The judge considered an “appropriate” sentence, after taking into account the guilty plea, to be

one of twenty-eight years. From this figure, he credited the period spent on remand (ten years

and one month) and ordered a sentence of seventeen years and eleven months to run from the

date of sentence on July 28th, 2015.

The judge’s sentencing predates the decisions of this Court in Nadia Pooran v The State1 and

Aguillera, Ballai, Ballai and Ayow v The State2. Quite understandably, since the relevant

sentencing law was not then settled, two errors were made: (a) in the overall sentencing

methodology and (b) in the chronology of applying the discount for the guilty plea. We are

mindful that the term “the starting point” is not mandatory terminology, so long as the

1 Crim. App. No. 32 of 2015 2 Crim. App. Nos. 5, 6, 7, 8 of 2015

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necessary steps are taken in sentencing by the judge. However, in this case, the necessary steps

were not taken in that the judge omitted to distinguish between the factors pertinent to the

offence and those pertinent to the offender. Because of those errors, it is incumbent on us to set

aside the sentence and proceed to re-sentence using the methodology described in the cases

above and we accordingly proceed to do so.

The Appellants’ Grounds of Appeal and Submissions:

(4) Mr. Dolsingh advanced the following arguments on behalf of Appellant No. 1 Lyndon Ramah:

Ground 1: The trial judge failed to state how much credit he gave to Appellant No. 1 for

a non-tactical guilty plea and there was no mathematical calculation for the discount of

the guilty plea.

Mr. Dolsingh submitted that Ramah ought to have been told by reasons and arithmetical

methodology the precise amount that was discounted for his plea of guilty, consistent with the

decisions in R v Okee and West3 and Du Plooy v HM Advocate (No.1)4. It was also argued

that the other discounts should also be arithmetically shown. Mr. Dolsingh further submitted

that an appropriate discount of one-third ought to be given, relying on the decision in

Jaggernath and Kanhai v The State5.

Ground 2: The trial judge failed to take into account the lesser role played by Appellant

No. 1 and the disparity in the roles played between Appellant No. 1 and the others.

Mr. Dolsingh submitted that the judge ought to have taken into account was the varying roles

played by Ramah and the others and that an appropriate discount in this instance would be two

3 (1998) 2 Cr. App. R (S) 199 4 2003 SLT 1237 5 Cr. App. Nos. 16 and 18 of 2007

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years. He relied on the Court of Appeal decisions in Shelly-Ann Anganoo v The State6 and

Haroon Khan v The State7 to support his argument.

(5) The following arguments were advanced by Mr. Khan on behalf of Appellant No. 2 Ray

Oliverrie:

Ground 1: The judge selected the starting point at a significantly higher range than was

appropriate.

Mr. Khan contended that the starting point in this case should be eighteen years and not twenty-

eight years as applied by the judge. He indicated that this eighteen year figure represents a

calculation of the starting point taking into account the aggravating and mitigating factors of

the offence only, and not as the judge found the appropriate sentence to be, that is, the twenty

eight years took into account the aggravating and personal mitigating circumstances of the case

as well as a discount for the guilty plea. He relied on the decision in Aguillera, Ballai, Ballai

and Ayow v The State8 to support this argument.

Ground 2: The judge erroneously considered that the starting point of twenty-eight years

included the discount for the guilty plea, Appellant No. 2’s good character, very young

age at the material time and the fact that he was not beyond rehabilitation.

It was submitted on behalf of Oliverrie that the judge erred in relying on the case of Alexander

Don Juan Nicholas, Gregory Tan and Oren Lewis v The State9, where the sentence was

thirty years after consideration of the guilty pleas, age, good character and the likelihood of

rehabilitation. Mr. Khan argued that that case improperly dealt with and/or failed to specify the

level of discount that the appellants’ guilty pleas attracted. It was further submitted that the

6 C.A. Crim. 39/2008 7 C.A. Crim. 44/2000 8 Supra 9 C.A. Crim. 1-6/2013

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judge understandably erred because the sentence came before the decision in Nadia Pooran v

The State10 which sets out in clear detail the appropriate methodology in calculating the

imposing sentences.

Mr. Khan submitted that the judge should have stated the actual figure with respect to the

discount for the guilty plea, which ought to have been a one-third discount. He indicated that

an appropriate discount which gave some level of weight to the good character of the appellants

ought to have been given and that Oliverrie’s youthful age was a consideration that should be

taken into account to assess his role and issues of influence from the others.

Mr. Khan further submitted that the judge was required to go a bit further and state the actual

figure in respect of each discount, which ought to be applied after the one-third discount for the

guilty plea.

Ground 3: The judge failed to apply an appropriate discount with respect to Appellant

No. 2’s relatively low level of culpability in inflicting violence on the deceased.

With respect to the different levels of involvement, it was submitted on behalf of Oliverrie that

time ought to have been deducted for his limited level of culpability and that the judge should

have stated the figure in respect of such discount.

The Respondent’s Grounds of Appeal and Submissions:

(6) In response to the submissions on behalf of the appellants, the respondent advanced the

following arguments:

a) The respondent submitted that given the strong case for the prosecution, the appellants’

guilty pleas were tactical ones and as such, an appropriate discount for the guilty pleas

10 Supra

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should be twenty-five percent and not the conventional one third discount. The respondent

relied on the cases of Nadia Pooran v The State11, Aguillera, Ballai, Ballai and Ayow

v The State12, Fizul Rahaman v The State13 and R v Blu14 to support this argument.

b) The respondent submitted that Ramah participated in all material aspects of planning and

executing with Oliverrie and Keffin Lawrence and as such, there was no disparity in the

roles of the two appellants and Keffin Lawrence in the robbery that lead to the murder of

the deceased.

c) With respect to the starting point, the respondent argued that given the particular

aggravating factors of the offence, and in the absence of any mitigating factors relative to

the offence, a starting point of thirty-five years was appropriate, consistent with the Court

of Appeal decisions in Aguillera, Ballai, Ballai and Ayow v The State15 and Fizul

Rahaman v The State16.

d) The respondent contended that the youth of the appellants could not be viewed in isolation

from the callousness of their crime and that their actions of serious, violent offending

should not attract a reduction of the starting point of more than two years. The case of

Aguillera, Ballai, Ballai and Ayow v The State17 was relied on to support this

contention.

e) The respondent also submitted that the aggravating factors in this case made the offence

so abhorrent, that the good character of Oliverrie ought not to reduce the sentencing in

this case. The respondent relied on the decision in Aguillera, Ballai, Ballai and Ayow v

The State18 to support this argument.

11 Supra 12 Supra 13 Cr. App. No. 27 of 2015 14 (2004) ABPC 47 (TAB D) 15 Supra 16 Supra 17 Supra 18 Supra

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f) The respondent was of the view that Ramah, Oliverrie and Keffin Lawrence participated

in all material aspects of planning and executing the crime, and as such, Oliverrie’s role

could not be said to be less than that of the others.

Application:

The Starting Point:

(7) In determining the starting point, we note the following aggravating factors relative to the

offence:

(i) The involvement of multiple assailants – see The Queen v AM19 where the Court of

Appeal of New Zealand said that, “The fact that the violation involves more than one

offender acting together is a factor increasing culpability. In discussing offending

more generally, the United Kingdom guidelines express this as an indication that the

offending will have a more than usually serious degree of harm. The role and extent

of participation of the various offenders will of course be relevant in assessing an

individual’s culpability…”; see also The Queen v Stafford20 and R v Taueki, Ridley

and Roberts21;

(ii) The use of gratuitous violence in the sense that there was no resistance from the

deceased. The deceased was not in a position to offer any resistance because his hands

were tied. In Waipuka v R22 Randerson J said that, “The use of extreme violence can

be as serious as the use of a weapon…This case is a reminder that….random acts of

senseless and extreme violence resulting in death are likely to result in stern sentences

in appropriate cases”;

19 [2010] NZCA 114 at para. [45] 20 [2009] NZCA 88 at para. [32] 21 [2005] NZLR 372 at para. [30] 22 [2013] NZCA 661 at paras. [33]-[36]

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(iii) The deceased had pleaded for his life and after being told that his life would be spared,

he was nevertheless shot point blank in the head - see Marlon Gregory John v The

State23;

(iv) An underlying offence for gain (robbery);

(v) The home invasion – the offence started downstairs in the business premises but then

proceeded upstairs where the family lived;

(vi) The deceased had intervened on behalf of his family members, in particular, his

sister, who the offenders had threatened to kidnap; and

(vii) The killing took place in the presence of family members - see the Sentencing

Guidelines Council (UK), Overarching Principles: Seriousness, “Factors

indicating a more than usually serious degree of harm: …….Presence of others e.g.

relatives, especially children or partner of the victim”; The Queen v James Oliver

Meehan24 where Morgan LCJ said that, “The vulnerability of the victim and the

infliction of multiple injuries still remained, of course, substantial aggravating

factors. In addition to this he recognised that there was a substantial degree of

premeditation and planning in this attack which inevitably had a devastating effect

on the family of the deceased. The fact that this attack was carried out in the public

street in front of the children of the deceased who were forced to witness their

father being beaten to death is a particularly shocking aggravating factor.”

(emphasis ours)

There are no mitigating factors relative to the offence.

23 Cr. App. No. 39 of 2007 at para. [59] 24 [2012] NICA 4 at para. [7]

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The factors referred to at (i) to (vii) above make the level of seriousness of the offence

particularly grave. We agree entirely with the trial judge that the offence was a heinous and

senseless one.

The respondent has submitted that an appropriate starting point in this case is thirty-five years

as the facts are similar to that in the case of Fizul Rahaman v The State25. Although the facts

are somewhat different, we have no hesitation in concluding that in totality, the aggravating

circumstances of the offence are equally egregious to those in the case of Fizul Rahaman v

The State26.

The starting point in our view is thirty-five years.

Circumstances of the offender:

(8) There are no aggravating factors relative to the offenders.

Mitigating Factors:

(9) Good character:

The good character of the appellants is wholly outweighed by the multiple aggravating factors

of the offence which make it an abhorrent one. Accordingly, it does not merit any separate

reduction in the starting point for any of the two appellants.

25 Supra 26 Supra

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(10) Young age (18 and 20 years):

In Ramoutar, Badree and Hosein v The State27 delivered on the 5th July, 2016, this Court

said at para.11:

“The overwhelming majority of cases in this jurisdiction are committed by young

offenders within the age bracket of approximately eighteen to twenty-five years. The

observation is frequently made that young persons in today’s setting, because of their

level of exposure, appear to mature at a considerably faster pace than those of the

past. Once the age of majority has been attained, that is, eighteen years, with the

attendant conferral of important adult rights and privileges (such as the capacity to

contract and to vote), youth by itself will not inevitably lead to a reduction in sentence.

Adult offenders must be taken, where deliberate action is engaged in, to have courted

the consequences of their behaviour and choices. By so doing, adult offenders cannot,

without more, seek to be partially immunized in the sentencing process, by praying in

aid young adulthood as a mitigating factor. If the age of majority is to be considered

as meaningful, representing as it does both notionally and practically the portal into

the world of adult decision-making and overall responsibility, then any offender of and

over that age will have a severely uphill task in persuading a sentencing court that

without more, comparative youth is a mitigating factor.

We are mindful of what was said in R v Mako28 by Gault J.:

“Youth and the prospects of rehabilitation may be mitigating factors.

Offenders, and there seem a disturbing number, who have accumulated

considerable lists of convictions while still in their teens cannot expect

leniency in sentencing for serious aggravated robbery offences. As noted in

the judgment of the Full Court of the High Court in Cooper a high proportion

of aggravated robberies in this country are committed by teenagers. In some

cases young offenders may have been directed by others who are older. It

would only encourage that practice to impose lower sentences unless there

27 Cr. App. Nos. S 028-S030 of 2015 28 [2000] 2 NZLR 170 (CA) at para. [65]

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are real prospects of rehabilitation and unlikelihood of re-offending.”

(emphasis ours)

If on the evidence, it can be seen, however, that the youth of an offender has rendered

him susceptible to more mature influence, this may be a factor which can, dependent

on the context, be taken into account and it may lead either to a minor reduction or to

a more substantial reduction in the sentence.

In respect of offenders who have not yet attained the age of majority, the courts may

assume a certain level of immaturity in the absence of any evidence which might

suggest otherwise, for example, where a minor is clearly a “ringleader” and involves

others, even adults, in the subject wrongdoing. In the absence of such evidence, a

nominal reduction may be given as a nod to youth.

We observe the dicta of Weekes JA in Jaggernath and Kanhai v The State29, where it

was said that:

“The overwhelming majority of cases seem to still be inclined to give some

significance to youth as a mitigating factor in respect to sentencing an

accused. However as Mendonca J.A. cautioned in Denish Ragoonanan

v.P.C. Jaggernath Mag. App. No. 17 of 2006, “It is important to recognize

that what is appropriate in any given case depends very much on the

circumstances of that case.”………A court must have regard when exercising

criminal jurisdiction with respect to young persons, that while they bear

responsibility for their actions they deserve some special consideration

because of their state of dependency and immaturity. This is not to say that

we are minded to ‘go easy’ on every young offender. While the court

acknowledges that young persons are cognitively and socially different

from adults and that it is important "to have compassion", it is equally

important to let young offenders know that they cannot commit crimes and

escape unscathed….The courts may consider reducing discounts as the

29 Cr. App. Nos. 16 and 18 of 2007 at paras. [64] an [65]

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offender approaches the age of majority, applying the caveat in Ragoonan

(supra) that each case should be decided on its own merit.” (emphasis ours)

Of course, the actual level of reduction on account of the youth of an offender must

bear a proportional relationship to the starting point. The worth of the level of

reduction must necessarily be tied in to the starting point.”

There is no evidence to suggest that the two appellants, both having attained the age of majority

(eighteen and twenty years), were manipulated or influenced in even the slightest way in their

involvement in the offence. To the contrary, they appear to have made some very deliberate

decisions and to have carried out a concerted plan. It follows that no reduction is in order.

(11) Different levels of Involvement:

As was said in Aguillera, Ballai, Ballai and Ayow v The State30, referring to paragraph 42 of

the decision in Taueki31, in sentencing, there is no need to draw “fine distinctions”. The

involvement of any one appellant is not noticeably at a lower level than the others so as to

justify a differentiation and reduction in sentence.

(12) The working out of reductions/deductions in a sentence:

Mr. Dolsingh contends that by way of a similarly transparent methodology for the working out

of a level of discount for a guilty plea (Du Plooy v HM Advocate (No.1)32; Terry Daly v The

State33 and Nadia Pooran v The State34) all reductions should be mathematically calculated.

In Aguillera, Ballai, Ballai and Ayow v The State35, we said that neither the fixing of the

30 Supra 31 Supra 32 Supra 33 Supra 34 Supra 35 Supra

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starting point nor the adjustments reflecting the mix of aggravating and mitigating factors

relative to the particular offender can be calculated with mathematical exactitude (see

Aguillera, Ballai, Ballai and Ayow v The State36).

We therefore do not agree with Mr. Dolsingh’s submissions which if accepted, would entail the

overall sentencing exercise becoming an excessively mathematical and rigid one.

Guilty Plea Discount:

(13) The respondent has submitted that because of the strength of the prosecution case, which

consisted of an eye-witness account and admissions, the guilty pleas of the appellants were

tactical ones and that a discount of twenty-five percent is appropriate on these facts. We are of

the view that it would be wrong in principle to consider a reduced discount at this stage of the

proceedings as it was not canvassed before the trial judge. This Court said in Aguillera, Ballai,

Ballai and Ayow v The State37, where the case of R v Caley and others38 was referenced, that

such a reduction in the usual discount for a guilty plea must be approached with caution and

requires particularly careful justification and an explanation in the reasons which is clearly

expressed.

The judge has the best feel for the matter and would also have the depositions before him. The

judge would be in the optimum position to make a realistic assessment of the evidence with any

of its attendant imperfections. This Court only has a finely distilled summary of the evidence.

In the absence of any argument as to the strength of the evidence, we are not prepared to deviate

from the conventional discount of one-third.

36 Supra at paras. [23] and [27] 37 Supra at para. [32] 38 [2012] EWCA Crim. 2821

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Calculation of the Sentence:

(14) We take a starting point of thirty-five years as explained above. A consideration of the

subjective factors relevant to the offenders leaves the starting point unaffected. We then apply

the one-third reduction to take into account the appellants’ guilty pleas which results in a figure

of twenty-three years and four months. Further, we give full credit for the time spent in pre-trial

custody which amounted to ten years and one month. This produces a final figure of thirteen

years and three months.

Disposition:

(15) We therefore allow the appeals of both appellants.

Accordingly, the sentence imposed by the learned judge is set aside and in its place is substituted

a sentence of thirteen years and three months to run from the date of the imposition of the

sentence on the 28th July, 2015.

…………………………

P. Weekes J.A.

…………………………

A. Yorke- Soo Hon J.A.

..……………..…………

M. Mohammed J.A.