In passing sentence on Carlos Renton Russell last Thursday, Mr. Justice Alex Henderson revealed that he would have settled on 15 years for manslaughter if there had been no mitigating circumstances.
But he instructed himself that it would be wrong in principle to impose a sentence that took inadequate account of the jury’s verdict.
That verdict was not guilty of murder, guilty of manslaughter by reason of provocation. The judge concluded 11 years was appropriate.
Russell was charged with murdering Phillip Wayne Watler, 28, at George Town Hospital on 30 March 2005. The defendant pleaded not guilty to murder and trial began on 14 February with a jury of five men and seven women.
On 27 February the jury returned its verdicts. The not guilty vote on murder was unanimous. The guilty verdict for manslaughter was not unanimous. The division, 10 – 2, was a matter of public record, Mr. Justice Henderson said.
The jurors were thanked for their hard work and participation in the criminal process. They were released, but chose to stay when Defence Counsel Howard Hamilton QC asked to proceed to sentencing.
Mr. Hamilton, who was instructed by Attorney Anthony Akiwumi, then revealed that the Defence had been prepared to do ‘exactly what the jury has found.’ He asked the court to sentence Russell as if there had been a guilty plea. He suggested a sentence of eight years.
The judge said he had never had a case in which the defendant pleaded not guilty but asked to be sentenced as if he had pleaded guilty. He asked Solicitor General Cheryll Richards her thoughts.
Ms Richards said yes, there had been an offer of a plea two or three days before the trial started. But that offer was conditional in respect of two matters – whether the issue of provocation arose from the documents in the case or from Russell’s interview; the Defence preference to have some indication of what the sentence would be.
Mr. Justice Henderson said it was not his practice to indicate sentence in advance. He pointed out that the Defence could have pleaded ‘not guilty to murder but guilty to manslaughter’ at the outset.
Mr. Hamilton argued that the Crown did have evidence of provocation from another trial in which Russell was the main witness.
That provocation was described by Mr. Justice Henderson when he summarised the evidence that came out in Russell’s trial. There was an incident in which two men, Matio Dinall and Phillip Watler, appeared in front of Russell’s house the night before Watler was killed.
Watler was armed with an M16 automatic assault rifle of a military type and Dinall with a nine-millimetre handgun. Some 27 shots were fired.
Russell was inside with his stepson, his stepson’s wife and their daughter, Russell’s granddaughter. No one was harmed but that was merely fortuitous. A number of bullets went into the wall of the bedroom where the baby had been sleeping. Some bullets went into the front door.
About 14 hours later, Russell appeared at the hospital with a gun in hand and wearing body armour. He had told the court he went there to speak to Sheldon Brown (who was a patient, having been shot on 28 March).
Russell had told the court that when he saw Phillip Watler outside the hospital everything turned red; events of the night before played in his mind and he heard the baby screaming again. He pursued Watler into the hospital.
The judge noted that Russell fired four shots; three of them struck Watler and he died within minutes.
This was not an execution motivated by revenge, the judge commented. The jury by its verdict found that Russell was deprived of his self-control by reason of what had taken place the night before and Watler had participated. The jury also found that the loss of self-control was something the ordinary man would have suffered in those circumstances.
Earlier, the judge asked why the shooting at Russell’s house took place. Mr. Hamilton indicated that any answer would be conjecture.
By way of personal background, Ms Richards submitted a record of Russell’s previous conviction for possession of an unlicensed firearm in 1998, for which he was sentenced to seven years.
In citing precedent sentences, she said the courts were very concerned about the deterrent effect of sentences. She noted that the shooting of Watler was with an unlawfully obtained handgun in a public place.
The judge referred to another aggravating feature not yet mentioned – Russell had fired shots at police officers outside the hospital after Watler had been shot inside. The shots at officers may have been warning shots as Russell ran from the scene.
Sentencing was adjourned until Thursday so that the judge could consider all that had been said.
After summarising the facts, as above, Mr. Justice Henderson said Russell’s previous firearm conviction was a serious aggravating feature. After hearing from both counsel, he was satisfied that the sentence for the new conviction would ordinarily be 12 to 14 years, but the aggravating feature would add to that.
There were also two mitigating factors. Russell had testified against Matio Dinall at some risk to himself. Dinall was found guilty of firearms offences and sentenced to 14 years imprisonment.
Russell had also offered through his attorneys to plead guilty to manslaughter. He did not, but the judge was prepared to proceed as if he had (see box).
Had there been no mitigation, the judge would have sentenced Russell to 15 years. But because of the mitigation, there had to be substantial discount, which he determined to be four years.
The sentence was therefore 11 years, with time served to be taken into account. Russell has been in custody since the shooting.
Defendant should plead his plea
When a defendant wishes to get a discount for an early guilty plea, he should plead in open court, Mr. Justice Alex Henderson said on Thursday.
He was dealing with the sentence of Carlos Russell, but set out procedure for future use.
Ordinarily, when a defendant wishes to have benefit of a plea and the Crown does not accept it, he should plead in open court. Trial would then proceed on the greater offence (for example, murder rather than manslaughter). Depending on the outcome, the defendant could then claim credit.
The judge said the procedure he was setting out was not particularly well known and had not been articulated before as a principle of sentencing in these islands.
For that reason he was prepared to proceed in Russell’s case on that basis that he had offered to plead guilty and would have if this course of action had been accepted.
The judge emphasised that he was not implying any criticism oft Crown. It was entirely appropriate for the Crown to insist on a trial unless the facts in its possession clearly supported the appropriateness of a guilty plea to a lesser included offence.