On Jan. 26, 2001, Bryan Roland Powell was convicted of murdering taxi driver Curtis Seymour the previous year. On Oct. 30, 2017, Powell was sentenced to 26 years imprisonment.

In his judgment, released this week, Justice Alexander Henderson set out his reasons for fixing this minimum term before Powell may apply for release.

When Powell was convicted, the only penalty for murder was life imprisonment. The Conditional Release Law, passed in 2014, and regulations which came into effect last year, sets 30 years as the minimum term for murder unless there are exceptional circumstances that could raise or lower that term.

In any case, the fixed term means only that an offender may apply for release after serving that amount of time; the law does not say whether he should be released on that date, or a later date, or at all, Justice Henderson pointed out.

In reviewing the facts, he noted that Powell was charged along with Kurt Fabian Ebanks for murdering Mr. Seymour on Jan. 18, 2000. The two men planned to rob him. After taking $63, Powell asked Ebanks to hand him a knife, which he did. Powell then stabbed his victim several times, including once in the heart. Mr. Seymour died within a few seconds.

He was 40 years old. Powell was 20 and Ebanks 23.

Both men pleaded not guilty. Powell said he stabbed Mr. Seymour in self-defense and Ebanks was not even there. Ebanks did not testify, but admitted to police he had been there and had handed Powell the knife. Aggravating and mitigating factors were suggested to Justice Henderson in hearings earlier this year because he was the one who convicted the men after a judge-alone trial.

Justice Henderson said there was also a preliminary question for him to consider – Powell’s current mental state. There was no evidence that he was mentally disturbed at the time of the murder or that he was not fit to stand trial a year later, the judge noted. In 2002, however, he was diagnosed as suffering from paranoid schizophrenia.

At a hearing in May this year, forensic psychiatrist Dr. Arline McGill confirmed Powell’s diagnosis and said the disease was not amenable to treatment, “so the prognosis was very poor.” The judge inferred from that testimony that Powell continued to represent a danger to the community.

Justice Henderson concluded that murder for gain and use of a knife in this case were not exceptional circumstances.

Justice Henderson pointed to a sentencing principle – that when two offenders participate in a joint enterprise and other factors balance, fairness demands that their sentences be the same.

In this case, however, Ebanks applied to the Governor for release on license around 2007, under a provision of the Prison Law then in effect. “Powell, perhaps hindered by his deteriorated mental state, made no similar application,” the judge observed.

Ebanks’s application was reviewed at least once, but he was not released, and authorities take the view that his application is still pending, Justice Henderson summarized.

“The Crown concedes that in law Mr. Ebanks’s application has not been (and I assume never will be) refused. This fortuitous result means that Mr. Ebanks will never have a minimum term set and will very likely, as the Crown says, be released well before having served the minimum term I might have imposed,” the judge said.

It would be unfair to Powell to impose a term longer than Ebanks might serve, he continued. The average term served by a prisoner sentenced to life imprisonment and then released on license under the Prisons Law has been 26 years. In all the circumstances, the judge said he considered it would be just to set 26 years as the minimum term for Powell.

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