A man who was on remand for offences against his ex-wife and who called her from prison to threaten her is appealing his sentence.
The lawyer for Mekko Gooden, who was sentenced to six-and-a-half years in 2023 for threatening to kill his ex-wife, claims his client’s sentence was “excessive” and the magistrate erred by giving him an increased term in prison due to aggravating factors.
Gooden’s defence attorney, Keith Myers, argued before Grand Court Justice Cheryll Richards on Friday, 22 March, that the victim’s impact statement should not have prompted the magistrate to give an uplift to the defendant’s sentence.
Gooden, appearing via video-link from Northward Prison, is appealing sentences for threats to kill; using an ICT network to abuse, harass or annoy; and causing fear or provocation of violence.
Under sentencing guidelines, if magistrates and judges determine that an offence has caused harm – psychological or physical – a sentence can be based on that. In Gooden’s threats-to-kill case, in February last year, Magistrate Vanessa Allard had used a starting point of five years, and then added 18 months because of aggravating factors.
Myers contends that, since the ‘harm’ element had been taken into account in categorising the offence, that would have already included aggravating factors, so in effect, the magistrate had “double counted”.
Gooden had pleaded guilty to the charge of threats to kill while his trial was under way in 2022. Richards pointed out that the guilty plea had come after Gooden’s ex-wife had given evidence.
‘Timid and fearful’
In her description of the victim in her sentencing ruling, Allard had noted she seemed “timid and fearful” while seated behind a screen during the trial, Myers said.
But, Myers argued, the ex-wife “gave as good as she got. She was vocal and upset,” adding that she had been able to express her anger while on the stand, and also in her victim impact report.
He said he struggled to see, from the notes of the trial proceedings, how the demeanour of the victim had indicated she had suffered psychological harm.
Myers said the impression of psychological damage from the threats to kill and the phone call from prison had come from the woman’s victim impact report.
He argued that the problem with victim impact reports is they give a “second bite of the apple”, in that they are not backed up by evidence and are taken at “face value”.
“I’m not saying this has not had an impact upon her because it must have been horrific,” he said, but argued that categorising a crime for sentencing purposes, based on “untested” statements on a report, was unfair.
Crown prosecutor Orrett Brown argued the judges do have the discretion to take victim impact statements into consideration to categorise harm when determining sentences.
Aggravating factors
Myers noted that Allard had included a number of aggravating factors to give an uplift in Gooden’s sentence. These included that the threats had been repeated, but the lawyer argued that this had occurred within a short time, in a single conversation, so should really be considered a single threat.
Brown, reading from the magistrate’s ruling, told the court in his first threat, Gooden, a Jamaican national, told his ex-wife if she didn’t sort out his papers to ensure he could stay in Cayman, he would kill her. Then, a little while later, he told her that it would be easy to get a boat from Jamaica back to Cayman to kill “all two of you”.
The ex-wife’s new boyfriend had been at the residence when Gooden had shown up, the court had heard.
“It added a layer of threat,” Brown said of the second threat Gooden had made, adding that it was therefore appropriate that the magistrate consider it an aggravating factor.
However, Myers argued that the notes of the trial did not include these two separate threats, even though the magistrate’s judgment did. “It is inaccurate,” he said.
Threatened at her home
Myers also objected to the magistrate using the location where the threats were made as an aggravating factor. They were made around 10pm at the victim’s home, which she shared with her and Gooden’s child, and where, Allard had noted, she had an expectation of safety.
Myers told the court that this was not as clearcut as it seemed, as it had been the home that Gooden had shared with his ex-wife and child. Richards asked if the man had been living there at the time of the offence, to which Myers answered that he was not, as his bail conditions did not allow him to do so.
“Why was he there if he was bailed not to go there?” the judge asked.
Myers responded that, despite his bail conditions, Gooden had visited the home several times with the consent of his ex-wife, to see his child.
Brown argued that the fact that the threats were made to the victim at the home from which her ex-husband had been barred for her “safety and protection” was quite rightly considered an aggravating factor by the judge.
Threatening call from jail
Gooden is also appealing against his sentences for misuse of an ICT network to abuse, annoy or harass, and for causing fear or provocation of violence. Those charges stemmed from him making a phone call to threaten his ex-wife from Northward Prison, where he was on remand for offences against her.
Gooden was sentenced to four months for the misuse of an ICT network, and 16 months for causing fear and provocation of violence. These sentences had included an uplift of one month and two months, respectively, because of the aggravating factor he had called his ex-wife at her workplace from prison, while on remand for earlier offences against her.
Richards said she would deliver her ruling on the appeal on Thursday, 28 March.
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