From the Court of Appeal of Belize
The appellant was convicted after a trial in the Supreme Court of Belize (Central Criminal Session) of the murder of Dwayne Arnold. He was sentenced to death by hanging. His appeals against conviction and sentence were dismissed by the Court of Appeal of Belize. He was granted permission to appeal against sentence by the Judicial Committee of the Privy Council.
The prosecution case was that the appellant had killed the deceased by firing shots at him. Two lead projectiles were recovered from the deceased’s body, one from the head and one from the right arm. At the trial, the appellant’s defence was one of alibi. The appellant was 30 years of age at the time of sentence. He had a number of previous convictions. These included a conviction for manslaughter, for which he was sentenced to 4 years’ imprisonment; two drugs offences; offences of burglary and possessing ammunition without a licence; and an offence of “dangerous harm”. No psychiatric, psychological or social enquiry reports were placed before the judge.
The judge considering all the previous convictions did not find any mitigation factor and awarded death sentence.
Section 106 of the Criminal Code of Belize provide:
“(1) Every person who commits murder shall suffer death:
Provided that in the case of a Class B murder (but not in the case of a Class A murder), the court may, where there are special extenuating circumstances which shall be recorded in writing, and after taking into consideration any recommendations or plea of mercy which the jury hearing the case may wish to make in that behalf, refrain from imposing a death sentence and in lieu thereof shall sentence the convicted person to imprisonment for life.
(3) For the purposes of this section—
‘Class A murder’ means:-
(b) Any murder by shooting…
‘Class B murder’ means any murder which is not a Class A murder.”
Section 7 of the Constitution of Belize provide that “No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”
In Trimmingham v The Queen  UKPC 25, the Board distilled the approach that should be followed in discretionary death penalty cases into two basic principles:
– the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, ‘the worst of the worst’ or ‘the rarest of the rare’. In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour.
-there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him.
The Board accepted the appellant’s submission that the judge in the present case failed to apply the correct principles when passing the death penalty. First, his starting point was that it was for the appellant to persuade him to pass a life sentence rather than the death penalty. This approach was wrong as death penalty should be imposed only in the most extreme and exceptional cases and then only where there is no reasonable prospect of reform and the object of punishment can only be achieved by the death penalty.
Secondly, the judge did not indicate which features of the “manner in which this particular offence was committed” he considered made the case the “most extreme and exceptional”, the “worst of the worst” or the “rarest of the rare”. As the deceased was killed with two swift shots and there was no element of sadism, torture or humiliation, it did not meet the criteria specified in Trimingham. Thirdly, the judge took account of the prevalence of murder and offences of a similar nature. But the death penalty cannot be justified by the prevalence of murder or other similar offences. Neither of the two principles articulated in Trimmingham mentioned prevalence as a relevant factor.
Finally, the judge was wrong to regard the appellant’s previous convictions as a relevant factor to be taken into account. He had not been previously convicted of murder.
Also, at the time of the sentence hearing in the case, no psychiatric reports had been obtained and only a limited social inquiry was undertaken by the Belize Police Department. To sentence the appellant to death without a psychiatric report and a comprehensive social inquiry report was held wrong. The Board also found it difficult to conceive of circumstances in which it would be right to impose the death penalty without such reports.
The appeal against sentence was thus allowed. The sentence to death by hanging was set aside and a sentence of life imprisonment substituted.