2013 Case of Note: In Privy Council — Selassie (Appellant) and Pearman (Appellant) v The Queen (Respondent)
About MJM Limited
MJM is one of Bermuda’s leading law firms. We have a broad ranging practice with an emphasis on civil and commercial litigation, banking and finance, general corporate, trusts, insolvency, restructuring, insurance and reinsurance. We also offer advice and services to international individual and commercial private clients.
MJM Limited’s full profile on mjm.bm.
The Judicial Committee of the Privy Council (the “Board”) is the highest court of appeal for cases from Bermuda to be heard. When a case has reached the Privy Council, the issues to be considered by the Board are typically on points of law.
On 8 October 2013, the Board handed down a judgment which will invariably affect all sentences which relate to murder in Bermuda: Selassie (Appellant) and Pearman (Appellant) v The Queen (Respondent) [2013] UK PC 29 (77 KB PDF).
The background of this case is that Selassie and Pearman (the “Appellants”) had committed ‘pre-meditated’ murder in May 2008 and murder in 2009 respectively. In the trial court, the Supreme Court of Bermuda, the Appellants were convicted and received sentences of 35 years and 28 years respectively before being eligible for release on licence.
The Appellants appealed to the Court of Appeal (Bermuda’s highest local appeals court) who reduced the sentences to 28 and 21 years respectively.
The Privy Council judgment was an appeal from the Court of Appeal wherein the Appellants were arguing that their ineligibility for release on licence until 28 and 21 years had been served was unlawful and contrary to sections 268A(2) and 288(1) of the Criminal Code 1907 (the “Code”).
Section 268(A)(2) of the Code states that “any person convicted of premeditated murder shall be sentenced to imprisonment for life without eligibility for release on licence until the person has served twenty-five years of the sentence”.
Selassie, through his counsel, argued that his ineligibility for release on licence could not be extended beyond his service of 25 years due to the wording in the Act.
Conversely, section 288(1) of the Code states that “where a person is sentenced to life under this section, such person, shall, before any application for his release on licence may be entertained or granted by the Parole Board, serve at least fifteen years of the term of imprisonment”.
Counsel for Pearman also contended that his ineligibility for release on licence could not be extended beyond his service of 15 years given the wording in the Act.
The Board was very clear to make the point that release on licence is at the discretion of the Parole Board (a statutory body) who determines whether an applicant is suitable for release. A Defendant will not automatically be released when the legislated time served has lapsed.
It was however agreed by counsel for the Appellants and respondents that the Code provides a maximum period. The issue in dispute, however, was whether the periods specified in the Code were unconstitutional in light of the Bermuda Constitution Act 1967 (the “Constitution”).
The Constitution provides that it is unlawful for anyone to be deprived of their liberty, save when authorised by law, which would include the execution of a sentence or an order of a court (including a criminal offence of which one has been convicted) (section 5(1)(a) of the Constitution paraphrase.)
Having given due consideration to the Code and the Constitution, the Board reduced the sentences of the Appellants from 28 to 21 years to 25 and 15 years respectively.
It remains to be seen how this authority will impact future sentences of defendants, but it is fair to say that this authority will be cited regularly by counsel as a guideline on the appropriate sentencing tariff. What this case does highlight is the balance that must be struck between deterrence and a sentence being proportionate to the gravity of an offence.