R. v. MICHAEL ANTHONY DE SOUZA

IN THE COURT OF APPEAL

1996, No. 435
(Criminal)

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J U D G M E N T

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Bokhary, J.A.: (delivering the judgment of the Court)

1. On December 30, 1994, the police stopped a car in which this applicant was travelling as a passenger. They found on him two plastic packets of what they suspected were dangerous drugs. Their suspicions proved well-founded. Between them those two packets contained a total of 7.17 grammes of methamphetamine hydrochloride, the drug commonly called "ice".

2. The applicant was charged with trafficking in those drugs. He came before Deputy Judge Andrée-Wiltens in the District Court.

3. From the outset, he denied trafficking but admitted simple possession. At first, the prosecution refused to accept his offer to plead guilty to simple possession. But after a certain turn in the evidence, it accepted that plea.

4. That plea was tendered on September 26, 1995, and was accepted by the judge.

5. Reports were sent for; and the judge passed sentence on October 17, 1995. The sentence passed was one of two years' imprisonment.

6. Now the applicant, presently aged 30, seeks leave to appeal against that sentence out of time. He applied late because he believed that, having regard to how the sentence was calculated and worked out, he would have been released on July 12 this year. That apparently was what he was given to understand by the prison authorities at first. He now finds that his release will be on December 24 this year.

7. How the mix-up occurred does not matter for the purpose of whether he should be given an extension of time for the purpose of applying for leave to appeal against sentence. We will certainly give him an extension. It would, however, be a good thing if one could get to the bottom of it for the purpose of deciding whether or not to accede to the application itself, once time has been extended to make it.

8. But we are not confident that we can get to the bottom of the matter. Certainly in passing sentence, the judge dealt with a matter not usually dealt with by sentencing judges when he said :

"The time that you have spent inside awaiting trial before you actually started serving other sentences will be taken into account."

The "time" referred to by the judge was the period December 30, 1994, to February 15, 1995.

9. In fact, there was another period concerned. That is the period August 25 to October 16, 1995, when the applicant was again a remand prisoner after completing the other sentence but before beginning this one.

10. Precisely what was said in mitigation and indeed during the whole of the sentencing process is not entirely clear. But it is quite possible that the judge did, having regard to totality, have in mind a sentence which would result in release in July this year.

11. All in all, the case is extremely unfortunate. The only fortunate thing about it is that it is unusual.

12. The courts must deal with accused persons in such a way as to command respect for the justice of the law and its clarity.

13. In this particular case, it seems to us that that imperative is best furthered by treating this application as an appeal and reducing the sentence to the extent necessary to bring about this man's immediate release. And we do so.