THE COURT OF APPEAL has been tasked to determine its powers in relation to an appeal against a sentence when a maximum sentence indication (MSI) had been given by a sentencing judge.
The issue, the first of its kind involving an appeal of sentence based on an MSI, has been raised in appeal by a convicted rapist.
Orlando Alexis pleaded guilty after an MSI was given by the judge in 2019, and was sentenced to 16 years and eight months for rape; 13 years and four months for grievous sexual assault; 12 years for kidnapping; 13 years and four months for false imprisonment and eight years for robbery arising out of an incident in 2008, in which he raped and threatened to kill his victim.
The sentences were to run concurrently after the time he spent on remand was deducted.
He appealed his sentence on the basis of a material irregularity occurring when the sentencing judge took into account his pending charges without his consent and increased the starting point of her sentence.
He is also challenging his sentence on the ground that the judge failed to give proper weight to mitigating and aggravating factors relative to the offender when making an assessment before arriving at the sentence.
At the hearing of the appeal, Justices Mark Mohammed, Gillian Lucky and Maria Wilson enquired from both Alexis’s attorney, deputy public defender Raphael Morgan and Assistant DPP Nigel Pilgrim if the appellate court can depart from an MSI and now resentence Alexis, or refer the case back to the High Court for sentencing.
While an MSI is not a sentence, it gives an accused an idea of the likely sentence to be imposed if he/she was minded to plead guilty.
The law in TT does not allow for an appeal of an MSI, unless it was found to be fundamentally flawed, but does allow for an appeal of the final sentence.
However, Morgan argued the appellate court could not ignore the MSI or how the appellant came before it.
He said to depart from the MSI can cause injustice to the prisoner since it was relied on to plead guilty. It was his suggestion that the prisoner be invited to vacate his guilty plea if he wanted to and have the matter sent back to the High Court for further consideration or sentencing.
However, Pilgrim said the sentencing judge did not go above the sentence indication and after the MSI was given, it was accepted and Alexis pleaded guilty, after being advised he could appeal his sentence.
He urged the court to tread carefully since an MSI, governed by a practice direction, was subsidiary legislation while the right to appeal was rooted in the Supreme Court of Judicature Act consented to by Parliamentm thus the latter takes precedent over the MSI process.
After hearing submissions from both sides, Mohammed acknowledged the case was of importance as it was the first time the Court of Appeal was reviewing an MSI and had to consider if it would be encroaching on the powers of a sentencing judge. The judge reserved their decision, saying it should be delivered by August.
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