Sentencing judge Justice Bertram Morrison “erred” in his decision to hand down 12-year sentences to a man convicted for two 2017 Westmoreland murders, the Court of Appeal said Friday in overturning the paltry sentences.

“The approach taken was, with respect, at best unorthodox,” the court said.

Those comments are included in the written judgment for the ruling handed down Friday morning which saw the Crown registering a historic win with the granting of the first appeal under the Judicature (Appellate Jurisdiction) (Amendment) Act, 2021. The ODPP in December of 2021 served notice that it would appeal the 12-year sentence handed down to Lindel Powell, otherwise called Lazarus.

READ: Crown wins historic first appeal – Westmoreland murder convict to now serve two life sentences

The court, which heard arguments and submissions in May this year, had reserved its judgment. In the ruling on Friday, it ordered that the sentences imposed by the learned sentencing judge be quashed and the life sentences imposed instead. Instead of the 12 years handed down to Powell by the sentencing judge, the convict will now serve two life sentences and at hard labour.

On Count one, the appeal court ordered that Powell serve life in prison with a stipulation that he serves 20 years and seven months at hard labour before becoming eligible for parole.

On count two, the tribunal ordered that Powell serve life in prison with the stipulation that he serve 24 years and seven months at hard labour before becoming eligible for parole. The sentences are to run concurrently and are to be treated as having commenced on the date they were imposed.

The Crown had recommended life imprisonment with eligibility after 21 years for each count during the original sentencing exercise. That bid was however dismissed by Justice Bertram Morrison who tried the matter.

Powell was taken into custody after being held with a firearm belonging to Oral McIntosh, a licensed firearm holder, who was shot dead at his home at Top Lincoln District, Grange Hill, Westmoreland on Saturday, January 7, 2017.

During a question and answer interview held on July 15, 2017, Powell indicated that he was in the company of Logan Miller, otherwise called Alkaline (now deceased), on the day of the murder.

Powell confessed that he and Alkaline were on the road robbing men and women when he saw two men in a yard. He went to them and said “go pon unnu face”. While the men were on the ground, he searched McIntosh’s van while Alkaline searched the men. He said that Alkaline found a gun on McIntosh, shot him in his head, and took the gun. They also took the slain man’s phone and about $32,000 in cash.

Powell also confessed to the murder of a man named Ika Clarke in March 2017 at Mount Mountain, Grange Hill, Westmoreland.

When he was asked what part he played in that murder he said, “Fire five shot inna him chest.”

He also stated that Clarke was killed because “him did a mek talk seh mi cousin Bleachers cyaan bury an den mi a go dead an him already kill one a mi fren’, Jabez”. Additionally, Powell said that the gun that the police found on him on July 14, 2017 was one of the weapons used to kill Clarke.

In its written judgment, the appeal court said the questions it sought to answer in its ruling was whether the sentencing judge had erred in principle in imposing the original sentences, whether he had the power to impose those sentences and whether they were unduly lenient or manifestly inadequate?

According to the court, with the “incontestable factual circumstances indicating that McIntosh was killed in the course of or ancillary to a robbery, it is apparent that the learned judge erred in not imposing a life sentence in respect of this count; and in imposing a sentence of 12 years’ imprisonment instead”.

According to the judges of the appeal, “the learned judge should have stipulated a period of not less than 20 years before the respondent would have become eligible for parole”.

The court further said, although the judge had made several references to the Criminal Justice (Administration) (Amendment) Act, 2015 requiring him to consider, among other things, whether the sentences he would impose would shock the public conscience and that it empowered him to grant a discount of up to 50 per cent, a careful reading of the Act shows that this was, in fact, not so.

It said “in making this error, the learned judge seemed to have conflated the provisions under section 42D and section 42E of the Act” adding that “the reality is that section 42D of the CJAA applies to offences generally – that is, those other than murder, and permits a sentencing judge on a guilty plea on “the first relevant date” to reduce a sentence “by up to fifty percent”.

“It seems to us that, although the learned judge several times referred to section 42(H) of the Act and the concept of a sentence shocking the public conscience, he failed to pay sufficient regard to the views expressed in the community report section of the social enquiry report; and to give those views greater weight than he did in informing the sentences ultimately imposed. We are of the view that those considerations, along with all the other circumstances discussed in this case, give a sufficient indication that the sentences imposed would, indeed, shock the public conscience,” the judges stated.

The appeal court judges further said, “although the learned judge mentioned some of the main factors and principles to be taken into account in deciding on the appropriate sentences in this case, the approach taken was, with respect, at best unorthodox”.

“The approach taken in the final imposition of the sentences also demonstrates an unusual lumping together of the sentences for the two offences or counts on the indictment. It is to be borne in mind that where the counts on the indictment arise from different circumstances there should be individual consideration of the appropriate sentences. The methodology employed by the learned judge resulted in the same sentence being imposed for both offences without any apparent consideration of the difference in the circumstances,” the court declared further.

In summary, the court said the judge erred in imposing a sentence of 12 years’ imprisonment instead of life imprisonment (or at the very least, of 15 years’ imprisonment) in respect of count one; and (ii) in imposing a sentence of 12 years – that is, less than the prescribed minimum of 15 years’ imprisonment – for count two.

“We take the view that the learned judge fell into error in imposing the sentence that he did in relation to, at the very least, count one. He therefore imposed sentences that he had no power to impose, thus entitling us to sentence the respondent afresh,” it stated.