It’s not fair
The prosecution has filed a notice of appeal challenging the sentences handed down by Supreme Court judge, Justice Leighton Pusey earlier this month to taxi driver Andre Thomas for his role in the 2016 murders of American missionaries Harold Nichols and Randy Hentzel.
Thomas was in July this year declared guilty by a jury after he opted to stand trial, maintaining throughout his four week-long hearing that, despite observing the murders, he did not participate.
On Friday, November 10 Thomas was sentenced to life imprisonment for each murder with eligibility to apply for parole after 30 years. He was, however, given a reduction of four years because of time spent on remand, making it so that the time spent behind bars before he is eligible to apply for parole would be 26 years.
Ironically, his co-accused and cousin Dwight Henry, who pleaded guilty to two counts of murder under a plea deal and became the prosecution’s main witness, was sentenced by Justice Pusey in January this year to life in prison without the possibility of parole until after 28 years. Henry had testified against Thomas, saying that he killed only one of the men, while his cousin shot and chopped the other.
Thomas, the Jamaica Observer was reliably informed, was taken into custody about two months before Henry.
Justice Pusey, in sentencing Thomas in the Home Circuit Division of the Supreme Court in downtown Kingston, said he had “struggled to find” factors that would lessen the St Mary man’s culpability for the “senseless” killings.
The Office of the Director of Public Prosecutions, however, is contending that the sentence was unduly lenient, given that Thomas, being a co-conspirator, had opted to go to trial and had received a lesser sentence in comparison to Henry who pleaded guilty and gave evidence in the matter.
“It needs to be reviewed; the person who takes you to trial will always get the higher sentence than the one who pleads guilty,” Director of Public Prosecutions Paula Llewellyn, King’s Counsel, told the Observer on Tuesday. She said to allow the judgement to pass undisturbed would have a “chilling effect” on the willingness of individuals to engage the prosecution under the Criminal Justice (Plea and Negotiations) Act (plea bargain).
Defence attorney Alexander Shaw, commenting on the matter at the Observer‘s request, said: “The parity rule is to be regarded as a fundamental principle to any rational and fair system of criminal justice, and so in circumstances where a sentencing judge diverts from that principle, the reason must be glaring so as to not undermine the confidence in the criminal justice system and that is not to say that individuality and proportionality are not sacrosanct principles that the court should adhere to…
“But in circumstances where an accused pleaded guilty, there is a legitimate expectation that he would receive a lesser sentence than his co-accused who went to trial, unless it is that, even though they are convicted for the same offence, their roles were markedly different so as to justify the variance in the sentences,” Shaw added.
The Appeal Court, in a 2019 judgement, referenced a Caribbean Court of Justice ruling featuring a circumstance similar to that of Henry and Thomas and said that court’s guidance “demonstrates that the principle of parity underscores the necessity for a sentencing judge, when sentencing a second accused who is tried separately from another who had been previously sentenced, to ensure that there is consistency in punishment”.
Nichols, 53, and Hentzel, 49, were missionaries for the Teams for Medical Missions in Pennsylvania. They went missing on Saturday, April 30, 2016, after leaving their Tower Isle, St Mary, homes on motorcycles to visit a site where they had planned to do charity work the following week.
When they did not return home, a search party later that day discovered Hentzel’s body lying face down, his green helmet still over his head, with his arms bound “tightly” behind his back by a piece of cloth torn from the green T-shirt in which he was clad.
Nichols’ body was found some distance away on the Sunday afternoon.
Justice Pusey, in noting that the facts of the case are “well-known” and “unfortunately notorious”, said that while there had been conflicting statements from both men as to the extent of Thomas’s involvement in the murders, what was clear to the jury was that, “Mr Thomas was present and that he was a willing participant.”
During the four week-long trial, the Crown called 23 witnesses to support its case. The defence only called Thomas, who gave an unsworn statement saying that, despite observing the murders, he did not participate in the killings.
Thomas, the court also heard, had been convicted for sex with a person under 16 in 2017 while on remand for this crime. He had been given a suspended sentence for that offence. Community residents gave a negative account of the cab driver’s lifestyle in the social enquiry report compiled by probation officers ahead of sentencing.