ATTORNEY Courtney Rowe — who is defending quality analyst Rushelle Foster who was in January found guilty of manslaughter in the 2019 stabbing death of national senior women’s footballer Tarania “Plum Plum” Clarke — has said a custodial sentence should be a “last resort” for his client.

Clarke, a rising star in the sporting arena, was stabbed to death during a dispute with Foster over a cellular phone about 8:50 pm on October 31, 2019 at Limelight Plaza in Half-Way-Tree, St Andrew.

The sole eyewitness, who was the first to take the stand in the Home Circuit Division of the Supreme Court when the trial began on January 8, 2023, had told the court that on the evening in question there was an argument between the Reggae Girl and the convicted woman. In that argument the witness said Foster accused Clarke of deliberately ignoring her calls. The witness said Clarke responded by saying her phone was acting up and that other individuals were also experiencing difficulties contacting her.

The witness said Foster lunged forward and tried to grab the phone from Clarke, who pushed her hand away. She said Foster then brandished a knife and stabbed the footballer in her side.

The court was told that when Clarke gasped, “Yuh stab mi,” Foster, who has claimed that she and Clarke were involved “in an intimate relationship”, reportedly said, “So what? Mi wi do it again,” and stabbed her a second time.

Thursday, Rowe, in batting for his client to be given a “non-custodial sentence” during his plea and mitigation address before Supreme Court judge, Justice Leighton Pusey in the Home Circuit Division of the Supreme Court in downtown Kingston, harped on the finding of the jury which he said indicated that they had determined that Foster was guilty of involuntary manslaughter as against voluntary manslaughter.

Involuntary manslaughter is established where it is found that a defendant did not intend to cause ill or grievous bodily harm.

“I remind your lordship of the utterance that was made by the foreman when the jury first returned to give its verdict. The foreman, who stood on behalf of the judges of the facts, indicated clearly that the jury did not find that Miss Foster had an intention to kill Miss Clarke — and it was this finding that they sought further guidance from your Lordship as to what should be done. They were sent back to deliberate and they came back and said manslaughter,” Rowe contended.

“Bearing such utterance in mind I posit that Miss Foster, though found guilty of manslaughter by her peers, be considered to have been found guilty of involuntary manslaughter — and this is based on the utterance by the foreman that the jury did not find that she had an intention to kill,” Rowe said further.

According to the attorney, while both voluntary and involuntary manslaughter are serious offences, voluntary manslaughter is “more serious because it bears an intention to kill”.

“I ask that your lordship, in considering a sentence, start at the lower range given the fact that I posit that the verdict is really that of involuntary manslaughter based on the utterance of the foreman on behalf of the jury. I also indicate that — according to the sentencing guidelines which highlight [that for] voluntary manslaughter that the usual range is three to 10 years — that you find the usual range to be of a lesser amount given that, based on the utterance of the foreman, that Miss Foster was found guilty of involuntary manslaughter,” he said.

Rowe also pointed to a pronouncement in a ruling by former president of the Court of Appeal Justice Dennis Morrison that sentencing for manslaughter “should generally reflect the difference, the intrinsic seriousness between that offence and the offence of murder”.

“I am asking that in sentencing you look to the lower end of the spectrum and start at the lower range and a lower starting point. When you look at the social enquiry report of Miss Foster it indicates she was brought up in a nuclear family, had a good upbringing. It indicates that she recognised the impact and seriousness of the offence…I ask that you find that she is someone fit to be considered fit for rehabilitation. I remind your lordship that a custodial sentence should be utilised as a last resort, and that I ask that you start at a non-custodial sentence in relation to Miss Foster,” Rowe pleaded.

Justice Pusey, in responding to the points raised by the attorney, said, “Let me say this very clearly: Manslaughter, as you have correctly said, is one of the offences which has the greatest range…manslaughter can come out of circumstances which are closely connected — almost close to murder and other circumstances… circumstances and the level of culpability can vary greatly so therefore the court always takes very serious consideration in terms of sentencing for manslaughter. This is why there is such a variation.”

In ruling that Foster should return for sentencing on March 15, Justice Pusey said: “There are manslaughter cases in which the sentence is non-custodial or a fine, and there are manslaughter cases where it can go almost to life imprisonment…so it’s a large range and the court always thinks it necessary to take some time [to consider].”

Thursday, a final character witness taking the stand on behalf of Foster said she had known the quality analyst from birth and could vouch that she was “not a violent person” but was rather the victim of “an unfortunate situation”.

“I don’t have any challenges with her and she growing up in our community,” the witness said, adding that when she heard about the conviction “it was a really sad occasion for the family as nobody in the family has ever had a challenge of this sort”.