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TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App: 14 of 2011

BETWEEN

SUDESH BALDEO Appellant

AND

THE STATE Respondent PANEL: A. YORKE-SOO HON, J.A. R.NARINE, J.A. P.MOOSAI, J.A. Appearances: Mr. J. Singh for Appellant Ms. J. Honore-Paul for the Respondent DATE DELIVERED: 30th October, 2013

JUDGMENT

DELIVERED BY: P. MOOSAI, J.A.

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1. Introduction.

1. On June 27, 2011 the Appellant was:

(1) Convicted of three (3) counts of incest and one count of grievous sexual assault against his daughter,

RB, who was born on July 2, 1991 and would have been 11 and 13 years old at the time of the

commission of the said offences.

(2) Found not guilty on one count of grievous sexual assault against his other daughter,SB, who was born

on October 11, 1993 and would have been 9 years old at the material time.

2. The material dates with respect to the commission of these 4 offences against RB for which the

Appellant was convicted are as follows:

(a) Incest: on a day unknown between February 28, 2003 and May 1, 2003.

(b) Incest: June 11, 2003.

(c) Grievous Sexual Assault: On a day unknown between February 28, 2003 and April 1, 2003.

(d) Incest: April 30, 2005.

3. On June 29, 2011 the Appellant appealed against his conviction. At the hearings of the instant appeal

we grated leave to Mr. Singh, Counsel for the Appellant, to appeal against sentence.

4. The learned trial judge sentenced the Appellant to the following terms of imprisonment:

(1) On each of the 2 counts of Incest which occurred in 2003 to 15 years with hard labour.

(2) On the count of grievous sexual assault which occurred in 2003 to 7 years with hard labour.

(3) On the count of incest which occurred in 2005 to 20 years with hard labour.

All of the said terms of imprisonment were ordered to run concurrently and from the date of conviction.

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2. The facts.

5. The facts can be summarized as follows. With respect to the offence of grievous sexual assault, on

Easter Sunday in March, 2003,RB, then 11 years old, and her family had gone on an excursion. When

they returned home she had dinner and had gone to bed. Her sister, SB was also in that bed with her.

The Appellant came and lay down next to her. He placed his finger in her vagina and moved it in and

out. She did not consent to such conduct.

6. With respect to the offence of incest between February 28 and May 1, 2003 (Count 2), on the

Saturday morning following Easter Sunday the Appellant had sent RB’s mother to the market and then

sent her two brothers and sister downstairs. The Appellant then called her into the bedroom and

committed the offence of incest, thereby causing her a lot of pain. Afterwards he told her that if she told

her mother he would kill her. She felt afraid because the Appellant used to beat her mother and

brothers and sister. Further whenever any of the children did anything wrong, the Appellant would beat

all of the children. This would happen almost every other week. She herself would get licks if she did

not do her homework or her chores. The Appellant would beat her and her siblings on their hands, legs

and back. As a result of these beatings she would have marks, swelling and bruises on her body.

7. With respect to the other count of incest in 2003, on June 11, 2003 the Appellant came into the

bedroom. Both RB and her sister were on the bed and her sister had fallen asleep. The Appellant lay

down next to RB and committed the second offence of incest. Again the Appellant threatened to kill her

if she told her mother.

8. On June 20, 2003 RB complained to her mother and made a report to the police. The medical

evidence was consistent with sexual activity having taken place. As a result the Appellant was charged

for the said offences.

9. Having regard to the pending charges, the entire family moved out of the household and went to

reside at RB’s grandmother’s house. A condition of the Appellant’s bail was that he was not to reside at

the home where RB and SB resided.

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10. On April 30,2005, the Appellant took RB’s brother, Daniel, and her mother to the hospital. Daniel

had to be kept overnight and his mother stayed with him. His mother told the Appellant to drop off

some bread at the house where the children were, but he was not to remain.

11. The Appellant seized the moment to commit the final offence of incest against RB by going to the

house where the children were and waiting until the others had dropped asleep. During the course of

the commission of this offence the Appellant placed a pillow over RB’s head. At that time RB’s sister

was asleep on the same bed.

12. The following day another report was made to the police. RB’s medical examination revealed the

presence of sperm. The Appellant was charged for this final offence of incest and remained in custody

from May 31, 2005 to July 12, 2005, a period of some 43 days. It is manifest that, during the sentencing

phase, neither attorney brought this period of 43 days to the specific attention of the trial judge. As such

the judge, when he came to sentence the Appellant, only addressed his mind to the period of 5 years

and 1 month (May 22, 2006 to June 26, 2011) spent by the Appellant in custody on remand.

13. On May 22, 2006 the Magistrate committed the Appellant to stand trial for these offences and

refused to grant him bail. The Appellant has been in custody since that date.

3. Grounds of appeal.

14. With respect to the Appellant's appeal against conviction, Mr. Singh, Counsel for the Appellant, has

quite candidly and commendably conceded that he was unable to advance any reasonably sustainable

ground to assail the judge's summation. Mrs. Honore–Paul, Counsel for the State, has expressed similar

sentiments. We are grateful to both Counsel for adopting what we consider to be the correct position. In

the circumstances we dismiss the appeal against conviction and affirm the conviction. That would have

been sufficient to dispose of the appeal, but we granted Mr. Singh leave to argue the question of the

sentence imposed by the trial judge.

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15. Again Mr. Singh has conceded that he could find no fault with the trial judge for imposing that range

of sentence on the 3 counts of incest and one count of grievous sexual assault. Mr. Singh’s real concern

was whether, consistent with the authorities, the Appellant had been given full credit for time spent in

custody on remand.

4. The issue for determination.

16. Accordingly the issue that arises for determination in the instant case is whether the trial judge, in

sentencing the Appellant, gave him full credit for time spent in custody on remand.

5. Analysis of the law.

17. In Trinidad and Tobago there is no statutory provision that makes it mandatory for a sentencing

judge to give credit for time spent in custody on remand prior to sentencing. The practice is governed

by the common law and the sentencing judge has a discretion as how to treat time spent in custody on

remand. The only reference to the computation of time spent in custody pending the determination of a

matter is found in section 49 of the Supreme Court of Judicature Act Ch 4:01. This section is of

application solely to persons on appeal.

18. In the United Kingdom, the Criminal Justice Act 2003 offers guidance to the sentencing court

when crediting time spent in custody on remand. By section 240(3) of the Criminal Justice Act 2003, the

court must direct that the number of days for which the offender was remanded in custody in

connection with the offence or a related offence shall count as part of the custodial sentence, unless the

judge decides, pursuant to section 240(4), that no credit or reduced credit should be given in the

interests of justice. Sub-section (5) of that Act requires the court to state in open court the number of

days spent on remand in connection with the offence and the number of those days to be counted as

time served under the sentence.

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19. The Privy Council in Callachand v State of Mauritius1 underscored the significance of the loss of the

basic right to liberty in advocating an arithmetical approach to calculating the amount of time spent in

custody prior to sentence. At paragraph 9 Sir Paul Kennedy stated:

"The Board is not concerned in the present case with time spent by a person in custody as an

appellant. So their Lordships need not consider the need to deter frivolous appeals. But they are

concerned with the basic right to liberty. In principle it seems to be clear that where a person is

suspected of having committed an offence, is taken into custody and is subsequently convicted,

the sentence imposed should be the sentence which is appropriate for the offence. It seems to

be clear that any time spent in custody prior to sentencing should be taken fully into account,

not simply by means of a form of words but by means of an arithmetical deduction when

assessing the length of the sentence that is to be served from the date of sentencing…"

20. Our Court of Appeal has had occasion during the past year to address the issue of time spent in

custody. In so doing it has considered Callachand and the decision of the Caribbean Court of Justice in R

v da Costa Hall2 (which followed Callachand): see Borneo v. The State3 and Ramberan v. The State4.

The present case furnishes us with yet another opportunity to provide guidance to courts embarking on

a sentencing exercise where the issue to be addressed revolves around time spent in custody on

remand. It is fair to say that the development of such guidelines is consistent with the principle of open

justice which, in its various manifestations, is the basic mechanism for ensuring judicial accountability.

21. In Da Costa Hall5, the majority of the panel of CCJ in offering guidance as to how to treat time spent

on remand, laid down the primary rule in these terms at para 26 : " The primary rule is that the judge

should grant substantially full credit for time spent on remand in terms of years or months and must

state his reason or reasons for not granting a full reduction or no reduction at all".

1 [2008] UKPC 49 (PC).

2 (2011) 77 WIR 66 (CCJ).

3 Cr App No 7 of 2011 (CA).

4 Cr App No 14 of 2010 (CA).

5 da Costa Hall (n2).

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22.Relying on da Costa Hall, the Court of Appeal in Ramberan6 acknowledged the primary rule as being

that the judge should grant substantially full credit for time spent on remand in terms of years or

months and must state his reason or reasons for not granting a full reduction or no reduction at all: para

60. Further the Court of Appeal agreed that the judge should state with emphasis and clarity what he or

she considers to be the appropriate sentence taking into account the gravity of the offence and all

mitigating and aggravating factors, that being the sentence he would have passed but for the time spent

by the prisoner on remand. Acknowledging the existence of a residual discretion in the sentencing judge

not to apply the primary rule, Soo-Hon JA at para. 62 went on to state:

"62. The majority indicated, and we agree, that should a judge choose to depart from the

primary rule, he ought to set out his reasons for such departure. In this regard the Court also

provided an inexhaustive (sic) list of exceptions to this primary rule at paragraph 18 as follows:

(i) where the defendant had deliberately contrived to enlarge the amount of time spent on

remand, where the defendant is or was on remand for some other offence unconnected with

the one for which he is being sentenced;

(ii) where the period of pre-sentence custody is less than a day or the post-conviction sentence

is less than 2 or 3 days;

(iii) where the defendant was serving a sentence of imprisonment during the whole or part of

the period spent on remand; and

(iv) where the same period of remand in custody would be credited to more than one offence."

23. In Borneo7 the Court of Appeal helpfully summarised the principles of da Costa Hall8 and the type of

arithmetical exercise to be conducted. At page 18 Narine JA stated:

"In R v. da Costa Hall (2011) 77 WIR 66 the Caribbean Court of Justice followed the decision in

Callachand (supra) that pre-sentence time spent in custody should be fully taken into account in

imposing sentence. The trial judge should clearly set out what he considered to be the

appropriate sentence taking into account the seriousness of the offence, and all of the

mitigating and aggravating factors. From this sentence, he should deduct any pre-sentence time

spent in custody. If the judge decides not to follow the prima facie the rule of granting

substantially full credit for time served prior to sentence, he should set out his reasons for doing

6 Ramberan (n4).

7 Borneo (n3).

8 da Costa Hall (n2).

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so. In the interest of transparency, whether he grants full credit or not, a sentencing judge has

to explain how he has dealt with pre-sentence time spent in custody."

24. We would add that it is the duty of counsel, both prosecution and defence, to seek immediate

clarification of any ambiguities that may arise in the course of the judge's sentencing remarks.

Prosecuting counsel should be particularly vigilant in this regard. (See R v. Barber9.) Further the instant

case emphasizes the importance of providing sentencing judges with accurate information as to time

served in custody on remand in order to enable them to address the issue fully and arrive at an

appropriate sentence. Indeed it was only a few days ago (October 24, 2013) that this Court received

correspondence from the Prisons which, for the first time, set out in a formal fashion the exact amount

of time that the Appellant had been in custody on remand. This revealed that there were 43 days (May

31, 2005 to July 12, 2005) which the judge, quite understandably, did not take into consideration in

allowing full credit for time spent in custody on remand.

The Trial Judge’s Approach

25. In determining an appropriate sentence the trial judge considered the relevant authorities and both

aggravating and mitigating factors. Further the judge, on being referred to Callachand10 by Mr. Rooplal,

counsel for the Defence, and the principle espoused therein, namely that full effect is to be given to

time spent in custody on remand, indicated his agreement with that submission. Additionally the judge

expressly stated that, having regard to the authority of Tiwari v. The State11, he was taking the time

spent by the Appellant in custody on remand (approximately 5 years and 1 month) "into consideration

for your benefit, make that clear". However the trial judge failed to stipulate with the requisite degree

of precision how the time spent by the Appellant in custody on remand factored into the actual

sentence he imposed: Borneo12 page 18. Be that as it may, that of itself is not sufficient to allow the

appeal on sentence. We are of the view that, notwithstanding the said failure and, save for the period of

43 days not specifically brought to the attention of the trial judge, the sentence imposed was not

manifestly excessive or wrong in principle: Archbold para 7 – 141 (2013).

9 [2006] EWCA Crim 162 (CA).

10 Callachand (n1).

11 [2005] 67 WIR 309 (PC).

12 Borneo (n3).

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26. In coming to this conclusion we bear in mind that, pursuant to section 9 of the Sexual Offences Act,

Chapter 11:28, a person who commits the offence of incest is liable on conviction to imprisonment for

life if committed with a person under 14 years of age. Further a person who commits the offence of

grievous sexual assault is liable on conviction to imprisonment for the remainder of his natural life if

committed with a person under the age of 12 years.

27. We also note that in this case the aggravating factors would have included:

(1) The Appellant would have been 34 and 36 years old at the material times that these offences of

incest and grievous sexual assault would have been committed against his daughter in 2003 and the

additional offence of incest in April, 2005. A clearer breach of trust could not be imagined.

(2) His daughter,RB, would have been a child, aged 11 and 13 respectively and would have been

subjected to multiple (4) acts of serious sexual violation.

(3) The 2005 offence of incest would have been committed while the Appellant was on bail for the 2003

offences of incest (2 charges) and the charge of grievous sexual assault against RB. The repetition of

such criminal conduct, even after being charged, clearly demonstrates a total disregard for the criminal

justice system.

(4) The 2005 offence of incest would have been committed at a time when the Accused was, as a

condition of his bail, ordered not to reside at the home of the virtual complainants ( RB and SB,both

young children at the time). Notwithstanding the existence of such an order, the Appellant returned to

the house occupied by the virtual complainant on the night of April 30, 2005, after dropping off his wife

and son at the hospital and committed the final offence of incest against RB. On that occasion the

Appellant knew fully well that his wife had to overnight at the hospital with their ill child and, even after

being warned by his wife simply to drop off some bread and not stay over at the house, the Appellant

contemptuously ignored her and proceeded to commit the said offence.

(5) The Appellant, in the course of committing these heinous offences of incest and grievous sexual

assault in 2003 against RB, threatened to kill her if she told anyone. The offence of incest in 2005 was

also accompanied by physical violence in that the Appellant placed a pillow over the head of his

daughter during the course of the commission of same. Indeed, and in keeping with the modus operandi

of some sexual predators or deviants, the Accused embarked on a calculated campaign of physical and

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psychological abuse of his wife and 4 young children (2 boys and 2 girls [including RB]) to terrorize and

silence them.

(6) At least 3 of the sexual assaults on RB occurred while the siblings were in the same room, potentially

exposing them to the sordid acts in the event that any of them awoke.

(7) The younger female sibling,SB, accidentally stumbled upon the Appellant while he was in the course

of committing one of the acts of incest on RB in 2003 (Count 2).

(8) The emotional and psychological trauma caused to victims and their families from these types of

crimes.

28. Further the Defence put forward on behalf of the Appellant mitigating factors which included:

(1) The Appellant was then 42 years of age and had an otherwise clean record, but for the breach of a

protection order against his wife for which he was ordered to pay a fine.

(2) The Appellant had several medical complications, including diabetes, hypertension and heart

problems for which he was on medication.

29. On the issue of sentencing, both Attorneys at the trial referred the trial judge to the relevant

authorities. It may be helpful for this court to mention a few of the decided cases in this area.

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30. In Neville Perry v The State13, the Appellant was convicted of 2 counts of incest with his daughter,

"Kay", who was 13 and 15 years old at the material times. The trial judge sentenced the Appellant to 20

years imprisonment in respect of each of the 2 counts. There was no appeal against sentence.

31. In John Alfonso v The State14, offences of incest were perpetrated against the victim over a period of

time up to the age of 12 by her natural father, an 87-year-old man. The victim was 9 years old at the

time of the first incident. The Appellant was convicted of 3 counts of incest and one count of indecent

assault. With respect to the 3 counts of incest, the Appellant was sentenced to 10 years simple

imprisonment on each count. These sentences were to run concurrently. A sentence of one year simple

imprisonment was imposed for the offence of indecent assault and this was ordered to run

consecutively to the sentences of 10 years making a total of 11 years simple imprisonment.

32. The Court of Appeal in John Alfonso found that the trial judge took into account the Appellant's age,

health and other relevant factors. The sentence was affirmed even though the court thought that the

sentence was on the low side and it might have passed a higher sentence in the region of 15 years. The

court opined that offences of incest committed against young girls over a period of time should

ordinarily attract a sentence in the range of 15 to 18 years. Thus Sharma CJ at page 5 stated:

"Where offences of incest are perpetrated against a young girl, initially 9, and over a period of

time up to the age of 12 years by her natural father who breached his position of trust, as in the

instant appeal then that must ordinarily attract a sentence in the range of 15 to 18 years

imprisonment even if the offender is over 60 years."

33. In Francis John v The State15, the Appellant was convicted on May 27, 2002 of committing a solitary

act of incest against his daughter and was sentenced to a term of imprisonment of 20 years. At the

material time the victim was 13 years old. The Court of Appeal reduced the term of imprisonment to 15

years, but ordered the sentence to begin from the date of determination of the appeal (March 10,

2004).

13

Cr App No 36 of 2002 (CA).

14 Cr App No 13 of 2004 (CA).

15 Cr App No 37 of 2002 (CA).

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34. Finally in Soonar Mungroo v The State16 Cr App No 17 of 1995 the Appellant entered the bedroom

of his 13-year-old daughter and forcibly had sexual intercourse with her at knife point. The Court of

Appeal confirmed a sentence of 25 years with hard labour for incest.

6. Conclusion.

35. We consider that the appropriate range of sentence in a matter of this nature (incest) is 15 to 18

years. One must then factor in all aggravating and mitigating factors, including the fact that the

Appellant in the instant case, even after being charged and on bail for similar offences and ordered not

to reside at the home of the virtual complainant, visited the home and committed another offence of

incest against her in 2005. Manifestly there were serious aggravating factors in the instant case. Thus a

sentence in the region of 25 years would not have been inappropriate for the latter offence of incest

committed in 2005. Accordingly we are of the view that in all the circumstances of the case, save for the

period of 43 days which the Appellant spent in custody on remand and which was not brought to his

specific attention, the trial judge gave the Appellant full credit for the time spent in custody on remand

when he sentenced him to the following terms of imprisonment:

(1) On each of the 2 counts of incest which occurred in 2003 to 15 years with hard labour.

(2) On the count of grievous sexual assault which occurred in 2003 to 7 years with hard labour.

(3) On the count of incest which occurred in 2005 to 20 years with hard labour.

Further we are satisfied that the judge exercised his discretion properly and the sentence imposed by

him was neither manifestly excessive nor wrong in principle. However we would allow the appeal

against sentence to the limited extent that the Appellant should be given full credit for the 43 days

spent in custody on remand.

7. Disposition.

38. By reason of the foregoing the appeal against conviction is dismissed and the conviction affirmed.

Leave to appeal against sentence is allowed and the sentence is varied to the extent that full credit must

16

Cr App No 17 of 1995 (CA).

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be given to the Appellant for the 43 days that he has spent in custody on remand. The sentence is to

run, consistent with the trial judge's order, from the date of conviction.

..................................

A. YORKE-SOO HON

Justice of Appeal

.......................................

R. NARINE

Justice of Appeal

........................................

P. MOOSAI

Justice of Appeal