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Bid For More Time To Challenge Leniency Of Sentence Denied

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Crown's bid at seeking more time to challenge the leniency of a man's sentence for having sex with his lover's 15-year-old daughter has been shot down by the country's second highest court.

Court of Appeal President Sir Hartman Longley, and fellow Justices Roy Jones and Sir Michael Bartnett, in a written ruling, concluded the convict Linty Stuart had already satisfied his sentencing requirements by the time the Crown got around to appealing it.

According to the ruling, Stuart was convicted and sentenced to pay $2,000 to his victim; $500 to the Treasury (time limits were imposed for the payment of the compensation by June 30, 2016); to complete 150 hours of community service as determined by the Department of Rehabilitation Services; and to keep the peace and be of good behaviour for one year, in default of which he was to serve two years in prison.

Stuart complied with the requirements of his sentence, as there was a follow up hearing set by the sentencing magistrate for May 30, 2017 to ensure compliance with the order.

The appellate judges said though it was not in possession of the magistrate's note for that hearing, no application was made to exact the default punishment and to seek Stuart's imprisonment. By that time, he had apparently kept the peace for a year.

Subsequent to Stuart's conviction and sentence on May 30, 2016, the COP filed a Notice of Appeal on June 8, one day out of time. However, no application for an extension of time was made until November 18, 2016. That application, as well as an amended Notice of Appeal, were not served on Stuart until June 29, 2017.

That also meant, as the appellate judge's noted, that at the hearing of the application, more than two years had passed since Stuart had been at liberty.

But by that time, Stuart had already complied with the obligations imposed on him as punishment for the offence, including keeping the peace for one year.

According to the ruling, the COP, in a filed affidavit, said the reason the first Notice of Appeal was filed a day late was because the case was heard in Bimini and it took some time to get the file. The COP said it was moved to contest Stuart's sentence as a result of a complaint lodged by the girl's mother that the sentence was too lenient.

However, the appellate judges said no reason was given as to why it took so long to make the application for an extension of time, and to serve it on Stuart, particularly considering that the rules allowed the COP to serve notice of its application on counsel for Stuart who represented him throughout the trial, as well as on Stuart himself.

Evidence

According to the appellate judges, the evidence is that Stuart also lived in Bimini, and no evidence was adduced by the COP of any attempts to find or serve him with notice of the application before June 29, 2017.

The appellate judges said counsel for the COP tried to give reasons on his feet but "failed to impress" them that there were any sound reasons for the failure to make the application earlier, or to account for the "inordinate delay".

Concerning the COP's assertions that the sentence was unduly lenient, the appellate judges noted that the COA, differently constituted, made it clear that in a case of "breach of trust" such as Stuart's matter, the starting point for a person convicted of a sexual offense with a minor if a custodial sentence, in principle.

Counsel for the COP suggested a sentence range of three to seven years was appropriate in the circumstances, however, the appellate judges said the magistrate "appeared to have ignored" that principle when he imposed the sentence on Stuart. The appellate judges further said even though the magistrate provided for two years imprisonment in default, it still did not accord with the view expressed by the COA in a previous matter, a decision they said the magistrate "would have had to been bound to follow if it had been brought to his attention".

Based on that, the COP asserted it had a strong case and that leave should be granted in the circumstances to extend its time in filing an appeal against Stuart's sentence, despite the delay.

The appellate judges, in response, conceded that even if the default provision took effect against Stuart, thus meaning he would be sent to prison for two years, that sentence would still have been unduly lenient.

However, the appellate judges said when considering that Stuart has been out of prison for over two years, has not breached the provisions of his punishment and has kept the peace as ordered, the question that arose was should they exercise their discretion to increase Stuart's sentence and commit him to prison in circumstances where the COP has been so "dilatory" in making its extension of time application and not providing an explanation for the "inordinate delay".

The appellate judges determined that as the COP "failed miserably" in its expediency in appealing the matter, acceding to their application would, on its face, fall into the category of "unfairness" towards Stuart, notwithstanding that they found the sentence to be unduly lenient.

"…In our view, the completion of the sentence before the making of the application was a formidable factor that militated against the grant of an extension of time," the appellate judges said.

"Having regard to all the circumstances of the case, and giving due consideration to its merits and the events that have transpired since the imposition of the sentence, we were of the view that this would not be an appropriate case in which to exercise our discretion to extend the time".

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