Law Report - unlawful imprisonment of children

JS v Miller [2012] SC (Bda) 32 App (13 June 2012).

A fourteen year old appealed against the decision of the Family Court. He submitted that (1) the Family Court had no right to sentence him to corrective training; and (2) the Bail Act did not apply to children.
It was held by Kawaley CJ that it was abundantly clear that corrective training is not a sentence that can be passed on a child under the age of 16 and that to have imposed such a sentence was wholly inexplicable and "astonishing" [12]. Furthermore, any sentence of corrective training must specify the maximum period of the sentence [22]. The Bail Act 2005 is intended to apply to children as well as to adults [29].

More generally, sentencing courts must exercise constant care to ensure that no person accused or convicted of a criminal offence is unlawfully detained. If an unlawful sentence is believed by counsel involved in a case to have been imposed, prompt action must be taken to bring the unlawful detention to an end [16].


Comment - in a case where somebody has been unlawfully imprisoned by a court, the "Great Writ" of habeas corpus might be used as a swift remedy to get before the Supreme Court to release a prisoner. Habeas corpus is one of the oldest and most effective remedies for preventing unlawful imprisonment. When the court receives the writ, it will command the production of the prisoner before the court, make inquiries into whether the detention is lawful and, if necessary, order the release of the prisoner. It's not supposed to be used for a criminal appeal but it is probably arguable that it is appropriate when it is claimed that the imprisonment is wholly unlawful, as opposed to merely excessive.

Law Report - appeal against "manifestly inadequate" sentence

In Raynor v Davis [2012] SC (Bda) 29 App (1 June 2012), the Respondent was sentenced by the Magistrates' Court to one year in prison after pleading guilty to a charge of burglary. He had broken into the hotel room of a couple both in their seventies. When the husband sought to restrain him, the Respondent shouted that he had a gun, before escaping from the scene. The incident had the potential to damage Bermuda's commercial interests, due to the negative publicity from attacks on tourists. At the time of the offence the  Respondent was on probation for Prowling.

The Appellant, a police officer, appealed on the grounds that the sentence was manifestly inadequate.

Kawaley CJ noted that the Respondent's record reads like the resume of a man who has dedicated his life to the diligent pursuit of non-violent property offences. The Supreme Court can be greatly assisted by UK Sentencing Council Guidelines, although they are of limited value to the Magistrates' Court. Drug addiction is not a mitigating factor.

The dictum of L.A Ward J in Osborne v Harvey [1987] Bda LR 78 was followed, where he said:
"The leading authority in Bermuda on the meaning of ‘manifestly inadequate’ is
Plant (R) v Robinson Criminal Appeal No. 1 of 1983 in which the Court of Appeal
held that manifestly inadequate means obviously inadequate, that is to say
obvious to the appellate tribunal that the sentence is much too low and fails to
reflect the feelings of civilized society to the crime in question. It also stated that a
sentence is manifestly inadequate when it is obviously insufficient because the
judge or magistrate has acted on a wrong principle or has clearly overlooked, or
undervalued, or overestimated, or misunderstood some salient features of the
evidence. It is a failure to apply right principles"

In the circumstances the one year sentence was manifestly inadequate. A sentence of 30 months was substituted, taking into account that the Respondent was also serving other sentences.