MARCIA
JUPITER and
APPELLANTS
AVA
HARRIS a/c AVA LAKHAN
AND
P.SGT.
OSCAR SILVERTHORNE
RESPONDENT
PANEL:
M.A. de la Bastide, CJ.
L. Jones, J.A.
APPEARANCES:
MR. I. STUART BROOK
appeared on behalf of MARVA JUPITER
MR. T. GUERRA, S.C.
appeared on behalf of AVA HARRIS
MS. S. CHOTE appeared on behalf of the RESPONDENT
26th
October 2001
Delivered
by M.A. de la Bastide, C.J.
These
appellants were convicted of two offences together with another accused.
One offence was stealing a quantity of clothing items from their
employer. The value of those items
was in excess of $60,000. The other
conviction was for having wasted the time of the police.
The
circumstances in which that came about was that they invented a story of a
robbery which they faked at the shop where they were employed in selling
clothes, and in statements which they gave to the police.
Subsequently they admitted both to having stolen the items with which
they were charged and also with having invented the story of the robbery. The
Magistrate sentenced them to two years imprisonment on the larceny charge and
six months on the charge of wasting police time.
Counsel for the first appellant, Marcia Jupiter, applied for leave to vary the Notice of Appeal so as to appeal against conviction and also sought leave to introduce an affidavit sworn by the appellant. A guilty plea was entered by both appellants who were represented by counsel at the trial before the Magistrate. The other appellant, Ava Harris, has not sought to extend the scope of her appeal which remains limited to the question of sentence. We have not permitted the first appellant to expand her grounds of appeal so as to challenge her conviction nor to use the affidavit which she swore.
We
have read the affidavit. In it, the
first appellant makes allegations against virtually everyone involved in this
case so far. She makes allegations
against her former employer, not only of having underpaid her-the legitimacy of
which complaint we do not pass on-but also of having sought to falsify and
inflate the value of the articles which were found to be missing when an
inventory was taken. She makes
allegations against counsel who represented her at the trial, and alleges that
she told that counsel that she was not guilty and had
only pleaded guilty because of pressure, and yet counsel took no steps to have
the plea which she had entered changed, but simply made a plea in mitigation.
I have already indicated that in our view it was quite improper of counsel for the appellant Jupiter to have allowed those allegations to be made and put before the court without having taken the elementary step of seeking a response to them from the counsel involved. His excuse that he did not know where to find her, is totally unacceptable, given that he did not even attempt to check the roll of attorneys to find out where she might be located. Trinidad and Tobago, moreover, is a relatively small community. The community of attorneys is much smaller and we do not accept that it was beyond the wit of man to have located the attorney in question. We strongly deprecate the putting forward of allegations against attorneys without having afforded them the elementary right of answering them.
In
the affidavit allegations were also made against the police that they had forced
this appellant not only to sign the confessional statement which she gave, but
also of having pressured her into pleading guilty. I want to say that we reject all these allegations as
patently untrue.
I
do want to emphasize that while attorneys are not only entitled but bound to
accept their clients’ instructions, they ought not on the basis of such
instructions to advance allegations of misconduct against other persons,
particularly persons on the Bench, attorneys and policemen, without having used
the means available to them of checking those allegations.
This was not done in this case and it is most regrettable that it was
not.
I
have already indicated that if in future conduct of this sort is repeated, then
we may find it necessary to take steps against the attorney responsible by way
of disciplinary proceedings. I want
to remind attorneys that quite apart from the Disciplinary Committee, the High
Court has power to deal with misconduct on the part of attorneys and it has done
so in the past, with rather serious consequences for the attorneys involved. No one is attempting to deter attorneys from performing their
rightful functions and discharging their obligations to their clients, but they
must exercise some sense of responsibility when they do so.
The
appeal against sentence on behalf of the appellant Jupiter was founded on the
alleged failure of the Magistrate to take into account the fact that this
appellant is a single parent of two young children.
It was urged that she ought not to be sent to prison because if she were,
then there would be no one to look after the children, or to look after them
adequately.
Now,
it happens almost on a daily basis in these courts that children are
unfortunately deprived of the care and attention of one or more of their parents
– often there is only one parent - as a result of the criminal conduct of that
parent (or those parents) which leads to their being imprisoned.
It is highly regrettable from the children’s point of view that this
should occur. But it is a matter
which parents should consider before they embark on criminal activity. I am afraid that the interest of the children cannot prevail
over the demands of the criminal justice system for punishment.
In this case we find that the plea that these children will suffer if the
mother is imprisoned is not a compelling reason to rescind the sentence of
imprisonment which was imposed on this young woman.
The
value of the goods stolen in this case is very substantial.
The plea was made by Mr. Guerra on behalf of the appellant Ava Harris
that one should take account of the fact that these women were being underpaid.
As I said, we are not in possession of the facts one would need to
determine that issue. Admittedly,
on the face of it, it would appear that they were being underpaid if what they
said about their hours of work and their pay was correct.
But that is no justification for helping yourself to your employer’s
goods and more especially when the extent of the self-help is more than over
$60,000.
There
is, in our view, no basis for reducing the sentences in this case, even after
having taken into account the fact that these are first offenders, they are
young women and in the case of one appellant is a single parent of two children.
I
would point out that in the case of the appellant Jupiter, it can hardly be
urged on her behalf that she showed remorse by confessing to the police that she
had committed the larceny and by pleading guilty, in the light of her attempt
now, having wasted the time of the police, to waste the time of this court.
To do so, perhaps unfortunately, is not an offence but it is something
which we are entitled to take into account.
The
appeal is dismissed and the sentences are affirmed.
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