The Queen v Yolanda Royer

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Thom JA
• Judgment Date: 21 September 2018
• Neutral Citation: MS 2018 CA 2
• Docket Number: MNIHCRAP2018/0001
• Date: 21 September 2018

Between:

The Queen

Appellant

and

Yolanda Royer

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

MNIHCRAP2018/0001

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Case stated — Review of sentence by judge other than sentencing judge — Interpretation of sections 56 and 84 of Supreme Court Act of Montserrat — Procedure to be adopted when person sentenced to pay fine defaults — Section 26 of Penal Code of Montserrat

Ms. Yolanda Royer, a former employee of Delta Petroleum Montserrat Ltd (“Delta”), was charged with several offences following an audit on the accounts of Delta. In 2013, she pleaded guilty to theft and money laundering and was sentenced to pay compensation for theft in the sum of $116,035.80 within 2 years and to pay a fine of $50,000.00 within 36 months. She was also sentenced to 10 days imprisonment with time spent on remand to be deducted and to pay a fine of $100.00 for the offence of money laundering.

Ms. Royer failed to pay in full, the compensation and fine in relation to the offence of theft within the time stipulated. In October 2017, she was summoned by the Registrar of the High Court to explain why she defaulted in payment. In November 2017, Ms. Royer appeared before another judge and requested that the fine be reduced due to her difficult financial circumstances. The second judge found the sentence to be excessive and varied the fine of $50,000.00 to $3000.00. In relation to the compensation in the sum $116,035.80, the judge ordered that it be continued to be paid monthly in the sum of $500.00.

Subsequently, the Director of Public Prosecution (“DPP”) made an application pursuant to section 54 of the Supreme Court Act for the case to be stated to the Court of Appeal. The judge, observing that the correct provision under which a case is to be stated is section 56, stated three questions of law to be determined by the Court. The parties having agreed on one, the following two questions remained for the Court's consideration: (1). Does section 84 of the Supreme Court Act allow any judge of the High Court to vary a sentence passed by another judge or only the original judge who passed the sentence, (2) Was a hearing enquiring into why a financial penalty had not been paid ultra vires because the court is functus from the date of sentence; so that instead, where there is a period of imprisonment to be served in default of payment of a financial penalty, and failing appeal to the Court of Appeal, a defaulter, irrespective of the circumstances is always to be sent without further hearing to prison on a warrant issued by the Registrar?

Held: the order of the second judge being a nullity:

• 1. It is a cardinal rule of statutory interpretation that where the words of an enactment are clear and unambiguous, the words must be given their natural and ordinary meaning. The words must be construed in the context of the statute as a whole. Section 84 provides that ‘any fine or penalty imposed by a judge may, at any time before it has been paid or satisfied, be reduced or remitted by him.’ This section must be read in the context of the Supreme Court Act. Sections 37 – 39 provide the general scheme within which persons who have been convicted and are aggrieved with any aspect of the trial or sentence imposed may seek relief. They are required to appeal to the Court of Appeal. Section 84 is not intended to provide a parallel appellate procedure to be presided over by another judge of the High Court. It empowers the judge who imposed the sentence to vary it before it has been satisfied. The legislature in specifically stating “by him” restricted the exercise of the power to the trial judge who passed the sentence.

  Pinner v Everett [1969] 3 All ER 257 applied; R v Morrison [2004] EWCA Crim 2705 applied.

• 2. Where the prosecution alleges that there is default in payment of a fine, the court is required to hold a hearing to determine whether there is a default, the extent of the default and whether the default is wilful. If there is default and no time was fixed to be served in the event of default, the court shall impose a term of imprisonment not exceeding six months. Where the default is wilful, the court may impose a term of imprisonment not exceeding 12 months. While the second judge was correct to hold a hearing, the prosecution having alleged that there was default in payment of the fine, the judge erred when he proceeded to exercise the powers of the trial judge pursuant to section 84 to vary the sentence, when he was in fact not the trial judge. The second judge had no jurisdiction to do so.

  Section 26 of the Penal Code of Montserrat Cap. 4.02, Revised Laws of Montserrat 2002 applied.

• 3. The power to state a case or reserve a question of law for the Court of Appeal to consider pursuant to section 56 of the Supreme Court Act is to be exercised by the judge who conducted the trial in the High Court.

Appearances:

Mr. Oris Sullivan, Director of Public Prosecutions for the Appellant

Mr. Warren Cassell for the Respondent

Thom JA

1 This is a case stated by a judge of the High Court for the Court of Appeal to determine, among other things, whether pursuant to section 84 of the Supreme Court Act, 1 a judge other than the judge who imposed a sentence has jurisdiction to vary the sentence.

2 The background facts are that Ms. Yolanda Royer was employed as an accountant with Delta Petroleum Montserrat Ltd (“Delta”). In 2011, as a result of an audit on the accounts of Delta, investigations were carried out and Ms. Royer was charged with the following offences: (a) obtaining property by deception contrary to section 218(1) of the Penal Code; 2 (b) forgery contrary to section 241(1) of the Penal Code; (c) uttering contrary to section 243(1) of the Penal Code; and (d) conspiracy contrary to the common law.

3 At the end of the preliminary inquiry she was committed to stand trial for the offences of money laundering, theft, uttering a forged document and forgery of certain documents with intent to defraud.

4 At her trial before Astaphan J [Ag.], she acknowledged appropriating $150,605.49 from Delta and she pleaded guilty to theft and money laundering. She was sentenced by Astaphan J [Ag.] as follows:

• (a) Theft:

  • i. to pay compensation to Delta in the sum of $116,035.80 to be paid within two years or at such sooner time as the property, registered as block 13/11 parcel 73, is sold.

  • ii. to undertake to keep the peace for two years, supported by two sureties in the sum of $50,000.00 and to be imprisoned for up to one year until the sureties have been taken.

  • iii. to pay a fine of $50,000.00 within 36 months or face six months imprisonment in default.

  • iv. to two years imprisonment suspended for two years.

• (b) Money laundering:

  • i. to ten days imprisonment with time spent on remand to be deducted.

  • ii. to pay a fine of $100.00

  All sentences to run concurrently.

5 Ms. Royer failed to pay in full the compensation and fine in relation to the offence of theft within the time stipulated. In October 2017, she was summoned by the Registrar of the High Court to attend court to give evidence in relation to her default in paying the compensation and fine. On 24 ^th November 2017, she appeared before Morley J who, having heard her evidence of her financial circumstances and submissions on her behalf by Mr. Cassell (the Director of Public Prosecutions did not participate in the proceedings), found the sentence to be excessive and made the following order: (i) The fine of fifty thousand dollars ($50,000.00) imposed on Yolanda Royer is hereby varied to a fine in the sum of three thousand dollars ($3000.00) of which there is a balance of seven hundred dollars ($700.00) to be paid. (ii) The order of compensation in the sum of one hundred and sixteen thousand and thirty-five dollars and eighty cents ($116,035.80) is to be continued to be paid monthly in the sum of five hundred dollars ($500.00) to Delta.

6 Morley J having varied the sentence imposed by Astaphan J [Ag.], the Director of Public Prosecutions (the “DPP”) made an application pursuant to section 54 of the Supreme Court Act for Morley J to state a case to the Court of Appeal. The basis of his application as outlined in paragraph 19 of the application is as follows:

• “1) It is contended that the learned trial judge did not have any jurisdiction to hear and review the sentence imposed by Astaphan J [Ag];

• 2) That Morley J, not being a superior court had no authority to alter a sentence imposed by a judge of similar standing.

• 3) That any alteration of the sentence had to be done by the judge which tried the matter or alternatively the Court of Appeal.”

7 The DPP requested that the following questions be determined by the Court of Appeal: (a) in a case where the High Court imposed a fine, can the fine be altered by any judge of the High Court; and (b) in a case which involves a joint enterprise where both convicts were fined and where the sentence is reduced, does fairness necessitate the alteration of the sentence of the other convicted person?

8 Morley J considered the application and observed that section 54 makes no provision for a case to be stated to the Court of Appeal. Rather the correct provision is section 56. He stated the following questions of law to be determined by the Court of Appeal:

• “(a) Does section 84 of the Supreme Court Act allow any High Court Judge to act or only the original judge?

• (b) Was a hearing ultra vires enquiring into why a financial penalty had not been paid because the court is functus from the date of sentence; so that instead, where there is a period of imprisonment to be served in default of payment of a financial penalty, and failing appeal to the Court of Appeal, a defaulter, irrespective of...