The 10-year prison sentence given to one of the robbers who targeted the Russell’s Cineplex in 2013 has been reduced by two years at the Court of Appeal.
Nine years ago five persons hatched a plan to rob the employees of the Cineplex at gunpoint. Two of the men carried out the robbery, and they were successful in beating up employees and taking thousands of dollars in cash. They fled the scene without their masks on and happened upon one Rodney Grant. One of the assailants pointed a gun at Grant, shooting him once in the face, killing him.
The five men found to have been involved were: Cleroy Pinder, Zimroy Maurice Guy, Kamara George, Chad Jacobs and Symcy Williams. Pinder and Williams were the two who held the employees at gunpoint on July 28, 2013.
All men were charged on July 30, 2013, for several offences ranging from trespass to murder. On September 30, 2014, Symcy Williams pleaded guilty to five charges, but ‘not guilty’ to five charges including murder.
However in March of 2017 he entered a plea bargain with the prosecution. Williams agreed to give evidence against his co-accused in exchange for immunity on the murder charge as well as the withdrawal of all charges against him apart from robbery.
Three months later Williams was sentenced to 10 years’ incarceration for robbery. He is now imprisoned along with the other men that he testified against.
His lawyers found the sentence was too excessive in the circumstances and filed an appeal.
Lawyers Chante Francis and Duane Daniel appeared for Williams before the Court of Appeal on Wednesday, July 20.
The attorneys zoomed in on whether or not the judge, Justice Brian Cottle, had incorporated a discount for Williams’ assistance to the police and the office of the Director of Public Prosecutions(DPP). Further, if the judge did do so, they questioned the exact percentage of the discount given.
Justice Cottle was quoted as saying during the sentence: “For your(Williams’) assistance or your willingness to assist the police – that would have gone in your favour. There is also the problem of your criminal history, which goes against you. I think those two things balance themselves out.”
Justice of Appeal(JA) Gertel Thom questioned, “Isn’t the judge saying that ‘the discount I’m giving for the assistance is balanced out by the other aggravating factor of the previous convictions of the appellant’. So to say that he did not take it into account or make any adjustment to the sentence in relation to the assistance would not be quite accurate would it?”
Counsel Francis responded, “The problem that we’re having is that there was no percentage given so we really and truly are unable to ascertain how much discount was given if any was given, and if a discount was given, my lady, whether that discount would have been sufficient in light of the common law position.”
They submitted case law showing that offenders who assisted the authorities received discounts ranging between 25 and 33 per cent.
Justice Thom also questioned whether the judge had before him a full appreciation of the assistance given by Williams.
She was told that whereas Williams went on to testify against his co-accused, he had not yet done so when sentenced, but at that time had only given the police a statement.
Williams’s lawyer submitted, “Since there is some ambiguity about what discount was in fact given for the assistance loaned by the appellant we are not in a position to even say how the learned trial judge at that time predicted how helpful the assistance would be in the circumstances and it turns out that the assistance was tremendous and it did help the prosecution a great deal.”
On the other hand, crown counsel Maria Jackson-Richards felt that a discount had been considered by the judge.
“What is not here is whether it was 10% or 33% or two years or three years,” she conceded.
However, “the mere fact that the judge is saying it balances itself out is saying that he would have taken it into consideration.”
However, Justice of Appeal Mario Michel pointed out that there were a host of charges including murder involved and Williams provided a statement to the police and gave evidence in court.
“Is it sufficient to just say well you would have gotten some credit for that but as a result of your previous convictions the two things balance themselves out? – And the previous conviction we have information on is one incident of robbery and assault which had taken place a few years before. That’s it,” he added.
The crown also agreed that it was not sufficient in terms of how it was done.
Jackson-Richards clarified “The crown is not saying that the assistance was not of value. It was of value.”
“But we are saying that 33% is really too high of a discount,” she posited.
Williams’ lawyers had suggested that his sentence be reduced to 6.67 years but the crown thought this to be “extremely low”.
They submitted that if any discount is given it should be two years.
Justice of Appeal(JA) Michel stated “Less than the three (years) in the first case you referred to and less than the two and a half (years) in the second case that you referred to.”
Jackson-Richards said that in those cases the defendants had provided even greater assistance than what Williams provided.
After deliberation the judgment was delivered by JA Michel.
“We believe that the judge erred in taking this position because he did not treat with the appellant’s assistance to the police as meriting a discount separate from and additional to other factors to be taken into account,” the Justice said.
“The judge did not appear to factor in the very reason for giving a discount for assistance to the police, which is to demonstrate to offenders that it is worthwhile to assist the police because this can result in a significant discount on your sentence.”
“Indeed if the judge’s thinking was to be applied in similar cases then a defendant with previous convictions might have no incentive to assist the police because any discount that he might have gotten for his cooperation with the police will be nullified by his previous convictions,” Michel commented.
The court set aside the sentence imposed by the trial judge and replaced it with one of eight years. There was a two-year subtraction for Williams’ assistance to the police and prosecution.
Further, all parties conceded that the 81 days that Williams spent behind bars before his sentence had not been taken off of the original sentence.
Therefore the court also subtracted this, taking the sentence to seven years, eight months, and 16 days.