Terry Smith Sentenced to Five Years

Judgment for the case between The Queen and Terry Smith was delivered last week. Her Ladyship Madam Justice Indra Hariprashad-Charles stated in her judgment that on the night of 11 June 2003 at about 11:00 pm the complainant Koufi Modeste was lying on a bed in his apartment at CSY Dock, Baughers Bay, when he heard a knock on his door. He opened it and there was his neighbor, Oacer Clark standing outside. Mr. Clark came in and they had a conversation. As Mr. Clark was exiting the apartment, the door was pushed and two masked men barged into the apartment. The bigger of the men pushed Mr. Clark onto the bed which was close to the door while the other man approached Mr. Modeste and was shouting “shoot the man, shoot the man, shoot him”.

Mr. Modeste retreated and was kicked against the glass window by the other man. At that time, Mr. Modeste had a C-40 Crossman 177 Calibre gun in his hand. He opened fire at the man who was in front of him and then proceeded to fire several rounds at the bigger man standing at the doorway. They immediately fled the scene. Mr. Modeste promptly called the police who investigated the matter and subsequently arrested and charged the accused for attempted robbery and burglary.

The case for the prosecution was based on the testimony of their eye witness, Oacar Clark. Mr. Clark was present throughout the incident and positively identified the accused as the one who committed the offences on the night in question. He knew the accused for some time prior to the incident and he used to see him at least twice daily for almost a year.

The accused raised the defenses of identification and alibi.

After approximately two hours of  deliberations, the jury returned a unanimous verdict of guilty of burglary.

Justice Hariprashad-Charles stated that section 211 (4) of the Criminal Code, 1997 of the Virgin Islands provides that the maximum penalty for the offence of burglary is 14 years. She explained that unlike manslaughter and offences of a sexual nature, there appears to be no benchmark period in the approach to sentencing of accused persons in cases of robbery and burglary within the Eastern Caribbean Supreme Court. Therefore, the actual sentence imposed will depend upon the existence and evaluation of aggravating and mitigating factors as well as an evaluative process.

Her Ladyship Madam Justice Indra Hariprashad-Charles  stated that the following factors were recognized as aggravating factors in this case —  namely: (i) the not guilty plea of the accused, (ii) the use of force in the commission of the offence, (iii) the accused does not have a clean record. Although now spent, he was convicted of simple larceny some 14 years ago.

Her Ladyship stated that in her opinion the only mitigating factor is that the accused is a fairly young man with young children. He also claims that he is the sole breadwinner. She explained that in considering the appropriateness of the sentence, she must have regard for the culpability of the accused by taking into consideration the seriousness of the offense.

“I am obligated to carry out an evaluative process as well before I arrive at the actual sentence to be imposed. It seems to me from the evidence that the accused is remorseful about the incident and is polite to the virtual complainant". The Justice went on to say: "it is difficult to obliterate that this Island is a peaceful tourist haven. Any upsurge in criminal activities could have serious financial repercussions. It is of paramount importance that the Court sends out a strong signal to potential criminals. Having taken all factors into consideration, the sentence of this Court is that the accused Terry Smith is sentenced to five years imprisonment”.