Terry Smith Sentenced to Five
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”.
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
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.
raised the defenses of identification and alibi.
approximately two hours of deliberations, the jury returned a unanimous verdict
of guilty of burglary.
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
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.
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”.
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