Keino Lambert v The Queen

• Jurisdiction: Bermuda
• Judge: Ian R.C. Kawaley CJ
• Judgment Date: 30 March 2016
• Court: Supreme Court (Bermuda)
• Docket Number: APPELLATE JURISDICTION 2015: No. 37
• Date: 30 March 2016

[2016] SC 34 App

In The Supreme Court of Bermuda

APPELLATE JURISDICTION 2015: No. 37

Keino Lambert

Appellant

and

The Queen

Respondent

Mr. Arion Mapp, Christopher's, for the Appellant

Ms. Nicole Smith, for the Crown

EX TEMPORE JUDGMENT

(in Court)

Attempted robbery-appeal against sentence- breach of probation order- whether social inquiry report needed-whether sentence of imprisonment should have been suspended

Introductory

1 The Appellant in this matter was convicted in the Magistrates' Court (the Worshipful Archibald Warner) on the 4 ^th June 2015 of the offence of attempted robbery following a trial. He received a sentence of twelve months imprisonment. He appeals against his sentence on the grounds that the Learned Magistrate erred in failing to order a Social Inquiry Report and in failing to exercise his discretion in favour of suspending that sentence of imprisonment.

2 It is common ground between the Appellant and the Crown that for an offence of this nature an immediate custodial sentence was within the range of reasonable penalties that could have been imposed. The Learned Magistrate rejected the plea for a Social Inquiry Report and a suspension of the sentence it seems to me for two main reasons.

3 Firstly, the relevant offence was committed on the 15th January 2014 at a date when the Appellant was on probation for an earlier offence involving an unlawful assault on the mother of the Appellant's children. The second matter that the Learned Magistrate was clearly very influenced by was the seriousness of the offence and the need to impose a deterrent sentence because of the prevalence of the offence.

Ground 1: Failure to Order a Social Inquiry Report

4 The attempted robbery took the form of attempting to steal a black I-phone 4 while the victim was on board a bus. The question of a Social Inquiry Report was not it seems to me as strong a case as the Appellant's counsel Mr Mapp has sought to make it out to be for these reasons.

5 Firstly, the Appellant had received the benefit of non-custodial sentences before. He had, admittedly for different types of offences received, Community Service and Probation as well as Probation for the most recent offence which Probation period was still running when the attempted robbery occurred. This was not a first time offender for whom the Court would have a heightened need to scrutinize the non-custodial options. Instead, this was an admittedly young man who had been given chances in the past and had apparently not used them as well as he should.

6 And so, on balance, it seems to me that the Learned Magistrate cannot be criticized for failing to order a Social Inquiry Report and finding that an immediate custodial sentence was (potentially) appropriate.

Ground 2: Failure to Suspend the Sentence of Imprisonment

7 Ms Smith for the Prosecution...