Rushe (Informant) v Vivian

• Jurisdiction: Bermuda
• Judgment Date: 15 November 1989
• Date: 15 November 1989
• Docket Number: Criminal Appeal No. 17 of 1989
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Sir Denys Roberts Act'g P.

Harvey da Costa, J.A.

Sir Alan Huggins, J.A.

Criminal Appeal No. 17 of 1989

George Rushe (Informant)

Appellant

and

Richard Vivian

Respondent

B. Calhoun (Attorney-General's Chambers) for the Appellant.

J. Hall (Vaucrosson's) for the Respondent.

Wounding with intent to do grievous bodily harm — Appeal against sentence by Crown — Manifestly inadequate — Mitigating factors

JUDGMENT

On 14th June, 1989 the respondent pleaded guilty to one offence, against Section 305(a) of the Criminal Code, wounding with intent to do grievous bodily harm. He was sentenced to two and half years imprisonment by the trial judge, with the time that he had already spent in custody to be taken into account. The judge also observed that he hoped that the defendant could be provided with psychotherapeutic treatment or counselling as might be desirable.

The Crown appealed against this sentence as being manifestly inadequate, and was notified that leave had been refused by a single judge on the 23rd June, 1989. The application was renewed before us today.

Mr. Calhoun for the Crown, put forward extracts from Thomas on ‘Sentencing’. This sets out a suggested series of guidelines for sentences for the offence of wounding or causing grievious bodily harm with intent, contrary to Section 18 of the Offences against the Person Act. This provides a maximum sentence of life imprisonment, whereas the Bermuda section carries only a maximum of ten years imprisonment.

Notwithstanding this disparity of sentence, we see nothing wrong with the general tariff which is suggested by Thomas for contested cases, as a guideline which the courts may reasonably follow in cases brought before them in Bermuda under Section 305(a) of the Criminal Code. Without going into any details, it can be said that the suggested sentence for offences of this nature, will normally fall within the range of three to five years imprisonment, depending on such factors as the nature of the weapon, the degree of injury, the actual injury and the degree of provocation.

Sentences below three years, according to the English authorities, are normally to be found only where there are unusually strong mitigating factors. Sentences of five to eight years imprisonment can properly be imposed in cases which exhibit a combination of aggravating features, for example on the infliction of grave injury, the use of a lethal weapon, the absence of...