The Queen v Cahlii Smith
| Jurisdiction | Bermuda |
| Judge | Wolffe J |
| Judgment Date | 24 July 2023 |
| Docket Number | Case No. 34 of 2018 |
| Court | Supreme Court (Bermuda) |
[2023] SC (Bda) 59 Cri. 17 July 2023
The Hon. Justice Juan P. Wolffe, Puisne Judge
Case No. 34 of 2018
In The Supreme Court of Bermuda
CRIMINAL JURISDICTION
Application for bail pending sentence — Defendant convicted of blackmail, making child pornography, distributing child pornography, and accessing child pornography
Mr. Adley Duncan for the Prosecution
Ms. Elizabeth Christopher for the Defendant
On the 4 th July 2023 the Defendant was convicted by a Jury of blackmail contrary to section 355 of the Criminal Code Act 1907 (the Criminal Code”)(two counts); making child pornography contrary to section 182F(1) of the Criminal Code (three counts); distributing child pornography contrary to section 182F(2) of the Criminal Code (one count); and, accessing child pornography contrary to section 182H(1) of the Criminal Code (one count).
On the day of conviction the trial judge ordered a Social Inquiry Report (“SIR”) and the matter was fixed for mention to the 1 st September 2023 presumably to set a sentencing date. The trial judge remanded the Defendant into custody.
By way of a summons filed on the 7 th July 2023 the Defendant, through his Counsel Ms. Elizabeth Christopher, made an application for bail pending sentence pursuant to section 6 of the Bail Act 2005 (“BA”). On the 17 th July 2023 I ruled that the Defendant's bail application should be dismissed and set out herein are my reasons for doing so.
Ms. Christopher's and Mr. Adley Duncan's submissions were respectively rooted in section 6 of the BA as read with Schedule 1 of the BA. Under the heading “General right to bail of accused persons and others” section 6 of the BA provides that:
“ 6 (1) A person to whom this section applies shall be granted bail except as provided in Schedule 1.
(2) This section applies to a person who is accused of an offence when -
(a) he appears or is brought before the Magistrates Court or the Supreme Court in the course of or in connection with proceedings for the offence; or
(b) he applies to a court for bail or for a variation of the conditions of bail in connection with the proceedings.
(3) Subsection (2) does not apply as respects proceedings on or after a person's conviction of the offence or proceedings against a fugitive offender for the offence.
(4) This section also applies to a person who has been convicted of an offence and whose case is adjourned by the court for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence.
(5) Schedule 1 also has effect as respects conditions of bail for a person to whom this section applies.
(6) In Schedule 1 “the defendant” means a person to whom this section applies and any reference to a defendant whose case is adjourned for inquiries or a report is a reference to a person to whom this section applies by virtue of subsection (4).
(7) In taking any decisions required by Part 1 or Part II of Schedule 1, the considerations to which the court is to have regard include, as far as relevant, any misuse of controlled drugs by the defendant.
(8) In subsection (7) “controlled drugs” and “misuse” have the same meaning as in the Misuse of Drugs Act 1972.”
In conjunction, Schedule 1 of the BA stipulates that:
“ PERSONS ENTITLED TO BAIL: SUPPLEMENTARY PROVISIONS
PART I
DEFENDANTS ACCUSED OR CONVICTED OF IMPRISONABLE OFFENCES
Defendants to whom Part I applies
1. Where the offence or one of the offences of which the defendant is accused or convicted in the proceedings is punishable with imprisonment, the following provisions of this Part of this Schedule apply.
Exceptions to right to bail
2. The defendant need not be granted bail if the offence is murder.
3. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would –
(a) fail to surrender to custody; or
(b) commit an offence while on bail; or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
4. The defendant need not be granted bail if –
(a) the offence is an indictable offence or an offence triable either way; and
(b) it appears to the court that he was on bail in criminal proceedings on the date of the offence.
5. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a young person, for his own welfare.
6. The defendant need not be granted bail if he is in custody in pursuance of the sentence of a court.
7. The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against him.
8. The defendant need not be granted bail if, having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 10.
Exception applicable only to defendant whose case is adjourned for inquiries or a report
9. Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody.
Restriction of conditions of bail
10. (1) Subject to subparagraph (3), where the defendant is granted bail, no conditions shall be imposed under subsections (3) to (6) (except subsection (4)(d) of section 4) unless it appears to the court that it is necessary to do so for the purpose of preventing the occurrence of any of the events mentioned in paragraph 3 of this Part.
(2) No condition shall be imposed under section 4(4)(d) unless it appears to be necessary to do so for the purpose of enabling inquiries or a report to be made.
(3) Subparagraphs (1) and (2) also apply on any application to the court to vary the conditions of bail or to impose conditions in respect of bail which has been granted unconditionally.
(4) The restriction imposed by subparagraph (2) shall not apply to the conditions required to be imposed under section 4(5).
Decisions under paragraph 3 or 4
11. In taking the decisions required by paragraph 3 or 4 of this Part, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say –
(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings;
(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted,
as well as to any others which appear to be relevant.”
The manner in which both section 6 and Schedule 1 of the BA should be applied when applications for bail pending sentence are being determined by the Court was comprehensively addressed by Justice Shade Subair Williams in the authority of The Queen v. William Franklyn Smith, Case No. 9 of 2018 (1 st October 2019). 1 Subair Williams J also ruled on applications for bail pending appeal but I shall not direct my mind to such an application as it is not before me. 2
The defendant in Smith was convicted by a jury for two offences of unlawful carnal knowledge of a girl under the age of 14 years contrary to section 180(2) of the Criminal Code, and two offences of sexual exploitation of a young person whilst in a position of trust contrary to section 182B(1) of the Criminal Code. To assist the Court with sentencing the defendant the Court ordered an assessment under section 329E of the Criminal Code and for this purpose he was remanded into custody for 60 days so that the assessment may be carried out. 3 The prosecution indicated to the Court that they would be seeking at least 5 years imprisonment.
The similarities between the circumstances of this case and those of Smith are striking. Specifically, like the defendant in Smith, the Defendant in this case:
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- Has been convicted of multiple serious offences of a sexual nature and which involve children.
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- Is awaiting the production of a report, in particular a SIR.
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- Is likely to receive an immediate custodial sentence.
Mr. Duncan informed the Court that the maximum sentence for the most serious of the offences for which the Defendant has been convicted is 14 years imprisonment and that the Prosecution will be seeking a lengthy immediate custodial sentence. Ms. Christopher however implores that it is not a foregone conclusion that the Defendant will receive an immediate custodial sentence. Ms. Christopher is correct and it is not for me to telegraph or predict what sentence the trial judge will impose. However, given the seriousness and number of offences for which the Defendant was convicted, as well as the unanimity of the Jury's verdicts, it is more likely than not that he will receive an immediate custodial sentence
Turning back to Smith, Ms. Christopher was the attorney of record for the defendant in Smith and so she is well aware of the arguments that were advanced by her and prosecuting counsel (who was not Mr. Duncan), as well as any obiter dicta made by Subair Williams in Court or any ratio decidendi reached in her written ruling. Indeed, it appears that Ms. Christopher essentially made the same or very similar arguments before me that she made before Subair Williams J. Indication of this...
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