Dominique Moss v The Queen (Bahamas)

Where sentence is not fixed by law, a criminal court must give the defendant an opportunity to address sentence before punishment is imposed. This duty applies when an appellate court substitutes a lesser conviction and sentences on the substituted offence. Failure to hear the defendant is a serious breach of procedural fairness, even where little appears available to be said. A further appeal may nevertheless fail where the reviewing court is confident that no possible submission could have reduced the sentence, or the issue is academic. In a serious homicide case involving a substantial unexpired sentence, the reviewing court should not decide local sentencing questions itself. It should quash the sentence and remit for submissions and resentencing.

The appellant was convicted of murder in the Bahamas and sentenced to death. The Court of Appeal quashed the murder conviction because the trial judge had failed to address the possible relevance of intoxication to the specific intent required for murder. It substituted a conviction for manslaughter and imposed a sentence of 25 years without hearing submissions on sentence.

The Board refused leave to appeal further against the manslaughter conviction. The appeal before it concerned whether sentencing without giving the appellant an opportunity to be heard was a breach of procedural fairness and, if so, what remedy should follow.

The Board, in a judgment delivered by Lord Hughes, allowed the appeal against sentence.

1. Where sentence is not fixed by law, a criminal court has a duty to give the defendant an opportunity to be heard, through counsel or otherwise, before sentence is passed. The duty applies regardless of how little may appear available to be said. The Board referred to the reasoning in John v Rees [1970] Ch 345 at p 402 as illustrating the importance of hearing representations.
2. That duty applies when an appellate court quashes a conviction and substitutes a conviction for a lesser offence. The court must hear counsel on the sentence for the newly substituted conviction. The Board regarded Newman JA’s reasoning in Francis v The Queen SCCrApp No 133 of 2009 as entirely correct. The discussion of Farrington v The Queen SCCrApp No 30 of 2006 and Rose v The Queen [1961] AC 496 reinforced the same procedural requirement.
3. The procedure need not cause delay or expense. Submissions may be taken immediately after an oral judgment, invited provisionally at the hearing, or sought orally or in writing after a reserved judgment. Counsel appealing against conviction should be ready to address sentence and should raise any omission promptly.
4. A further appeal may fail despite the breach where the reviewing court is confident that no submission could have reduced the sentence, or where the issue is academic, such as when the sentence has been served. In serious homicide cases involving a long sentence still to run, the Board should approach that conclusion with caution.
5. This was not such a case. The appellant was entitled to address the factual basis for sentence, the relative roles of the accused, the appropriate manslaughter tariff and placement within it, and his lack of previous convictions. Those matters belonged to the Bahamian court supervising sentencing practice. The Board therefore abstained from deciding whether 25 years was appropriate, quashed the sentence, and remitted the case to the Court of Appeal of the Bahamas for submissions and resentencing. Pending that hearing, the appellant was to remain in custody. The principle in Ali v State of Trinidad and Tobago [2005] UKPC 41; [2006] 1 WLR 269 applied, so custody pending resentencing would ordinarily be taken into account.

• Court of Appeal of the Commonwealth of the Bahamas: Quashed the murder conviction and death sentence, substituted a manslaughter conviction, and imposed a 25-year sentence without hearing submissions on sentence.
• Privy Council: Refused leave to appeal further against the manslaughter conviction. Allowed the appeal against sentence, quashed the 25-year sentence, and remitted the case to the Bahamian Court of Appeal for submissions and determination of sentence.