Gomes v The State

Pre-sentence custody should ordinarily be credited by an arithmetical deduction. The sentencing court retains a discretion to withhold credit in unusual cases, including deliberate flight from the jurisdiction and prolonged resistance to extradition which has extended custody. An appellate court should respect that exercise where the sentencing judge had better knowledge of local conditions and the consequences of flight. That discretion does not justify withholding credit for ordinary remand after extradition where the detention is unrelated to extradition and the defendant is no longer a fugitive: refusal on that basis would be punitive rather than deterrent. Sentencing provisions in one jurisdiction do not govern sentences imposed under another jurisdiction’s law.

Following a retrial in Trinidad and Tobago, Rick Gomes was convicted of possession of dangerous drugs for the purpose of trafficking, possession of a firearm and possession of ammunition. He received 13 years’ imprisonment on the principal drug count, with concurrent terms on the remaining counts. His conviction appeal was dismissed and there was no domestic appeal against sentence.

The Board had refused leave on conviction but granted leave on sentence. The dispute concerned credit for 19 months’ remand before bail, 45 months in custody in the United Kingdom while extradition was contested, and six months’ remand in Trinidad and Tobago after extradition and before conviction. It also included a challenge to the sentence as excessive. The central issue was how the sentencing discretion should treat those periods.

The appeal was allowed only in relation to the six-month period after the appellant’s return to Trinidad and Tobago. The sentence on Count 1 was reduced from 13 years to 12½ years’ imprisonment with hard labour.

1. Credit and discretion. Time spent in custody before sentence should ordinarily be fully taken into account by an arithmetical deduction. The principle in Callachand v State of Mauritius [2008] UKPC 49 recognises exceptional circumstances in which the usual credit may be withheld. Deliberate flight, the need to secure extradition and prolonged resistance to extradition may justify refusing credit for the related period.
2. Custody during extradition. The sentencing judge was entitled to refuse credit for the 45 months spent in custody in the United Kingdom while the appellant resisted extradition. The judge had better knowledge of the local impact of flight, the porosity of borders and the resources required to secure the appellant’s return. The Board therefore declined to substitute its own assessment, although individual members might have exercised the discretion differently, including in relation to the period when prison conditions and Article 3 concerns were actively contested.
3. Remand after return. The six months spent in custody in Trinidad and Tobago after extradition was not linked to the extradition process. By that stage the appellant was no longer a fugitive, and the considerations supporting refusal of credit for the United Kingdom period no longer applied. Withholding credit for this period because of the earlier flight would be punishment rather than deterrence. It should therefore have been deducted.
4. Other arguments. The proposed reliance on section 240 of the Criminal Justice Act 2003 was rightly abandoned. UK sentencing legislation did not govern sentencing under Trinidad and Tobago law. The Board also declined to interfere with the level of the sentence, which reflected local circumstances.

• Privy Council: leave to appeal conviction was refused, but leave to appeal sentence was granted on 18 March 2014. The sentence appeal was allowed in part on 25 February 2015.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed the appeal against conviction and affirmed the sentences. No appeal against sentence was brought in the domestic proceedings.
• Earlier United Kingdom extradition proceedings: the Divisional Court remitted the case for further consideration under the Extradition Act 2003. The House of Lords later dismissed the extradition appeal, [2009] UKHL 21, and a subsequent judicial review was refused, [2010] EWHC 168 (Admin). The appellant was extradited to Trinidad and Tobago in February 2010.