Roger Watson v The King (Bahamas)

Before imposing a determinate sentence, including on appellate resentencing after a conviction is quashed and a lesser offence substituted, a criminal court must give the defendant a meaningful opportunity to address sentence and mitigation. Earlier submissions on a different conviction do not satisfy that duty where the offence, mens rea, sentencing criteria or available range has changed. A sentencing tribunal must also give reasons sufficient to explain the sentence, inform the defendant of possible appeal grounds, and explain the outcome to victims and the public. Authorities concerning commutation of a lawful death sentence after delay do not govern a successful conviction appeal. Time spent in custody on remand must receive appropriate credit on resentencing.

Roger Watson was convicted of murder in The Bahamas and sentenced to death. The Court of Appeal of the Commonwealth of The Bahamas quashed the murder conviction, substituted manslaughter and imposed 50 years’ imprisonment on 25 June 2009. The Judicial Committee granted permission to appeal against sentence.

The appeal challenged the absence of an opportunity to make sentencing submissions, the absence of adequate reasons, the treatment of the appellant’s mens rea and mitigation, the failure to credit remand custody, and alleged excessiveness. The central questions were whether the Court of Appeal could sentence without a fresh hearing and whether the sentence properly accounted for the changed conviction and prior custody.

The Board allowed the appeal on grounds 1 and 4, quashed the sentence of 50 years’ imprisonment, and remitted the matter to the Court of Appeal of The Bahamas for resentencing. Grounds 2, 3 and 5 were left for consideration by that court.

1. Opportunity to be heard. Failure to hear the appellant’s counsel on the appropriate sentence before resentencing was a serious breach of procedural fairness. The duty applies even where apparently little may be said on the defendant’s behalf. The Board applied the principle in Moss v Queen [2013] UKPC 32 and Bain v The Queen [2020] UKPC 10.
2. Fresh sentencing exercise. Previous submissions made after a murder conviction did not discharge the duty after that conviction was quashed and manslaughter substituted. Murder and manslaughter were distinct offences with different mental elements, sentencing criteria and sentencing ranges. The Court of Appeal had found no evidential basis for an intention to kill; recklessness was insufficient for murder in The Bahamas. The factual and legal basis for sentence had therefore changed, and the appellant was entitled to address the court on culpability, comparable sentences and his position within the manslaughter range.
3. Reasons. A sentencing tribunal must give reasons sufficient to explain the sentence, make the defendant aware of possible grounds of appeal, and inform victims and the public. The Court of Appeal’s brief statement that the offence was at the upper end of manslaughter did not explain why 50 years was imposed, particularly when Attorney General v Larry Raymond Jones SCCrApp Nos 12, 18 and 19 of 2007 showed a previous range of 18 to 35 years.
4. Remand credit. Section 186(2) of the Criminal Procedure Code provided that sentence took effect when imposed unless otherwise directed. The sentence therefore failed to account for approximately three years spent on remand, and appropriate credit had to be given on resentencing.
5. Death-sentence authorities. The cases concerning commutation of lawful death sentences after delay were distinguishable. They concerned constitutional relief where there had been no successful appeal against conviction or sentence, and did not govern appellate resentencing after substitution of a lesser conviction.

• Court of Appeal of the Commonwealth of The Bahamas: On 25 June 2009, quashed the murder conviction, substituted manslaughter and imposed 50 years’ imprisonment.
• Privy Council: On appeal, allowed grounds 1 and 4, quashed the sentence and remitted the matter to the Court of Appeal of The Bahamas for resentencing.