Appeal Court quashes death sentences imposed on 3 ex-GDF Coast Guards
…resentences each to life imprisonment
The Court of Appeal (CoA) of Guyana on Wednesday quashed the death sentences imposed on three former Guyana Defence Force (GDF) Coast Guard ranks who were found guilty in 2013 of murdering a civilian by throwing him overboard after robbing him of $17M in cash.
Sherwyn Harte, Devon Gordon, and Deon Greenidge have now each been sentenced to life imprisonment.
In 2013, these three defendants were each sentenced to death by Justice Franklyn Holder for the 2009 murder of Bartica gold miner Dwieve Kant Ramdass, who was robbed at Caiman Hole in the Essequibo River before being tossed overboard.
Following their trial, the trio had filed an appeal against their conviction and death sentence, arguing that the penalty was unconstitutional; and while quashing the capital punishment imposed on them over nine years ago, the CoA unanimously held that although anyone convicted of murder under the old Criminal Law (Offences) Act was liable to the mandatory death sentence, the imposition of the death penalty had not been appropriate in this case, since amendments to the Act had taken a modern approach to sentencing.
As the law which was amended in 2010 stands, a Judge now has the discretion to impose the death sentence, imprisonment for life, or such other term he/she considers appropriate.
The Appeal Court Bench of acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud has unanimously agreed that the three convicted killers are entitled to the discretion in sentencing provided for by the new Act. The Judges found that the convicts’ appeal against their convictions had no merit, and therefore dismissed it. However, their appeal against the death sentences was allowed, with the appellate court substituting those sentences with life sentences. Harte must serve 25 years before he is eligible for parole, while his two co-convicts have to each spend 18 years before being eligible for parole.
According to the evidence, Harte was the mastermind behind the robbery/murder.
The trio was represented by T&T Senior Counsel Douglas Mendes and Attorneys-at-law Nigel Hughes and Latchmie Rahamat. These lawyers argued that the capital punishment is unconstitutional because it is arbitrary, irrational, disproportionate, and contrary to the principles of the rule of law.
The State was represented by lawyers from the Office of the Director of Public Prosecutions (DPP) and the Attorney General’s Chambers. These had presented arguments to the contrary.
The trio, in their appeal, had also asked the Court of Appeal to strike down the death penalty as being unconstitutional. And with the Court of Appeal ruling on Wednesday that it has jurisdiction to hear a challenge to the constitutionality of the death sentence, it will more than likely hear arguments on the substantive issue in the new year.
Senior Counsel Mendes had always maintained that on the day the former GDF ranks were sentenced, the power to impose the death sentence was discretionary, and not fixed by Section 100 of the old Criminal Law (Offences) Act. He had said the law at the time had given the trial Judge the discretion to impose the death or life sentences.
“The provision that we [rely on] is the one that says that when one is found guilty of murder, the court may impose the sentence of death or life imprisonment. That was the law that applied when the [trio] was found guilty of murder,” he had told the CoA at a June 17, 2021 hearing.
The Senior Counsel had reasoned that the death sentence is not lawful because it violates the Constitution of Guyana. He had averred that the capital punishment contravened the fundamental rights provisions of the Constitution, among them being Articles 40, 141, 149.
Under Article 40 (1), Mendes had noted, citizens are provided with a freestanding right to life and human dignity, which prohibits the imposition of the death penalty, and which is separately enforceable and outwits the scope of the general savings clause at Article 152.
“The death sentence violates the rule of law, which is the core constitutional principle… It violates the right to equality and protection of the law. It violates the core principles in respect to dignity,” Mendes had said as he argued that the death sentence is arbitrary and discriminatory.
“The system of the law in Guyana is one that is prone to produce arbitrariness in the criminal arena…,” he had added.
According to him, all of these principles are core principles of a sovereign democratic State. He had pointed out that to the extent where the capital punishment violates these principles, it also violates Article 1, which states that Guyana is a sovereign democratic State.
“If a law is in violation of the rule of law, then it can be struck down,” he had contended.
To amplify this argument, Mendes had relied on the pronouncements of the Caribbean Court of Justice (CCJ)— Guyana’s apex court – in the case of Quincy McEwan et al vs the Attorney General of Guyana. He had reminded that the CCJ, in that case, had struck down Guyana’s colonial-era cross-dressing law that had been contained under Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, having found that it violated the rule of law and its provision were vaguely worded.
Cross-dressing was formally removed as a criminal offence in August of last year, almost three years after the CCJ rendered its decision.
Mendes and Hughes had argued that the “execution of the death penalty following a lengthy de-facto moratorium would be contrary to Guyana’s binding international law obligations under the International Covenant on Civil and Political Rights.”
Although Guyana has not carried out any execution since 1997, the courts continue to impose the death sentence. Given that several years have elapsed since the execution of the death sentence, Mendes had questioned: “Then how will it be reinstituted, if not arbitrarily?”
Urging the Court of Appeal to outlaw the death penalty, the Senior Counsel had told the panel of Judges, “If you do so, all persons on Death Row will be beneficiaries. Their sentences, those that have survived appeals, will have to be vacated…” In that regard, he had said that the court would then have to impose an alternative sentence. According to him, this case was the first time in the Commonwealth Caribbean that the constitutionality of the death sentence was being raised because of pronouncements made by the CCJ on the rule of law.
Mendes had reasoned that there was nothing “unlawful” or “unusual” about the Appeal Court hearing the case, as he relied on the provisions of the Court of Appeal Act.
In June 2021, The Death Penalty Project – a London-based Non-Governmental Organisation (NGO) which has, for over three decades, been providing free legal representation to those facing the death penalty – reported that it facilitated the submission of expert reports from leading academics for this case before the Guyana Appeal Court. They include Carolyn Hoyle, Professor of Criminology at the University of Oxford; Williams Schabas, Professor of Law at Middlesex University, and Jeffery Fagan, Professor of Law at Columbia University.
Manifestation of the will of the people
Meanwhile, Attorney General Anil Nandlall, SC, had intervened in the criminal matter, which he had noted raised novel and important constitutional issues which go to the core of Guyana’s constitutional ethos, and addresses the vexed question of the legality of the death penalty.
According to the Attorney General, the nature of the appeal made it a public interest matter, because it is a challenge to the constitutionality of the death penalty for its complete removal from the laws of Guyana, which is a matter of high constitutional law.
“The court has both a power and a duty to modify relevant legislation to ensure it is rendered consistent with fundamental rights and principles of the Constitution,” he had advanced.
In response to the lawyers’ contention that the death penalty was unconstitutional, the Attorney General had, among other things, said that its retention as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty.
“The death penalty is neither inconsistent with Guyana’s municipal law nor its international law obligations…the death penalty has been engrained in Guyana’s constitutional framework from time immemorial, and has been deliberately retained,” the Senior Counsel had advanced.
This, he had pointed out, is evidenced by its survival despite numerous constitutional and legislative amendments. “The retention of the death penalty as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty,” he had said.