Man challenges 62-year jail sentence for 2012 killing of brothers

Abdul Budhoo, who in 2017 was sentenced to 62 years’ imprisonment for the 2012 killing of two brothers at Mackenzie in Linden, has filed an appeal against his conviction and sentence, deeming the sentence severe.
Through his lawyer Mark Conway, Budhoo is, among other things, contending that the trial judge erred in law regarding a finding of provocation relative to directions given to the jury for the killing of one of the brothers, Shaheed Bacchus, who is also his cousin.

The appeal comes up for hearing on Monday, November 02, 2020 at the Guyana Appeal Court.
At the commencement of his trial before Justice Navindra Singh, State Prosecutors indicted Budhoo on two counts of murder over the September 30, 2012 killings of Shaheed Bacchus and his brother Imran.
He had pleaded not guilty to both charges, but was subsequently found guilty by a jury of murdering Shaheed, and was sentenced to 62 years’ imprisonment.
As it relates to the killing of Imran, Budhoo was found guilty of the lesser count of manslaughter, and was sentenced to 32 years’ imprisonment. The Judge had ordered that the sentences are to be served concurrently.
According to reports, on the day in question, there was an argument between Budhoo and his cousin Shaheed over an outstanding financial payment. Shaheed’s brother Imran intervened, and both brothers were stabbed during the altercation.
Budhoo’s lawyer has taken issue with the directions given by the trial judge to the jury in regard to a finding of provocation in relation to the killing of Shaheed. The lawyer argues that if the judge had appropriately directed the jurors, there is a possibility that they may have returned a manslaughter verdict in relation to the killing of Shaheed.
According to Conway, in the records of appeal, Justice Singh stated: ‘If, in other words, you [the jury] are sure that he reacted with thought and deliberation when he stabbed Shaheed, provocation does not apply.’
The lawyer said the judge, in his direction to the jury, continued, “If you reject this partial defence of provocation and you feel satisfied so that you are sure that the accused intended to kill or cause seriously bodily harm when he inflicted those injuries to Shaheed Bacchus, then you are entitled to find that the accused had the requisite intent for the crime charged; that is, murder.”
“So, he did not have that mental element, that intention to kill or cause grievous bodily harm, but his action even without the mental element, his action caused the death,” Conway said the judge further stated in his directions to the jury.
Conway therefore submitted that the totality of the inference and or literal meaning based upon the words and/or sentences used by the trial judge in his directions to the jury regarding the absence of intention in finding provocation leads to a material misdirection.
This misdirection, Conway argues, may have affected the jurors, who may have formed a belief that a finding of provocation is impossible where the accused had an intention to kill. “…such an erroneous belief meant that the appellant may have been robbed of a possibility of a verdict of manslaughter against Shaheed Bacchus,” Conway further contends.
Citing the case of Kubert George vs The State, which was decided by the very Guyana Appeal Court, Conway noted that the court set aside the conviction for murder and substituted a verdict of manslaughter, and instituted a sentence of 20 years’ imprisonment.
Further, Conway is contending that the 32-year sentence for the manslaughter verdict in relation to the killing of Imran, having considered the facts of the offences and the trial judge’s failure to apply established principles of sentencing, rendered this sentence unjustified.
Citing relevant case laws, Conway said Justice Navindra Singh failed to fully credit his client for any time he spent in custody prior to sentencing when he recorded in the Records of Appeal that “Time on remand is to be deducted at the discretion of the trial judge.”
The specific case law referred to by Conway was R Da Costa Hall vs the Queen, in which it was held that “Upon sentencing, full credit should be given for any time spent in custody prior to sentencing, particularly (per de la Bastide P, Nelson, Saunders and Bernard JJ) where conditions endured by prisoners on remand were more onerous than those after sentence, subject to a residual discretion in the sentencing judge not to apply the primary rule, as for…” “It is respectfully submitted that, on the facts, there is no reason or evidence stated on the Record of Appeal to dissuade the application of the primary rule as stated in R Da Costa Hall vs the Queen…and therefore it must be stated that the minimum period of incarceration includes the time spent on remand,” Conway submitted.
In calculating a sentence on the manslaughter conviction, Conway outlined that the trial judge started at a base of 35 years from which a deduction of three years was made for the favourable probation report for his client. Conway has further submitted that the appeal against the severity of the sentence for the offence of manslaughter has merit, as the trial judge erred in law by failing to apply case law principles that promote fairness in sentencing.
The lawyer submitted that the Sentencing Guidelines Council, in its guideline for manslaughter by reason of provocation, notes that a number of elements had to be considered and balanced by the sentencer, such as the degree of the provocation, the extent and timing of the retaliation, the circumstances of the killing, the relationship between the offender and the victim, the behaviour of the offender after the killing, and the type of weapon used and whether it had been to hand or had been carried to the scene.
Against this backdrop, he argues that the foregoing can be argued in favour of Budhoo, who did not enter into the altercation with a weapon [knife] in hand, and at that time he had no intention to kill or cause grievous bodily harm, although he had the knife on his person.
The lawyer noted that his client did not use the weapon at the onset, but until he had a ‘sudden and temporary loss of self-control’. In fact, Conway noted, “…the weapon was used two to three minutes after the cuffing/punching had started, which is the likely act of being hit by [Shaheed] that gave rise to the provocation…”
Based upon the events as stated by one of the Prosecution’s witnesses regarding the death of Imran, Conway argues that his client may not have intended to kill him, but due to his sudden and temporary loss of self-control, he attacked anyone at the said instant who was within his reach.
In light of the circumstances, Conway is asking the Appeal Court to substitute his client’s murder conviction with manslaughter, and to reduce the sentence imposed on the manslaughter conviction, as it is manifestly excessive and not in keeping with established sentencing guidelines.