1. The Court of Appeal for Bermuda CRIMINAL APPEAL No. 9 of 2017

B E T W E E N:

D.M.

Appellant - v -

THE QUEEN

Respondent Before: Baker, President Kay, JA Bell, JA Appearances: Michael Scott, Browne Scott, for the Appellant Larry Mussenden and Maria Sofianos, Office of the Director for Public Prosecutions, for the Respondent; Date of Judgment: 5 November 2018

EX TEMPORE JUDGMENT

Once Court of Appeal has determined appeal against sentence – no power to hear further appeal

BAKER, P

D.M. (“the Appellant”) was sentenced by Simmons J to a total of 12 years’ imprisonment for offences of conspiracy relating to importation of drugs, and possession of drugs with intent to supply. The Director for Public Prosecutions appealed against that sentence on the ground that it was manifestly inadequate, and this Court sitting last November having heard submissions by both sides 1

2. 3. 4. 5. increased the sentence to a total of 18 years’ imprisonment. Subsequently, the Appellant has provided information to the authorities that has apparently led to the recovery of some ammunition. As this Court has said recently in the case of K.D. Criminal Jurisdiction No. 3 of 2017, those who are minded to give information to the authorities leading to the recovery of guns and ammunition, are to be encouraged to do so, and in an appropriate case that may lead to a discount in sentence which otherwise would be served. Mr Scott on behalf of the Appellant seeks leave to make a fresh appeal to this Court for the increased sentence of 18 years’ imprisonment to be reduced in light of the information he contends has been supplied to the authorities. The insuperable difficulty in Mr Scott’s way, is the fact that this Court has already considered an appeal against sentence, albeit by the Crown and, significantly, has determined what was the appropriate sentence for this offence. In these circumstances, I can see no basis on which the Court has any jurisdiction to reconsider the matter, and it matters not whether, and there appears to be some doubt about this, the Appellant himself initially sought to appeal his sentence of 10 years’ imprisonment. The plain fact is that this Court has considered the issue of sentence on one occasion, and has reached the conclusion that the appropriate sentence was one of 18 years’ imprisonment. There is, in our judgment, no jurisdiction for the Court to look at the matter again. Were the position otherwise there would be no limit to the number of occasions on which this Court could be invited to reconsider sentence; there would be no finality Our attention has been drawn to a power in the Constitution for a reference in an appropriate case to be made to the governor, who has certain powers that are set out in the Constitution. We are not in a position to say whether the material 2

provided is such as to warrant an application of that kind, and that is not a matter for the consideration of this Court today. No doubt Mr Scott and his client will apply their minds to it, but we have no jurisdiction to entertain a further appeal. The application is therefore refused. ______________________________ Baker P ______________________________ Kay JA ______________________________ Bell JA 3