Kent Pantry KENT PANTRY, Q.C., Director of Public Prosecutions, is challenging the Court of Appeal's ruling that it was unconstitutional to detain juveniles at the Governor-General's pleasure.
Mr. Pantry will be asking the Court of Appeal to grant leave for him to have the issue decided by the United Kingdom Privy Council.
If the court grants leave to appeal, the cases of 11 other juveniles whose cases have been referred by the Governor-General to the Court of Appeal for sentencing will have to await the outcome of the Privy Council's decision. The cases were referred to the Court of Appeal as a result of its recent ruling.
The Court of Appeal made its ruling on June 1 this year in the case of Kurt Mollison, a juvenile who was detained at the Governor-General's pleasure because he was under the age of 18 when he was convicted on April 25, 1995 of the capital murder of Leila Brown. Mollison was employed as a gardener to Mrs. Brown, widow of G. Arthur Brown, a former Governor of the Bank of Jamaica, when he killed her at her Stony Hill residence, St. Andrew on March 16, 1994 and stole her motorcar.
Mollison was 17 years old when he committed the offence and therefore could not be sentenced to hang.
Mollison appealed against his conviction but during the hearing, the Court of Appeal invited Mollison's lawyer Deborah Martin to make submissions on the constitutionality of the sentence imposed on Mollison.
After hearing legal arguments from Lloyd Hibbert, Q.C. Senior Deputy Director of Public Prosecutions and Miss Martin, the court by a majority decision ruled that section 29(1) of the Juveniles Act was unconstitutional because it was not in conformity with the Constitution. The court ruled that it had the power to impose a custodial sentence. Mollison was sentenced to life imprisonment but the court recommended that he should serve 20 years before he is eligible for parole because of the gravity of the crime.
The Court of Appeal comprising Mr. Justice Henderson Downer, Mr. Justice Donald Bingham and Mr. Justice Clarence Walker heard the appeal. Mr. Justice Walker dissented.
Mr. Pantry is applying for leave to have the Privy Council determine the following points of law which he says is of exceptional public importance:
Whether the Court of Appeal can consider the question of sentence when there is no application for leave to appeal or an application to appeal against sentence.
Whether or not section 29(1) of the Juveniles Act is saved in its entirety by the provisions of section 4(1) of the Jamaica (Constitution) Order in Council and section 26 (8) of the Constitution of Jamaica. If the answer to question two is no, whether there can be severance of those provisions.
Section 29(1) of the Juveniles Act states in part that "sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court at the time when the offence was committed he was under the age of 18 years but in place thereof the court shall sentence him to be detained during Her Majesty's pleasure."
