THE Court of Appeal has ordered the release of a Venezuelan national who, in 2009, was sentenced to serve eight years in prison having pleaded guilty to having 3.52 kilogrammes of heroin in his possession for the purpose of trafficking.
His attorneys, Senior Counsel Sophia Chote and Trevor Clarke, had argued before Justices of Appeal Paula Mae Weekes, Alice Soo Hon and Rajendra Narine that William Linares may have already served his time by the time his appeal was filed on May 12, 2012.
In passing the eight-year sentence on Linares on April 28, 2009, San Fernando High Court Judge Justice Andre Des Vignes ordered that the time spent in custody awaiting trial, since the date of his arrest, at Cedros, on August 10, 2005, "will be taken into account". The calculation was left up to the prison authorities.
By the time he was sentenced, Linares, of Liapaedo Suvere, Caracas, had been in custody on remand for three years, seven months and 18 days. His attorney argued that he had effectively spent six "prison" years awaiting trial which would mean that in April 2009, he should have been sentenced to two years imprisonment.
However, Senior Counsel Dana Seetahal, who represented the State at yesterday's hearing, contended that under the Prison Rules, remission (credit) is only available to convicted prisoners as a means of encouraging good conduct and to facilitate the reformative treatment of prisoners.
"Therefore, the appellant (Linares) was entitled to a discount of three years, seven months and 18 days from his eight-year sentence," Seetahal said.
"This means he should have been sentenced to four years, four months and 12 days (52 months and 12 days). Applying an arithmetical formula, the appellant being entitled to a maximum remission of one third (for his guilty plea) would at minimum be required to serve 35 months less four days."
Weekes agreed with Seetahal that, as of yesterday, 50-year-old Linares would have been in custody as a convicted person for three years, one month and 16 days (37 months and 16 days) and that, based on the Prison Rules, he would have been eligible for discharge nearly two months ago.
"Nonetheless, remission of sentence is not automatic," Seetahal said.
"This falls within the purview of the prison administration. We do not know whether the appellant would have earned the full remission.
"Nonetheless, since it is through no fault of the appellant that the trial judge applied the incorrect method of calculating his sentence, the State will not oppose an order of this Court that the appellant be deemed to have completed his sentence in light of the fact that he may have been eligible for discharge nearly two months ago."
While his sentence may have been brought to an end, Linares will, however, be kept in detention pending his deportation to Venezuela by local immigration authorities.