Appeal Court to rule on crediting convicts for time spent before trial

The Court of Appeal, in a historic sitting of nine judges, is set to decide how convicts should be credited for time spent in custody before trial, specifically in instances where the credit would result in a sentence below the minimum prescribed.

Court of Appeal President Justice Marva McDonald-Bishop, who is leading the panel, said yesterday, at the start of the four-day hearing, that the jurisdiction is grappling with this issue because, “Parliament has failed to provide guidance in the legislation, unlike some other places”.

She, however, noted that the issue “is not about common law versus the statute, but how the court should move to protect the supreme law, which is the Constitution”.

The special sitting stems from an appeal brought by the applicant, Cecil Moore, who, following a retrial, was sentenced in 2016 to 15 years without being credited for his pre-trial remand of 33 months because the mandatory sentence for the wounding charge was 15 years. Moore was also sentenced to eight years for illegal possession of a firearm.

The appellate court, which last year heard the case, convened a full court to address the issue of whether the applicant should be given credit for time served in pre-trial custody in recognition of his constitutional right to liberty, notwithstanding the mandatory minimum sentence for wounding with intent under section 20(2)(b) of the Offences Against the Person Act.

Court of Appeal judges Justices Frank Williams, Paulette Williams, Jennifer Straw, David Fraser, Vivene Harris, Nicole Foster-Pusey, Nicole Simmons, and Carol Edwards make up the panel.

Also taking part in the sitting are attorney-at-law Robert Fletcher, instructed by Moore’s lawyer Russell Stewart; Director of Public Prosecutions (DPP) Paula Llewellyn; Assistant DPP Judi-Ann Edwards; Crown Counsel Lori-Ann Thugwell; and Senior Assistant Attorney General Jefferey Foreman.

Fletcher, in arguing that the sentence is manifestly excessive because of the court's failure to give credit for time spent in pre-trial custody, also highlighted that this failure was a constitutional breach as it violates Moore's right to liberty and freedom of movement. He argued that, while both the Privy Council and the Caribbean Court of Justice have established as principle that persons should be credited for time spent in custody, the Court of Appeal also prescribes another option. The country, he said, however, still grapples with how to treat with cases where mandatory minimum sentences are handed down and time spent on remand needs to be considered.

Citing the previous case of Ewin Harriot, settled in the Court of Appeal, he pointed out that the sentencing judge can issue a certificate allowing the applicant to petition the Court of Appeal if the judge believes that the mandatory minimum is manifestly excessive and unjust.

“It is not unreasonable to see that there is an apparent and inevitable tension between mandatory sentences and the traditional separation between the legislature and the courts. These mandatory sentences are a clear fetter on the power of the court to adjust sentences to meet the particular circumstances of the case before them,” he further submitted.

While the Court of Appeal has the power to review sentences, which is one solution, Fletcher recommends that the Court of Appeal clearly set out as a principle going forward that persons should be credited for time spent on remand, regardless of the mandatory minimum.

Moore, a Portland farmer who was initially convicted on gun charges in 2012 and sentenced to 15 years, was ordered to stand a retrial after a high court found that his first trial was unfairly conducted. During the first trial, he was sentenced on both counts to 15 years, which were to run concurrently.

The prosecution had led evidence that, on June 17, 2012, the complainant was returning home from his farm in Windsor when he heard what sounded like gunshots and saw Moore with a gun. He was chased by Moore, and at some point during the chase, both men fell. A struggle ensued during which the complainant used the machete he had to chop the appellant in order to escape and later realised he had been shot twice.

The police later said that, acting on information, they visited a section of Windsor that day and saw a group of men holding a tarpaulin with a bleeding man, identified as Moore, lying on it. He was taken to the hospital and subsequently arrested and charged.

In his defence, Moore said he was on his way to feed his goats when he heard gunshots and ran. He stated that it was then he saw the complainant, who chopped him with the machete. Moore said a struggle ensued in which they both fell, and while he was on the ground, the complainant chopped him on his head and hand. He further stated that a masked man, who seemed to have a gun, appeared, and the complainant told him not to kill him as he was already dying, before both men left him.

Fletcher will complete his submission today.

tanesha.mundle@gleanerjm.com