15-year sentence set aside by ‘game changer’ Appeal Court ruling in shooting case

A defence lawyer is hailing as a “ game changer” a ruling from the Court of Appeal that will establish a precedent guiding how pre-trial remand is to be treated when there is a mandatory minimum sentence.

Yesterday, the Court of Appeal set aside Cecil Moore’s mandatory minimum sentence of 15 years for wounding with intent and replaced it with 12 years and three months to account for the 33-month pre-remand sentence, for which he had not been credited because of the mandatory minimum requirement.

Moore, who was sentenced in 2016 for the wounding charge as well as eight years for illegal possession of a firearm following a retrial, is expected to be released soon as he would have completed two-thirds of his sentence.

The historic decision was made by a nine-member panel led by Court of Appeal President Marva McDonald-Bishop, following a three-day special sitting 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.

The sitting stemmed from an appeal brought by Moore against his conviction and sentence. The court, however, refused the appeal against conviction.

McDonald-Bishop, in handing down the order, noted that the court needed to act expeditiously in light of the issue surrounding Moore’s release date but mentioned that the court would provide its reasoning in the written judgment.

PLEASED WITH RULING

Moore’s lawyer, Russell Stewart, was very pleased with the ruling.

“We are very much satisfied that the panel has decided that the applicant must be credited for time spent while he was on remand, and as a consequence of that, as far as we are concerned, once the ruling has been sent to the respective authority at the General Penitentiary (Tower Street Adult Correctional Centre), we expect that Mr Cecil Moore will be released sooner rather than later,” Stewart said.

Attorney-at-law Robert Fletcher, in his submission before the panel on Moore’s behalf on Monday, had argued that the sentence was manifestly excessive because of the court’s failure to give credit for time spent in pre-trial custody, resulting in his sentence being lengthened. Fletcher, who was instructed by Stewart, further highlighted that this failure was a constitutional breach as it violated Moore’s right to liberty.

He also recommended that the Court of Appeal clearly set out as a principle going forward that persons should be credited for time spent on remand when there is a mandatory minimum.

Director of Public Prosecutions (DPP) Paula Llewellyn, who led arguments for the Office of the DPP, had conceded that the High Court’s failure to credit a convict for time spent in custody is a constitutional breach of one’s right to liberty and that an individual must be credited even if the sentence ends up falling below the mandatory minimum.

RIGHTS BREACHED

She also conceded that Moore’s right was breached and that the judge erred in not crediting him for the time spent. At the same time, she acknowledged that at the time of sentencing, the sentencing guidelines on how to properly calculate the sentence were not in place.

The DPP, however, pointed out that Section 42(K) of the Criminal Justice Administrative Act provides an avenue by which the risk of a sentence being manifestly excessive or unjust as a result of the statutory imposition of the mandatory sentence could have been averted. She explained that the sentencing judge could have issued a certificate for the matter to go over to the Court of Appeal for review.

Meanwhile, Senior Assistant Attorney General Jeffrey Foreman, in his submission, argued that the entitlement to credit for time spent in pre-sentence custody is not a right that is set out in the Constitution. However, he said the right would have been breached in the judge’s failure to utilise Section 42K in crediting Moore for time spent in custody.

Foreman also averred that the case laws cited did not state that there is a constitutional right to credit for pre-sentence detention. However, he said those cases support the proposition that when a court is giving discretion without common law or under statute in respect of sentencing, that discretion should be exercised to give credit for pre-sentence custody.

Moore, a Portland farmer who was initially convicted on gun charges in 2012 and sentenced to 15 years, after shooting the complainant in a June 17, 2012, incident, 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.

Moore, who received chop wounds to the head and hand in the incident, claimed that it was he who was attacked by the complainant.

Justices Frank Williams, Paulette Williams, Jennifer Straw, David Fraser, Vivene Harris, Nicole Foster-Pusey, Nicole Simmons, and Carol Edwards made up the panel.

Also appearing, along with the DPP, were Assistant DPP Judi-Ann Edwards and Crown Counsel Lori-Ann Thugwell.

tanesha.mundle@gleanerjm.com