DPP agrees that convict should be compensated for time spent on remand

The Office of the Director of Public Prosecutions (DPP) has 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.

DPP Paula Llewellyn, in making the concession, said she will also be writing to Parliament with a recommendation that credit for time spent in custody be codified in the statute.

The DPP, in her submission before the historic nine-member panel from the Court of Appeal, led by President Marva McDonald-Bishop, also agreed that the High Court would have breached Cecil Moore’s constitutional rights. Moore, in 2016, was sentenced to 15 years in prison for wounding with intent and eight years for illegal possession of a firearm, but was not credited 33 months for time spent on remand following a retrial because of the mandatory minimum requirement.

The special sitting of nine of the 13 appellate judges, therefore, stems from an appeal brought by Moore and is being held to arrive at a precedent on how time spent in custody should be treated.

The DPP, while conceding the constitutional violation in not giving credit for time spent on remand, 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 may be averted if used.

She explained that in cases where an individual is found guilty of an offence punishable by a mandatory minimum and in the circumstance where a judge feels that the sentence is excessive or unjust, the court can issue a certificate to allow the defendant to seek leave to appeal to the Court of Appeal to review the sentence.

However, some of the judges, including McDonald-Bishop, indicated that they had a challenge with the suggestion for section 42(K) to be used as a remedy in the instance where the breach is evident.

SECTION 42(K)

“It’s as if you are suggesting that 42(K) should be used to protect the constitutional right, Justice Nicole Foster-Pusey also queried.

“I am saying that there are several routes that will ultimately have the same effect,” Llewellyn said.

She said the sentencing judge in a trial can either reduce the sentence by taking into account the time spent on remand or indicate that his hands are tied and activate section 42(K).

“How do you balance constitution with legislation if you accept that when it comes on to your constitutional right, if there’s an infringement, Parliament law has to give way, the application of it,” McDonald-Bishop remarked.

Justice Davis Fraser further indicated that he had a “fundamental difficulty” with the reliance on section 42k to vindicate a constitutional challenge.

“What you are really saying is that the sentencing court in and of itself will not have the power to properly do so, and you are going to have to rely on an appellate process to ensure that justice is ultimately done,” he said.

According to Fraser, if the sentencing court recognises that there is a breach, then it should remedy the situation and not allow the matter to go over to the Court of Appeal for a decision.

The DPP said while judges will have differing views, she did not see why both options cannot exist side by side.

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 the 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.

The hearing continues tomorrow.

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

tanesha.mundle@gleanerjm.com