Appeal Court mulls question of credit for time spent in pre-trial custody

ATTORNEYS for a Portland farmer now serving a 15-year sentence after being re-tried for a 2012 incident, on Monday argued before a full sitting of the Appeal Court that the prison term was “manifestly excessive because of the failure [of the trial judge] to give credit for the time spent in pre-trial custody”.

The panel of nine judges sitting together, a first in the history of the court, was constituted because of the nature of the case which centres on whether Cecil Moore is to be given credit for time served in pre-trial custody, in recognition of his constitutional rights to liberty, notwithstanding the mandatory minimum sentence for wounding with intent under Section 20 (2) (b) of the Offences Against the Person Act.

Moore was arrested in June 2012 and found guilty in November 2012 of one count of illegal possession of firearm and one count of wounding with intent. He was sentenced in December 2012 to 15 years on both counts.

However, he had indicated at sentencing his intention to appeal. That appeal was heard in December 2014 while he was still in custody, but despite being offered bail at that time he took it up in March 2015.

At the re-trial in March 2016, the farmer was found guilty on both counts and was sentenced to eight years’ imprisonment for illegal possession and 15 years at hard labour for wounding with intent. Both sentences were to run concurrently.

But on Monday attorney Robert Fletcher, appearing with Russell Stewart, argued that his client should have received “full credit for the time spent in custody, pending trial”.

“That principle is a common law principle that has been in operation and well known in our jurisdiction, but all of the variations and possibly the unevenness of the application of this principle coming along is probably due to the fact that judges have been grappling with its application as against minimum sentence legislation,” Fletcher argued.

The senior attorney, in responding to the panel’s question as to whether “the question of minimum sentence is irrelevant”, said “the conundrum comes from the minimum sentence”.

“Into the mix for consideration is another problem which is that, failure to credit a person for time spent in pre-trial remand is unconstitutional and violates Section 13 (3) (a) of the constitution — the right to life, liberty of the person, and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence for which the person has been convicted. Pre-trial remand is not a conviction, that’s self-evident,” Fletcher maintained.

The attorney further argued that the power of the legislation that introduces a mandatory minimum is “weakened if it is in contradiction with a section of the constitution”.

“It’s no longer a matter of a contradiction between a common law principle and legislation but it now, operationally, might be a conflict between statute and our constitution. My submission is that, that is a game changer,” he said.

“It’s not necessarily that we are going make a submission that we should blast the legislation, but it certainly can affect what directions this court can give as to how giving credit for time on remand is dealt with,” he contended.

Appeal Court President Marva McDonald Bishop, in responding to Fletcher’s reasoning, said, “If we accept — and this [is] what we have to refine our thoughts on, based on your case — that being in pre-trial custody engages your liberty rights once the constitution is engaged, then it now becomes a matter for the court to look at that engagement to see if the right of each individual has to be considered. And if there is deprivation of liberty and the court finds that it is unjust for that deprivation to have existed, then the court, by virtue of its power as guardian of the constitution and the people’s rights, can use that to override Parliament. Not that you are troubling the statute itself, but the application of the minimum sentence itself.”

Continuing, she said, “The court has to deal with the question of him having been in custody, spending two years before appeal, then when he was re-tried no allowance was made for that. Does that engage his constitutional rights? How do we treat that? And can we use that to go below the minimum sentence?

“We have done it in the context of bail — even if the statute says a convict is not to get bail,” McDonald Bishop said before adding, “The court is not saying that we are here to override Parliament — the court is here to determine whether it should give a constitutional remedy in a case where the person’s constitutional rights, if we so find, was engaged and could be infringed.”

The Appeal Court president, however, made it clear, “We are not here to talk about the constitutionality of the minimum sentence, we are just here to see whether Mr Moore should get his credit.”

Responding to Fletcher’s moot that, “the Court of Appeal now has the inherent power to review all sentences that are manifestly excessive and all where time is not given for the time spent on remand”, Justice McDonald Bishop said, “It’s a lot of work for us, for everybody to come up here for that. That is why we are sitting today; if we agree with you that we should give effect to that right and credit the person for time served, we would just direct that that ought to be done as of now.”

In further responding to Fletcher’s submission that if the Appeal Court agreed with him it would be a “game changer” for courts below moving forward Justice McDonald Bishop said, “The issue is, having arrived at the sentence what do you do with the time the man spent in pre-trial custody?… These are the things we have to consider.”

The prosecution’s evidence is that on June 17, 2012 about 7:00 am, the complainant, a farmer who lived in Windsor, Portland, left his house for his farm, which was nearby. Having arrived at the farm he decided that he would not be farming that morning, so he left and was heading back to his house when he heard sounds like gunshots.

He looked in the direction of the sounds and saw Moore — whom he had known prior to that date — with a gun in his hand. 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 Moore in order to escape. It was after his escape that he realised he had been shot twice.

Moore, in an unsworn statement from the dock, stated that he had been on his way to feed his goats in John’s Hall, which is apparently also located in Windsor, when he heard shots being fired and ran for cover. It was at this time he saw the complainant who chopped him with a machete. There was a physical struggle between the two, which resulted in him [Moore] falling to the ground.

He said that the complainant chopped him on the hand and in the head, and while this was happening a masked person, who appeared to have a gun in his hand, joined the complainant on the scene. The complainant told this person not to kill Moore as he was already dying. Both men then left Moore in the wooded area where he had been attacked. He denied having a gun.

The matter will resume at 10:00 am today.