Convict’s sentence reduced as Court of Appeal sets pre-trial remand guideline

The Court of Appeal, in establishing a precedent which will guide how pre-trial remand is to be treated, has shaved two years and nine months off a convict’s 15-year mandatory sentence.

Cecil Moore, following a retrial, was sentenced on a wounding charge in 2016 to 15 years without being credited for his pre-trial remand of 33 months because the mandatory sentence for the charge was 15 years. Moore was also sentenced to eight years for illegal possession of a firearm. The sentencing judge had feared going below the minimum requirement.

Court of Appeal President Marva McDonald-Bishop, who led the panel, set aside the 15-year sentence and replaced it with a sentence of 12 years and three months following the completion of a three-day hearing. She has promised to provide the court's reasons in the written judgment.

The panel was convened 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.

Moore had appealed against his sentence and conviction but the appeal against conviction was refused.

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

The sitting heard submissions from attorney-at-law Robert Fletcher, who was instructed by Moore’s lawyer Russell Stewart; the Director of Public Prosecutions Paula Llewellyn; Assistant DPP Judi-Ann Edwards; Crown Counsel Lori-Ann Thugwell; and Senior Assistant Attorney General Jeffrey Foreman.

Fletcher, in arguing that the sentence was 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 violated Moore's right to liberty and freedom of movement.

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, 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 allegedly 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 that 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 the man not to kill him as he was already dying. Both men left him.

- Tanesha Mundle

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