Director of Public Prosecutions (DPP) Paula Llewellyn, King’s Counsel on Tuesday conceded that a trial judge’s failure to factor time served on pre-trial remand into the sentence handed down to convicted Portland farmer Cecil Moore was a breach of his constitutional right to liberty and said her office will be writing to Parliament to suggest an amendment which will guide courts faced with similar cases going forward.

The case of Moore, who is now serving a 15-year sentence after being re-tried for a 2012 incident, is being considered by a panel of nine Appeal Court judges sitting together, a first in the history of the court.

Moore is seeking a ruling from the appellate body on whether he is to be given credit for the two years and nine months he spent in custody before his first trial, in recognition of his constitutional rights to liberty, despite 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.

In an appeal heard in December 2014 while he was still in custody, Moore was acquitted and a re-trial ordered. At the re-trial in March 2016, he was however 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.

On Monday, defence attorney Robert Fletcher, appearing with Russell Stewart at the start of the appeal hearing, 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.

On Tuesday, DPP Llewellyn, making submissions on behalf of her office, said, “We would concede that the pre-trial remand of two years and nine months — because there was no consideration given in light of the imposition of the minimum mandatory sentence — that it would be a breach of his constitutional right to liberty”.

She said the prosecution was of the view, having assessed case law with similar matters, that there were avenues through which Moore’s situation could have been handled at sentencing and made a “just one”.

“In the Cecil Moore matter, in the Jamaican scheme where we only have the minimum mandatory provision in the Offences Against the Person Act, the Criminal Justice (Administration) (Amendment) Act on one side and the common law on the other side, which has not been codified… that is the dilemma that this august body I appear before is seeking to deal with in a way that the interest of justice is served and, most importantly, that the guardians of the constitution and the constitutional imperatives surrounding every citizen of this country is protected,” the DPP noted.

“Being the guardians of the constitution, this court is obliged to make a judgment in this matter which will safeguard the constitutional rights and imperatives of every citizen of the country whilst giving due regard to the doctrine of separation of powers… it is my humble submission on the other side that this has to be balanced with the regard or respect for the policy imperatives from the executive,” she said further.

Llewellyn said Section 42K of the Criminal Justice (Administration) (Amendment) Act could be triggered in such matters. Under the section where a defendant has been tried and convicted of an offence that is punishable by a prescribed minimum penalty and the court determines that, based on the circumstances of the particular case, it would be manifestly excessive and unjust to sentence the defendant to the prescribed minimum penalty for which the offence is punishable, the court shall sentence the defendant to the prescribed minimum penalty; and issue the defendant a certificate so as to allow the defendant to seek leave to appeal the sentence in the Appeal Court.

In Moore’s case, however, no certificate had been issued.

Appeal Court President Justice Marva McDonald-Bishop, responding to the DPP’s proposal, said, “Once you recognise that there is an engagement of the constitution that is the litmus test for anything else. Be it the parliamentary law or the act of the court, the executive or any organ of the State, once the constitution is engaged the court’s power is triggered, regardless of where we sit.”

The DPP said her office will be recommending that Parliament amend the Criminal Justice (Administration) (Amendment) Act to give more options to sentencing judges in such matters, based on the circumstances of each case by making it settled law that pre-trial remand can be viewed as time spent, as is now done in some other jurisdictions.

The prosecution’s case 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. However, on leaving shortly after and heading back to his house 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 resumes on Thursday at which time the prosecution will complete its submissions and the Office of the Attorney General, representing the Government, will present its arguments.