Director of Public Prosecutions v Keon Moore

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Thompson JR J
• Judgment Date: 24 May 2024
• Judgment citation (vLex): [2024] ECSC J0524-3
• Docket Number: Case No.: NEVCR2023/0004

Between:

Director of Public Prosecutions

and

Keon Moore

Case No.: NEVCR2023/0004

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Megan Nisbett for the Director of Public Prosecutions

Mrs. Natasha Grey-Brookes and Mr. Hasani McDonald for the Defendant

SENTENCING

Thompson JR J

1 On March 13, 2024, a unanimous jury found that Keon Moore (“the Defendant”) had attempted to murder Mr. X and had possessed a firearm with intent to endanger the life of Ms. Y.

Factual Background:

2 August 18, 2020 was a Tuesday. The covid-19 pandemic was raging through the world and mask wearing was a mandatory feature of almost all societies. According to the World Health Organization, the number of persons who are estimated to have lost their lives from Covid-19 in that week was approximately 38,088. The jurors were satisfied that the Defendant attempted to add at least one, if not two more souls to that global tally.

3 Mr. X and Ms. Y (“the victims”) were on their way to work that morning. They walked on the pasture behind Arlene's shop and emerged onto a road behind the Alexandra Hospital.

4 As they emerged onto that road they noticed a greyish-bluish car parked in the corner of the road on their right as they emerged from the track. They continued on their journey. One of the victims had a bag containing breadfruits in his hands and they were walking on opposite sides of the road, heading towards Charlestown.

5 According to Mr. X, something told him to look back and it was at this point that he saw two men dressed in black running towards him. One of those men had a gun in his hands and wore a green mask which was tied below his nose. That man wore a black stocking which covered his plaits but Mr. X was able to observe the eyes and nose and forehead of the man and identified that man as the Defendant.

6 Mr. X said that as the Defendant came closer he (X) began to say ‘is not me’, ‘is not me’ and run in a zig zag pattern away from the Defendant who then began shooting at him. It was his evidence that the Defendant paused when he said ‘is not me’ and this pause allowed him to further observe the Defendant as one of his assailants that day.

7 Mr. X then ran down the street and while running he felt a bullet hit his left arm, he then fell down. He had the presence of mind to remain on the ground and played dead and noticed that the Defendant who was walking closer to him turned around when he noticed he had fallen and was heading back to the car.

8 Mr. X then took off running, ran into a neighbouring house then over the back fence of the hospital where he was treated for the injury to his left hand. Save for that injury none of the other shots fired at him that morning connected with his body.

9 Ms. Y's evidence was that she heard a tapping or flapping sound while walking down the road that morning and noticed two men running down the same side of her road as her boyfriend. The first man was roughly four feet away from her when he began shooting at her boyfriend. She too recognized that this man was dressed in black with a green mask below his nose and knew the man to be the Defendant.

10 According to her, both she and Defendant had grown up in the village of Craddock Road and that he lived 5 minutes' walk, down the road from her childhood home. Additionally, they attended the same primary and secondary school in Charlestown and she knew his mother, sisters and late father. They were not in the same class but she detailed how often she would see the Defendant throughout her childhood. For what it is worth, Mr. X also attended the same school as the Defendant but he (X) was always in a higher class than the Defendant.

11 She therefore had a ringside seat to the Defendant's persistent attempt to kill her boyfriend. According to her, after the Defendant had shot at her boyfriend he then pointed his gun at her and she heard a clicking sound but nothing came out. For reasons that were not fully explained at trial, this action did not suffice to justify a count of attempted murder but sufficed for proof that the Defendant had possessed a firearm intending to endanger the life of Ms. Y.

12 Ms. Y then took off running and the CCTV footage obtained from cameras on the FLOW building in the area showed two individuals running post haste down the road with a silverish vehicle following behind. The Crown's case at trial rose and fell on whether the jurors believed the evidence of the victims as the CCTV footage could not determine the identity of the occupants of the car.

13 The Defendant did not dispute knowing his intended victims but argues that they were mistaken when they identified him as the shooter. It was his case that he could not have been the shooter as he was at work 1 at the Hamilton area on the Peace Programme.

14 The Defendant did not give evidence but called two alibi witnesses in support of his case at trial. The first alibi witness, a Mr. Devon Parris testified that the Defendant was at work at the Hamilton area at 7 am that morning when he (Parris) got to work and did not leave the work site at any time that morning.

15 The second alibi witness was a Mr. Marcel Mills who could not recall the exact date but testified that he recalled hearing of the shooting incident and said that he met the Defendant at ‘after 8’ that morning when he reported for work at the Hamilton area that day. He too, testified that the Defendant did not leave their work area that morning.

16 Counsel on all sides were agreed that a visit to the various loci in the case would be of some assistance to the jurors. The area of the shooting was thus pointed out, together with the location of the various cameras and the work area at Hamilton Estate. In this court's view, the distance between the shooting and the work area was no more than 5 minutes' drive (in a coaster bus) from each other.

17 Counsel for the prosecution successfully applied to this Court to tender in evidence an extract from the interview of a Mr. Shakel Campbell as rebuttal evidence of the evidence of Mr. Parris and Mr. Mills. Their evidence was that Mr. Campbell owned a silverish/bluish car and together with the Defendant was one of the supervisors of their work on the Peace Program. It was their evidence that they both met Mr. Campbell and the Defendant at work that day.

18 In the extract of the interview, Mr. Campbell told the police that on the morning of the shooting he was awakened by a phone call from a Pastor Maynard at between 7:40 and 7:50 am that morning. He (Campbell) then left his home in Craddock Road with his mother and took her to work at Oualie Beach Resort that morning and then came back to Craddock Road at around 8: 35 or 8:40 am to collect his weeding machine, rake and gas bottle before he headed to work at Hamilton Estate.

19 The Crown's argument was that Campbell's interview was manifestly at odds with the evidence of Mr. Parris and Mr. Mills on this issue. Additionally, Mr. Campbell's car was seen on the CCTV footage traveling up Government Road (a parallel road, in close proximity to the shooting) at time when both Mr. Mills and Mr. Parris said that Mr. Campbell's car was parked at Hamilton and Campbell and the Defendant were at work.

20 The jurors, by their unanimous verdict, accepted the evidence of the victims. At best, this meant that the jurors were satisfied that Mr. Mills and Mr. Parris were mistaken, if not lying about the Defendant's whereabouts on the morning of the shooting.

Relevant Law:

21 The maximum penalty for attempted murder is 25 years imprisonment. This court does not propose to repeat its remarks in the DPP v Ervin Allen on the maximum penalty for attempted murder. Suffice it to say that Mr. Vasquez for the Crown agreed that the maximum penalty was anomalous and indicated that his office had made representations for reform but to date these representations had not yet landed on fertile soil.

22 Insofar as the maximum penalty for possession of a firearm with intent to endanger life, this Court can do no better than to echo the reasoning of Mr. Justice Morley in DPP v Cuthbert Wilkes that:

“This legislation is flawed and requires amendment. The offence has no maximum and mandates a minimum sentence of 14 years, when minimum sentences have been abolished by the Abolition of Minimum Punishments Act cap 4.01. Between Counsel it has been agreed and urged the fairest approach would be to treat the minimum as the maximum rather than as at large, and so the maximum here will be treated as 14 years.”

23 Quite why the legislation has not yet been amended, particularly where there has been a number of firearm murders since Justice Morley's ruling is a mystery. This court does not presume to speak for the legislature but everyone agrees that legislative reforms to the criminal justice system are urgent. Until Parliament decides to act this Court is compelled to adopt the approach of Mr. Justice Morley and treat the mandatory minimum of 14 years as a maximum penalty of 14 years imprisonment. All counsel are agreed that the court should adopt this approach.

24 The UK Guideline provides that the use of a firearm or explosive to commit attempted murder attracts a finding of very high culpability of their Guideline. It is difficult to see how any lesser finding of culpability could be applied to the facts of this case. Everyone agrees that the sentence imposed for the possession of a firearm with intent to endanger life offence should be expressed to run concurrently with the sentence for attempted murder as the arose out of the same incident.

25 Everyone agreed that there is no ECSC Guideline on attempted murder and that this court was empowered to rely on the ECSC Guideline for Violence Offences and the UK attempted murder guideline to characterize the Defendant's offending.

26 This court is satisfied that the...