The Queen v Mervin Moise [ECSC]
| Jurisdiction | St Lucia |
| Judge | Edwards J |
| Judgment Date | 12 November 2003 |
| Judgment citation (vLex) | [2003] ECSC J1112-2 |
| Court | Supreme Court (St Lucia) |
| Docket Number | CASE NO. 1/2001 |
| Date | 12 November 2003 |
EASTERN CARIBBENS SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(Criminal)
CASE NO. 1/2001
Miss Victoria Charles Ag. Director of Public Prosecution For The Crown
Mr. Shawn Innocent For the Accused
On Monday the 9th of November 2003, this Court heard submissions from counsel for the Crown and counsel for the Accused regarding the sentencing phase in this matter. I promised then, having heard the arguments that I would deliver my decision this morning, and here is the judgment on sentencing.
The Accused Mervin Moise was convicted of murder on the 16 th of February 2001. He was then sentenced to death without having the opportunity to persuade the Court to refrain from passing the death sentence. His appeal against conviction was dismissed by the Court of Appeal on the 22 nd of October 2001. The Court of Appeal then remitted this case to the High Court for sentence. Unfortunately it has taken a little more than a year for the sentencing phase to take place.
The judicial pronouncements by the Court of Appeal since the 2 nd of April 2001 and the Privy Council on the 11 th of March 2002 have repudiated the automatic mandatory death sentence under Section 178 of the Criminal Code, St Lucia and this was done in the decision of Spence and Hughes versus The Queen—Criminal Appeal No. 20 of 1998 and 14 of 1997 and also in The Queen versus Hughes [2002], 2WLR, 1058. These decisions now require the Court to consider any mitigating factors obvious from the evidence and pre-sentence reports, or otherwise adduced by the Accused.
These mitigating factors may persuade the court to impose a penalty other than death. In determining the sentence to be imposed I'm required to consider more than the particular acts by which the crime was committed. I'm enjoined by the decision in Spence and Hughes to take into account the character and record of the Accused, the nature and gravity of the offense, the design and manner of the execution of the offense, the subjective factors which may have influenced the Accused's conduct, the degree of the Accused culpability and the possibility of his reform.
This was stated by the Chief Justice, Sir Denis Byron at paragraphs 41, 47, 57 of his judgment in of Spence and Hughes.
The Accused was convicted of murder as a result of his participation in an armed robbery at the Gas Station of Peter St Hill, deceased businessman, 62 years old at Guesneau on the 4 th of December 1998 at about 8:30 p.m. The Accused wearing a black cloth mask and another tall, slim, man both dressed in camouflage S.S.U. uniform both armed with guns, approached the deceased while he was seated in front of the Gas Station talking to his employee Carlisle Daniel. The Accused and his accomplice began beating the deceased on his head with their guns. While the deceased was crying for help, the Accused who was the shorter of the two armed-men shot the deceased in his left hip with his rifle.
The bullet damaged his rectum and pelvis and lodged in his right buttocks. At the time this was happening, the daughter of the deceased, Ms. Gene St Hill was in the Gas Station reporting the day's sales. The Accused entered the Gas Station, demanded money, placed his gun on Ms. Gene St Hill's throat and threatened to kill her unless he got the money. The Accused was then joined by his accomplice. They robbed Ms. Gene St Hill of Eastern Caribbean $2000 cash from the cash register and the cash tin. Together they fled behind the gas station.
The deceased died five (5) days later in the Victoria Hospital from complications resulting from the gunshot wound inflicted on him by the Accused. The Pathologist, Dr. Stephen King recovered a large rifle slug with a wadding similar to shotgun shells from the right buttock of the deceased. The police recovered. 12-guage calibre cartridge shells from the crime scene. The Accused was convicted on the 15 th of February 2001 on the evidence of eyewitnesses and The Crown also relied on circumstantial evidence.
The Probation and Psychologist reports disclose that the Accused is now 32 years old. On the date of the offence 14 th post December 1998, he was 28 years old having been born on the 4 th of August 1970. In March 1986 he was committed to the Boys' Training Centre for 2 years. On being discharged at age 18 years from the Boys' Training Centre, he began stealing money, jewelry and food stuff from his father with whom he lived. It appears from the Probation report, that inadequate parental supervision and negative peer pressure led him to engage in stealing and house breaking. He subsequently engaged in peddling Marijuana and he also used Marijuana. While denying his involvement in this crime, he admitted to psychiatrist, Dr. Srikumarum on the 9 th of September 2003, that he had used Marijuana on the date of the incident.
The Accused criminal record dates back to 1986 when he was 16 years old. Of his registered 15 previous convictions, 10 of them are spent, the offences have been committed between 1986 and 1992. I shall therefore not take these 10 previous convictions into account.
The five relevant previous convictions which the Accused admits, were recorded between August 1993 and January 1998. They read as follows:
"On the 7 th of August 1993, he was convicted for Assault and he received a penalty of six months imprisonment. On the 16 th of May 1995 he was again convicted for assault and he received a penalty of 1 month. On the 1 st of March 1996 he was convicted for house breaking and his punishment was 8 months imprisonment. On the 3 rd of September 1996 he was convicted for wounding and he was fined $ 360 or 4 weeks. On the 29 th of January 1998 he was convicted for stealing from a dwelling house and he received punishment of 6 months imprisonment.
The Accused was exposed to domestic violence at an early age. His parents cohabited until he was 12 years and during this period he witnessed his mother being physically abused by his father on several occasions. His mother left the household with his two younger siblings when Accused was 12 years old, leaving the Accused and his brother Valentine to live with their father.
The Probation report and the Psychological assessment report of Dr. Griffin, disclosed that from the time he was about seven years the Accused was verbally and physically abused very frequently by his father. Consequently, he was afraid of his father and was constantly under the threat of a beating. The physical abuse was very cruel and severe, the report discloses. The Accused told Dr. Griffin, that at the age of 10 - 11 years his father tied him up in an ants nest and forbade his mother to move him. There were other times when he received wounds from his father's abuse and had to obtain medical treatment. On two occasions he was beaten to the point of unconsciousness by his father and suffered concussions and fractures of his arms. This abuse has had a negative impact on the Accused's personality, says Dr. Griffin.
The tests conducted by the psychologist on the 10 th and 19 th October 2003 revealed that the Accused has feelings of inadequacy relating to childhood events. He's insecure; he lacks self-assurance and a sense of competence, he has low self-esteem, he leans on others for guidance and security, he assumes the role of an inadequate and self-sacrificing participant in many relationships and settings. He has an intense need for acceptance and nurturance, he discharges anger at those who reject him or otherwise fail to see his needs, he appears to have a self-deprecatory attitude. He fears humiliation and rejection. While he sometimes may submit to abuse and intimidation, he has a tendency to permit many of his emotional involvements to become explosive or abusive. His intelligence quotient is 81 with an age equivalent score of an eight year old, says Dr. Griffin. He dropped out of school at 15 years. His I.Q. ranges between mild mental retardation and low average intelligence. Though he scored an intellectually impaired range he shows no signs of being mentally defective or insane. There was no evidence that he was suffering from any diminished criminal responsibility or mental defect prior to and after the date of the crime.
Dr. Griffin's examination and analysis of the Accused was incapable of discerning the state of mind of the Accused at the date of the crime.
The psychologist, Dr. Griffin, has opined that it is unlikely that this Accused which he describes as hesitant, sad and fearful will initiate violence in prison or attempt to escape from prison. Dr. Griffin states that his characteristics make him well disposed to therapy and rehabilitation. The Accused has expressed a desire to improve his socio economic development, modify his way of life and be with...
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