Caryn Moss v The Director of Public Prosecutions; The Director of Public Prosecutions v Caryn Moss

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 09 May 2019
• Neutral Citation: BS 2019 CA 93
• Date: 09 May 2019
• Docket Number: SCCrApp & CAIS No. 230 of 2018
• Court: Court of Appeal (Bahamas)

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Hon Mrs. Justice Crane-Scott, JA

The Hon Mr. Justice Jones, JA

The Hon Mr. Justice Evans, JA

SCCrApp & CAIS No. 230 of 2018

SCCrApp & CAIS No. 238 of 2018

Between

Caryn Moss

Appellant

and

The Director of Public Prosecutions

Respondent

The Director of Public Prosecutions

Appellant

and

Caryn Moss

Respondent

APPEARANCES:

Mr. Murrio Ducille, Counsel for Appellant, with Ms. Latia Williams Counsel for Appellant in (230/2018);

Counsel for Respondent in (238/2018)

Ms. Al-Leecia Delancy, with Ms. T'shura Ambrose and Mr. Rodger Thompson, Counsel for Respondent in (230/2018);

Counsel for Appellant in (238/2018)

Abbott v Regina [1977] A.C 755 mentioned

Attorney General's Reference No. 4 of 1989 reported at (1990) 11 Cr. App. R. 366 considered

Attorney-General v Whelan [1934] IR 518 considered

David Collins v Regina SCCrimApp No. 77 of 2012 considered

Dharmasena v R [1951] AC 1 applied

Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 mentioned

DPP v Shannon [1975] AC 717 mentioned

Howe v R [1987] 1 All ER 771 considered

Regina v Quayle et al [2005] 1 WLR 3642 considered

Regina v Z [2005] 2 AC 467 considered

Russell et al v Regina [1989–90] 1 LRB 462 mentioned

R v Ali [1995] Crim LR 303 mentioned

R v Fitzpatrick [1977] NILR 20 considered

R v Gotts [1992] 2 A.C. 412 considered

R v Graham [1982] 1 WLR 294 considered

R v Gumbs (1927) 19 Cr. App. R. 94 considered

R v Howe [1987] AC 417 considered

R v Hurley [1967] VR 526 mentioned

R v Ness [2011] Crim L. R. 645 considered

R v Sharp [1987] 1 QB 353 considered

R v Shepherd (1987) 86 Cr App R 47 considered

Rex Kogszyn [1949] 95 CCC 261 mentioned

Stanley Abbott v The Queen [1976] 3 WLR 462 considered

The Attorney-General v. Francis [2008] BHS No. 69 applied

The Attorney General v Kevin Smith Criminal Appeal No. 16 of 2010 applied

The Attorney General v. Larry Raymond Jones et al SCCrim App Nos. 12, 18 and 19 of 2007 applied

Criminal Appeal — Conspiracy to commit murder — Applicability of Duress as a Defence — Sentence — Unduly lenient — Unduly harsh — Principles on which sentence is to be based.

On 1 ^st May, 2016, the body of O'Neil Marshall was found in the parking lot of an abandoned food store along Market Street. Marshall had been shot multiple times throughout his head and body and was partially burned. Following investigations, Caryn Moss was arrested and charged with conspiring with others to commit the murder of O'Neil Marshall. She was later convicted and sentenced to twenty (20) years imprisonment less the one (1) year spent on remand, resulting in nineteen (19) years imprisonment for conspiracy to commit murder. She appealed her conviction on the ground that there was no evidence of conspiracy, her defence of duress was never heard by the jury, the verdict against her was unreasonable and the sentence was harsh and excessive. The sentence was also appealed by the DPP on the grounds that the sentence was based on the wrong principle of law and was unduly lenient.

Held:

Appeal by Caryn Moss dismissed and conviction affirmed. DPP appeal allowed and the sentence of 20 years set aside and sentence of 35 years imposed to take effect from the date of conviction. Time spent on remand prior to conviction is to be deducted from the 35 years.

The assertion by the Appellant that she had no intention to become a part of a conspiracy and that her actions were done under duress raised issues of facts. It was for the jury and not the trial judge to determine whether they believed her statement or not. The evidence indicates that when the plan was put to her by Big Meech, the Appellant said “Okay” signifying her agreement. This was followed by her active participation in the conspiracy resulting in the death of the deceased. Her words and actions were sufficient to satisfy the trial judge that the matter should go to the jury. In the above circumstances we find no merit in ground one of the Appellant's appeal.

The defence of duress has been shaped by policy and moral considerations reflecting the fact that the accused is exculpated for what would otherwise be a crime. The rationale underlying the plea, is that the accused is not blameworthy because he had no true freedom of choice. As a matter of policy this requires a balancing of the interests of society on the one hand and the interests of the accused on the other, bearing in mind that the accused has, by his own admission, intentionally committed a criminal offence.

In my view as a matter of policy we must give effect to the intention of Parliament that attempted murder, abetment and conspiracy to commit murder where the murder is actually committed be treated the same as murder. It follows that in the circumstances of this case and the particular charge laid against the Appellant, the defence of duress was not open to her. It follows that the judge was not wrong to so direct the jury.

In reference to the evidence, the Crown and the Appellant both relied on the caution statement given by Moss to the Police. It is clear that the jury were entitled to determine which aspects of the statement they accepted. The statement in my view clearly showed that the Appellant agreed to be a part of the conspiracy to murder the deceased. It also detailed her participation in the murder which resulted. The jury were fully entitled to find that she was guilty of the offence charged based on the evidence which they had for consideration. In these circumstances I see no merit in this ground.

This Court in setting the guideline of a sentence of 30 to 60 years for murder and related offences such as conspiracy to commit murder where the offence of murder has resulted has always acknowledged that it is only a guideline and not law. This Court in the case of Attorney General v Kevin Smith (supra) made it clear that where there are extenuating circumstances a sentencing judge could go below the established range. The circumstances which justified that change however must be documented.

The learned judge in this case acknowledged the relevance of the Jones' guidelines and the need for extenuating circumstances. She also on a review of the evidence found that there were no extenuating circumstances.

In these circumstances I find that the sentence passed was based on wrong principle of law and was unduly lenient. In my view there was nothing in the judge's findings that could justify such a drastic departure from the accepted scale established for a sentence with respect to conspiracy to commit murder.

I have taken into consideration that although Moss played an active role in the crime she was not the shooter. Society's displeasure of acts of this nature is reflected in the lengthy maximum sentence imposed by Parliament. It therefore follows that the Court ought to recognize the offence of conspiracy to commit murder as a serious offence especially where the murder, which was the subject of the conspiracy, has taken place and the penalty should reflect the seriousness of the offence. In these circumstances I am of the view that a sentence of 35 years would be appropriate in this case.

Mr. Justice Evans, JA

Judgment delivered by the Honourable

BACKGROUND

1 These are two appeals which both emanate from the trial and conviction of Caryn Moss on a charge of conspiracy to commit murder. Caryn Moss, as the Appellant, in No. 230 of 2018 appeals against her conviction and sentence for the offence of conspiracy to commit murder pursuant to Section 89 (1) and punishable under Section 291(1) (b) of the Penal Code, Chapter 84. The Director of Public Prosecutions (“the DPP”) in No. 238 appeals the sentence imposed by the learned trial judge on Moss.

2 Moss was tried in the Supreme Court before Madam Justice Carolita Bethell and a jury commencing the 25 ^th June, 2018, and on the 18 ^th July, 2018, the Appellant was unanimously convicted for the aforesaid offence. On the 27 ^th November, 2018, the learned trial judge sentenced the Appellant to a term of twenty (20) years imprisonment less the one (1) year spent on remand, resulting in nineteen (19) years imprisonment.

THE APPEALS

3 By an Amended Notice of Appeal filed on the 3 ^rd day of April, 2019, the Appellant invites the Court to allow the appeal and therefore quash the conviction on the grounds that:

• i. The learned trial judge erred in law when she failed to uphold a no case submission as there was no evidence of a Conspiracy;

• ii. The learned trial judge erred in law when she failed to allow a defence of duress to go the Jury;

• iii. The verdict is unreasonable and cannot be supported having regard to the evidence; and

• iv. The sentence is harsh and excessive having regard to all the circumstances of the Appellant and her case.

4 The D.P.P filed an appeal against sentence on 6 ^th December, 2018, for the following reasons:

• i. That the sentence passed was based on a wrong principle of law;

• ii. That the sentence passed was unduly lenient

THE TRIAL

5 At trial the Crown's case was that on Saturday, 30 ^th April, 2016, and Sunday, 1 ^st May, 2016, Caryn Moss (“the Respondent”) conspired with others to murder thirty (30) year old O'Neil Marshall (hereinafter “the deceased” and or “Marshall”), as she was a trusted friend of his.

6 It was alleged that on 30 ^th April, 2016, the Respondent was picked up by an individual she referred to as Big Meech, who took her to the airport to collect some keys. During the ride to the airport, the Respondent and Big Meech further devised a plan in which she would pick up the deceased around 10:30pm, and drop him and the car to the end of Yorkshire Street, after which, it was agreed that some guys would come and “deal with the situation”, resulting in the car with the deceased's body being removed from Yorkshire Street. The Respondent told Big Meech “okay” and was told to...