EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF THE VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
CRIMINAL CASE No. 4 of 2016
Appearances: Mrs. Tiffany R. Scatliffe, DPP & Mr. Kael London, Senior Crown Counsel, for the Crown
Mr. Sherfield P. Bowen & Ms. Ruthilia Maximea, Counsel for the Defendant
2022: May 13th, 27th
Judgment on Sentence
 FLOYD J: The defendant was convicted on 30th November, 2021 of the murder of Melbourne Francis, also known as Trouble, following a trial with a jury. The murder took place at the Stickett, an outdoor gazebo and meeting place, in Long Look, East End, Tortola, on 9th May, 2013. A Social Inquiry Report and a Victim Impact Statement were sought by counsel for the defendant and counsel for the Crown respectively. However, owing to a delay in the filing of court orders for the production of that material, sentencing was adjourned from time to time. Eventually the Social Inquiry Report was obtained and filed on 10th May, 2022. A revised Social Inquiry Report and a Victim Impact Statement were filed on 12th May, 2022. Oral submissions were received on 13th May, 2022.
 There was no direct eye witness evidence in this case linking the defendant to the crime. The Crown relied upon the covertly recorded conversations between the defendant and Lenin Joseph, as well as the testimony of Lenin Joseph himself, combined with other evidence to support its case.
 Police attended at the Stickett on the night of 9th May, 2013 as a result of a shooting. The area was cordoned off with police tape. A man, later identified as Melbourne Francis, had been shot dead. D/S Etienne took photographs of the scene that day and the next day, in daylight. D/I Ballantyne collected items including cartridge shell casings ejected from a fired gun and lead fragments. D/I Shortte canvassed the crowd of onlookers and the next day he canvassed homes in the area, searching for witnesses.
 Mr. Francis was formally pronounced dead at the scene by Dr. Hastings. Subsequently, the forensic pathologist, Dr. Hyma, conducted an autopsy. Unfortunately, Dr. Hyma passed away, and one of his colleagues, Dr. Lew, testified about the autopsy results. Dr. Lew described five main injuries classified as gunshot wounds. The conclusion from the autopsy was that the cause of death was multiple gunshot wounds.
 One witness testified that on the night of 9th May, 2013 he was at the Church of God of Prophecy in Long Look. He left the church around 7:30 pm and walked to his vehicle, which was in a nearby parking lot. The church was a short walk from the Stickett and the parking lot was beside the church. The parking lot was elevated above the main road and the scene. He got to his vehicle, opened the door, and heard a pop sound. He looked towards the Stickett. He saw people there. No one moved. The witness saw someone with their hands pointing down to the floor and seconds later he heard two more pops. People screamed and ran. That same person then ran on to the main road away from the Stickett, in front of the church and the parking lot. The witness could not see the person’s face. It may have been covered or the tam he was wearing was pulled down. The person ran with a pronounced limp. The witness gave a description of the person who ran towards Little Dix Rd., East End. There were street lights and buildings illuminating the area around the Stckett. During the locus when the court attended to view the scene, the witness pointed out the locations he referred to in his testimony and the distances were noted.
 Lenin Joseph testified that he first came to the Territory of the Virgin Islands from Dominica in January 2007. He lived with family for a time and worked in swimming pool maintenance. He moved to a residence in Scatliffe Alley with a co-worker. He became involved in the drug trade and moved to Long Look. At that location, Melbourne Francis lived in an upstairs apartment. They knew each other but only in passing. Lenin Joseph worked in construction for a time but went back to selling crack cocaine for a drug supplier, Jefferson Joseph, also known as Woody. At some point, the drugs he was selling were stolen from him and Jefferson Joseph demanded payment. Once repaid, Lenin Joseph got out of the drug trade. He testified that he sold drugs from 2008 – 2012. Some time afterwards, Jefferson Joseph approached him, offering $10,000 and a gun if Lenin Joseph would kill Melbourne Francis. After thinking about it, Lenin Joseph declined the offer.
 While working in construction on a job site at the local hospital in 2013, Lenin Joseph met a co-worker known as Kip. Kip eventually told him that A.J., who is Andreas Norford, had killed Melbourne Francis. Lenin Joseph had known Andreas Norford for some time. They met when Lenin Joseph was selling drugs at Scatliffe Alley. They were not friends but they knew each other. Lenin Joseph had a cousin, Vernon Laroque, who was a police officer with the Royal Virgin Islands Police Force (RVIPF). After Kip told Mr. Joseph that Mr. Norford had killed Melbourne Francis, Lenin Joseph went to Officer Laroque and told him what he knew. Mr. Joseph did that because he was afraid that if he did not, more people would be killed by Mr. Norford. And so began Lenin Joseph’s relationship with the police in this case.
 Lenin Joseph was given money by the police to rent a vehicle, top up his phone and buy a tablet from the defendant. In September 2013, after Lenin Joseph began cooperating with the police, he contacted Kip to arrange a meeting with Andreas Norford. They met on 11th September in a different vehicle and on 13th, 15th and 18th September, they met in the rental vehicle. They drove around, purchased weed or marijuana, drank alcohol and attended bars and clubs. They had conversations in the rental vehicle and it was those conversations that were covertly recorded.
 Lenin Joseph testified that during one of those social meetings, the defendant told him that he used a 9 mm gun to kill Melbourne Francis with three shots in the chest and one in the neck as he was falling. The defendant saw a man named Moonhead, who turned his head and watched him approach. The defendant walked up to Trouble, who did not see him, and shot him. Once Trouble was shot, he leaned over on his side. The defendant said he then went past Moonhead and another person known as Project, running towards the area of the church. He had a vehicle waiting for him, driven by Kirvaughan, Fireman Eddo’s brother. He had to run to meet Kirvaughan in the East End area. The defendant said that if he had shot Trouble with a 357 magnum, it would have destroyed or “burst” his head. A firearms expert, Maurice Cooper, testified and confirmed the shell casings found at the scene probably came from a semi-automatic firearm. He found each to have the same class characteristics, being fired 9 mm Luger cartridge cases manufactured by the Winchester Company. Upon microscopic comparison, he found each to have sufficient Individual characteristics to say that they were all fired from the same firearm.
 In one of the recorded conversations, confirmed in his testimony, Lenin Joseph said that he told the defendant someone had said Thirteen had killed Melbourne Francis. To which the defendant replied, Thirteen was not the “bad man” responsible. Lenin Joseph also testified about another occasion when he went to lunch with the defendant at the Happy Lion restaurant. He said a man in a reddish colored shirt and brown pants spoke to the defendant at that location. When Mr. Joseph asked the defendant who that man was, he was told that was the getaway driver. The defendant said the driver had got scared and sold the car.
 D/I Hughes was in charge of Intelligence and Covert Policing from October 2008 – March 2014 with the RVIPF. His responsibilities included the use of covert surveillance techniques to secure evidence. In September 2013, he was in charge of Operation Vanguard, a covert surveillance operation regarding the murder of Melbourne Francis. The main subject was Andreas Norford, also known as A.J. D/I Hughes ordered the installation of a covert listening device in a rental vehicle for this operation. All recorded product was copied on to a master disc and a working copy. The lead investigator in this operation was D/C Taylor. The surveillance activity was authorized in writing by a senior officer before deployment. The authorized covert activity was deemed necessary and proportionate in what it sought to achieve. D/I Hughes followed the guidelines of UK legislation known as the Regulation of Investigatory Powers Act 2000 (RIPA), which was applicable to investigations in the Territory of the Virgin Islands.
 D/C Taylor testified that he worked with the RVIPF for two years from 2012 – 2013. He was assigned to the Serious Investigations Unit. On 15th September, 2013, he was instructed by D/I Hughes to commence a covert monitoring post. In this case, audio was recorded from a device placed in a rental motor vehicle. He commenced recording at 19:51 on 15th September, 2013 and continued on past midnight into 16th September, 2013. He again recorded audio commencing at 23:23 on 18th September, 2013 and continuing past midnight into 19th September, 2013. After each recording, he downloaded the audio on to a master CD and two working copies. Other officers looked after the creation of transcripts of those recordings.
 D/I Shortte confirmed that he knew the defendant well, including his family, siblings and parents. He was friends with the defendant’s mother and step-father. He was given discs containing the covert audio recordings. He recognized the voices of the two persons as being very distinctive and known to him. He made transcripts of the recordings. He provided the transcripts to another officer for verification. He identified the voices as being Andreas Norford and Lenin Joseph. Those audio recordings and their transcripts were entered into evidence in this case. D/I Shortte confirmed that Jason Leonard, also known as Thirteen, had been a prime suspect in this case. However, the investigation reached a dead end and he was eventually cleared as a suspect. The police found no evidence that he was involved in this crime.
 The defendant left the BVI on 28th October, 2013 and arrived in St. Kitts that same day. On 23rd November, 2015 the defendant was returned to this territory and charged accordingly. He has been on remand ever since.
 The Social Inquiry Report described the defendant as a 30-year-old man born in St. Kitts on 2nd September, 1991. Although he engaged in the production of the report, he was not entirely cooperative. He withheld some details of his adult life and lifestyle. The defendant has several siblings and a strong relationship with his mother. He has one child with whom he has, unfortunately, lost contact. His home life was characterised by physical and verbal abuse, including corporal punishment, directed by his father towards his mother, himself and his siblings. By all accounts, the defendant was an exceptional athlete who played football for the national teams of both St. Kitts and the Territory of the Virgin Islands. He was expelled from high school for fighting and negative peer associations. He had sporadic employment throughout his adult life with the most success coming from coaching school football teams. Although involved in the Methodist church in his youth, the defendant has embraced and now follows the Rastafari faith. The defendant denied responsibility for this offence. That cannot, of course, be construed as an aggravating factor. It is the right of every accused person to put the Crown to the strict proof of its case. The defendant has a criminal record with convictions in 2010 – 2011 for handling stolen goods, being armed with an offensive weapon and two counts of burglary. His sentences included custodial dispositions. Unfortunately, the report also contained information from prison officials that described the defendant as a very disrespectful and difficult prisoner. He is often ill-tempered and aggressive. The defendant generated fifteen behaviour infractions from 2012 to 2021. He has been involved in fights, including one that resulted in the death of another inmate and generated criminal charges against the defendant. In 2022, a bladed weapon was found during a search of the defendant’s cell. Mr. Norford has not taken part in any prison work, counselling or education programs. As a result of his behaviour, he has been housed in either the maximum-security unit or in segregation at HM Prison Balsam Ghut.
 Ms. Eileen Dunning, the mother of the deceased, Melbourne Francis, provided a Victim Impact Statement. Understandably, Ms. Dunning related how much she missed her son and how much he meant to her. It has affected her ability to trust people. Her grief is obvious and constant. She has suffered a great deal of emotional harm.
THE POSITION OF THE PARTIES
 Learned counsel for the Crown submits that the only mitigating factor in this case is the youth or young age of the defendant at the time of the incident. He was 21 years old. However, the Social Inquiry Report indicated poor behaviour on the part of the defendant while incarcerated on remand for this offence.
 Crown counsel pointed out several aggravating factors which include:
A) The use of a firearm, which was never recovered.
B) There was some degree of planning.
C) The offence occurred in a public place.
D) The defendant has prior convictions, although not for this type of offence.
E) The offence was committed near a religious building.
F) The offence was unprovoked.
 Counsel for the Crown seeks a determinate sentence and referred to a number of authorities, submitting that a practice has developed in this territory of using the provisions of Schedule 21 of the Criminal Justice Act 2003 (United Kingdom) for guidance in sentencing in cases such as this. However, the introduction of the Compendium of Sentencing Guidelines of the Eastern Caribbean Supreme Court: Homicide Offences Re-Issue 26th November, 2021, is now applicable. Counsel for the Crown submits that, based upon a review of regional case law, including local cases, courts have adopted a starting point of 30 years for cases of murder. The appropriate starting point in this case is therefore 30 years. Although not being bound by the UK legislation, it is helpful to note that under Schedule 21 where the offender was aged 18 or over and the offence involved the use of a firearm, the starting point is 30 years. The seriousness of the case must, however, be considered in the Caribbean context, taking into account the facts of the case and sentences throughout the region. The sentence must reflect the seriousness of the offence.
 Learned Counsel for the defendant began his submissions by advising the court that the defendant maintained his innocence, in the face of the finding of guilt. Notwithstanding that, he submitted that the appropriate starting point for a determinate sentence in this case was 20 years, with a range of 15 – 30 years.
 Defence Counsel referred to a number of authorities. With regard to the considerations found in the Sentencing Guidelines, he submitted that there was no evidence of premeditation or significant planning. Although a church was in the general vicinity of the incident, no service was interrupted and the church was unaffected. Similarly, although the incident occurred in a public place, there was no evidence of anyone being traumatized or negatively affected. While the use of a firearm in the commission of the offence had a bearing on the starting point of sentence, it should not be considered as an aggravating factor generally.
 Counsel for the defendant submitted that mitigating factors included the young age of Mr. Norford at the time of the incident. He was only 21 years old. The Social Inquiry Report described an unstable life growing up, with much movement between the Territory of the Virgin Islands and his birth place, St. Kitts and Nevis.
 Defence counsel reminded the court of the length of time it took for this case to be completed. The incident occurred in 2013 and the defendant was arrested in 2015. He was on remand until he was convicted after trial in November 2021. As a result, his sentence should be reduced by up to 5 years. In reply to that submission, Crown counsel advised the court that this trial had previously been scheduled to commence in 2016. However, due to changes in defence counsel representing Mr. Norford, Hurricanes Irma and Maria in 2017 and the COVID pandemic thereafter, some of the delay must be attributed to the defendant and the rest was beyond the control of the Crown and the court.
 Under the terms of s. 150 of the Criminal Code 1997, any person who is convicted of murder is liable to imprisonment for life. Parole eligibility is governed by s. 9(2) of the Parole Act 2009, which indicates that, upon sentencing a person to imprisonment for life, a judge shall state whether such person may be eligible for parole and if so, shall state a minimum period of imprisonment that shall be served before being considered for parole.
 Nevertheless, sentencing in criminal cases involves many considerations in reaching the appropriate penalty. Of paramount importance are the sentencing goals of retribution, deterrence (both general and specific), prevention and rehabilitation, as confirmed in the well-known cases of R. v Sargent and Desmond Baptiste et al v The Queen . Although the Caribbean Court of Justice in the case of Renaldo Anderson Alleyne v The Queen held that a more modern formulation would refer only to the principles of punishment, deterrence and rehabilitation. Sentencing seeks to promote respect for the law and an orderly society. The facts of the case and the gravity of the offence are balanced with the characteristics of the offender, including his age and background, whether he has a criminal record, the role he played in the offence and other items. The case of R. v Parranto confirmed that sentencing is one of the most delicate stages of the criminal justice process. More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by clearly defined objectives, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing. The goal in every case is a fair, fit and principled sanction. Sentencing is a highly individualized exercise, approached on a case-by-case basis. The court must determine which objectives of sentencing merit greater weight and evaluate the importance of mitigating or aggravating factors to best reflect the circumstances of each case. Similarly, the court in the Renaldo Anderson Alleyne case affirmed that, in murder cases, the sentencing judge must take into account the personal and individual circumstances of the convicted person, the nature and gravity of the offence, the character and record of the convicted person, the factors influencing the conduct leading to the murder, the design and execution of the offence and the possibility of reform and reintegration of the convicted person. I bear all of this in mind in formulating a sentence in this case.
 Direction in sentencing for the offence of murder is, as noted, found in the Eastern Caribbean Supreme Court Sentencing Guidelines. In fact, in the case of R. v Evanson Mitcham , the Learned Justice Morley reminds us that the effect of the guidelines has been to supersede old case law on previous sentences, so that while such cases are of interest, and where appropriate are helpful and of weight, they are no longer automatically persuasive or binding; in the main, the reason for supersession is sentences have varied too widely.
 Having received and carefully reviewed the written and oral submissions of both parties, the Social Inquiry Report and the Victim Impact Statement, what follows is the decision of the court in this sentencing matter. This was a very serious crime where a man was brutally gunned down while sitting in a public park. Not only did a man lose his life but public safety was placed at great risk. People fled in terror after the shooting. The use of a handgun in committing this murder increases the gravity of the offence significantly. Gun crime is a great concern to the court. The use of firearms in the commission of offences presents a significant danger to this community. People must be free to go about their business without fear engendered by the presence and use of firearms. A message of deterrence must be sent that the commission of offences involving firearms, particularly handguns, will not be tolerated and will result in significant terms of incarceration. Handguns are easily concealed, as is clear from this case, and they present a significant danger. This was clearly spelled out in a series of cases from the English Court of Appeal (Criminal Division), beginning with R. v Wilkinson and Others :
The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorize and intimidate. That is why criminals want them: that is why they use them… Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community…As a matter of sentencing reality, whenever a gun is made available for use as well as when a gun is used, public protection is the paramount consideration. Deterrent and punitive sentences are required and should be imposed.
 More recently, the Court in R. v Meikiel Dixon-Nash , referred with approval to the dicta in the Wilkinson and Others case, stating: “This explains why the policy of the law is intended to reflect a need for deterrence; sentences for gun offences will be severe.”
 In crafting this sentence, the Court has relied upon the general provisions of the Eastern Caribbean Supreme Court Sentencing Guidelines for Homicide Offences. The Guidelines indicate at para 2, the sentences available for murder. In this jurisdiction, the death penalty is not applicable and, in this case, there is no indication of insanity or relevant mental illness for the convicted person. Therefore, detention at the court’s pleasure is not applicable. What is left is either a whole life sentence or a determinate sentence.
 At para 4 of the Guidelines, a whole life sentence may be considered where the court considers that the seriousness of the offence is exceptionally high and the offender was an adult (age 18 or over) at the time of the commission of the offence. Fifteen examples where the seriousness of the offence could be considered exceptionally high are set out at para 5 of the Guidelines. They include:
A) The murder of two or more persons.
B) Murder associated with a series of serious criminal acts.
C) A substantial degree of premeditation or planning.
D) Abduction of the victim.
E) Murder involving sadistic or sexual conduct.
F) Murder involving prolonged suffering or torture.
G) The murder of a police officer or other enumerated occupation or vocation.
H) Murder relating to membership in a criminal organization.
I) Murder as an act of terrorism.
J) Murder motivated by hatred for or prejudice against a group to which the offender believed the victim belonged, based on religion, race, ethnicity, language, sexual orientation, age or disability.
K) Murder involving actual or threatened use of explosives, chemicals or biological agents.
L) Deliberate killing for payment or gain.
M) Where the offender is assessed as being likely to commit further serious violent offences and is therefore a substantial danger to the community.
N) Murder by an offender previously convicted of murder.
O) Murder by an offender who has a record for multiple previous convictions for serious violent offences.
None of those examples apply to either the defendant or the facts in this case. A whole life sentence, therefore, does not arise.
 As a result, the sentence in this case will be a determinate one. Para 6 of the Guidelines indicates that the starting point for a determinate sentence is 40 years, with a range of 30 – 50 years. Examples of cases that would fall into that category are set out at para 7 of the Guidelines and include:
A) Where the offender has pleaded guilty and would otherwise face a whole life term.
B) Murder involving the use of a firearm (emphasis added).
C) Murder arising unplanned in the course of a felony (robbery, burglary, etc.).
D) Murder intending to obstruct or interfere with the course of justice.
E) Murder involving sexual or sadistic conduct to a lesser degree than referred to above.
F) Murder in the context of a significant history of domestic violence.
The use of a firearm in the commission of murder in this case, places it squarely in the determinate category of para 6, with a starting point range of 30 – 50 years.
 Although the Sentencing Guidelines now in force supersede previous case law, the court notes the position of the Crown in this case recommending a starting point of 30 years, based upon regional and local case law, and the assistance of the Criminal Justice Act 2003, Schedule 21. That accords with the range of sentence found in the Guidelines. However, the court is concerned by the use of a firearm in this case, especially a handgun, and bearing in mind the provisions of para 7 of the Guidelines, finds the appropriate starting point for sentence to be 35 years. That also accords with the range of sentence found in the Guidelines.
 With a starting point of 35 years, the court must go on to consider the aggravating and mitigating factors pertaining to both the offence and the offender. Aggravating factors pertaining to the offence are set out at para 12 of the Guidelines. Several of those factors are applicable to this case. There was a significant degree of planning or premeditation. The defendant went looking for the victim while armed with a loaded handgun. He arranged for a comrade to assist him by driving him away from the scene after the shooting. He obviously considered the method to be used in carrying out this odious act, as he later callously told a friend that if he had used his .357 magnum, it would have burst the head of his victim, Mr. Francis. The incident occurred near to a religious institution. This was clear when the court attended the area of the shooting during the locus and listened to the testimony of the witness who had just left a meeting at the nearby church when the shooting occurred. The location where the incident took place was an open area with seating and a gazebo, near to shops and residences, where members of the public would gather to socialize. This was clear not only in the evidence presented but also during the court attendance on the locus. At the time of the shooting, several bystanders were present. People could easily have been struck when the gun was discharged or been injured in the resulting panic. It was a very dangerous situation. The incident was entirely unprovoked. The victim was shot dead while seated in a public park in the evening hours.
 Mitigating factors are enumerated at para 13 of the Guidelines and include:
A) An intention to cause serious bodily harm rather than kill.
B) Where the offender acted under duress.
C) Where the offender offered assistance to the authorities.
D) Where the offender was provoked.
E) Where the victim was the aggressor.
F) A belief by the offender that the murder was an act of mercy.
None of these mitigating factors apply to this case.
 After considering the aggravating features of the offence and determining that there are no mitigating features, the sentence shall be increased by 5 years to 40 years.
 As it pertains to the offender, the court considers para 14 of the Guidelines. Although the defendant has a criminal record, there are no entries for crimes of violence, and the court can find no relevant convictions for other offences that would impact the sentence in this case. This offence was not committed while the defendant was on bail. There are therefore no aggravating factors pertaining to the offender. As to mitigating factors for the offender, the court looks to para 15 of the Guidelines. The defendant was a young man of 21 years when he committed this offence. While that does not explain his offending, it certainly confirms a lack of maturity at the time. It cannot be said that the defendant is a man of good character, owing to the presence of a criminal record. No remorse has been demonstrated by the defendant, as the Social Inquiry Report confirms. He continues to deny responsibility for this offence. That is not an aggravating feature. However, with that position, he cannot take anything in mitigation from an acceptance of his role in the incident. He is a man of apparently good health both physical and mental. He has been an outstanding athlete. He is an adult, still only 30 years of age but no longer lacking in maturity. As to his prospects of rehabilitation, it must be said that there is hope. Although he has generated other serious criminal charges while incarcerated, nothing more has been proven against him. Although he has not been a model prisoner, he is not so old as to be without future prospects. After considering the aggravating and mitigating features of the offender, the court shall give a reduction in sentence of three years, taking the sentence to 37 years.
 The defendant was found guilty after trial. He has been incarcerated on this charge since his extradition and arrest on 23rd November, 2015. Some of the delay was caused by natural disasters and a public health pandemic. The trials of all charged persons were affected by that. Some of the delay was apparently caused by this defendant changing lawyers to represent him. That is his right. Any delay caused by that cannot be laid at the feet of the prosecution. He is entitled to receive credit for his time spent on remand but the court is not persuaded to give enhanced credit for that. The defendant shall therefore receive credit for 6 years and 6 months, thus reducing his sentence to 30 years and 6 months.
 Although the penalty for this offence is imprisonment for life, the sentence in this case is a determinate one. Therefore, under the terms of the Parole Act 2009, it is necessary to state a minimum period of imprisonment to be served before the defendant is considered for parole, which is as follows: Taking into account the fact that the defendant has already served 6 years and 6 months on raemand for this offence, the court orders that he serve an additional 18 years and 6 months from date of sentencing before being considered eligible for parole.
 For all of these reasons, the defendant, Andreas Norford, is hereby sentenced to a period of 37 years imprisonment for the murder of Melbourne Francis. Taking into account the time he has served on remand and giving him full credit for that, the sentence imposed is reduced to 30 years and 6 months as of today’s date. The defendant must serve a minimum of 18 years and 6 months from today’s date before he will be eligible for parole.
Richard G. Floyd
High Court Judge
By the Court
p style=”text-align: right;”>Registrar