A man who has beat two murder charges is fighting to have his sentence on a gun and ammunition charge handed down by a lower court, the Serious Offences Court, where the maximum sentence is seven years imprisonment and a fine of EC$20,000, or both.
If Chief Magistrate Rechanne Browne-Matthias decides to have the High Court pass sentence on 29-year-old Colin “Cocoa” David, as the prosecution has asked, the Long Wall man could spend as much as 20 years in prison.
He was, on Thursday, found guilty of a charge that on May 5 at Kingstown, he had in his possession, one 9mm pistol and 36 rounds of 9mm ammunition, without a license issued under the Firearm Act.
Browne-Matthias handed down her decision two weeks after hearing closing arguments in the case in which she rejected a no-case submission by defence counsel Grant Connell.
The prosecution’s case was that Station Sergeant of Police, Dwayne Bailey, acting on information, had gone to an area in Kingstown, where they met David, Gershon Calvin Cole-Woods, a 37-year-old farmer of Belair, and Cole-Woods’ cousin, Junior Woods in a vehicle.
The vehicle bore the registration number PK581, which turned out to be a false registration plate.
Cole-Woods and Woods, who are cousins, were sitting in the front of the vehicle, with Junior in the driver seat, and David in the back.
Police have also alleged that Cole-Woods had in his possession one .38 revolver and 15 rounds of .38 ammunition without a license issued under the Firearm Act and brought a charge against him.
However, Cole-Woods disappeared in September while on EC$50,000 bail and his relatives say that they believe he was killed.
The prosecution’s case, further, is that police drew their weapons and a hand wearing a black glove, threw a firearm from the rear door of the car.
David was the only occupant of the car found to be wearing a glove.
In handing down her decision on Thursday, Browne-Matthias said that the court believes the evidence of Station Sergeant Bailey when he said he acted on information and encountered the vehicle parked with the occupants inside.
The court also believes that two persons were in the front and one in the back and that David, the person in the rear of the vehicle, had the firearm in his possession, and was therefore guilty.
The magistrate then invited the defence counsel to mitigate on his client’s behalf, but Connell asked for an adjournment until next week.
However, Senior Prosecutor Adolphus Delplesche, who presented the case for the prosecution, told the court that he was making an application under section 19(1) of the Criminal Procedure Code, for the matter to be sent to the High Court for sentencing.
“The grounds for the application by the prosecution, your honour, given the aggravating features in this matter: the evidence came out is that the defendant was wearing a glove, he was masked, sitting in a vehicle with a driver at the driver’s seat and the engine running, the vehicle was carrying a false number plate, those, I submit, your honour, are grave aggravating features.
“Two magazines, each loaded with 15 rounds of live ammunition. I humbly submit to this court, your honour, that given the gravity and the graveness of these aggravating features that these matters be sent to the high court for sentencing,” Delplesche said.
However, Connell told the court that the only thing grave about the prosecution’s application “is that justice will go to the grave if it is entertained”.
He noted that the matter had been listed for preliminary inquiry for eight or nine months, “meaning it had crossed the first hurdle to go to the high court to be tried by his peers – a jury,” Connell said.
Connell said the prosecution “usurped that” and brought the charge back down to a summary one and had David tried by the magistrate.
He said that in the jurisdiction, the chief magistrate is deemed competent to deal with a matter of that magnitude.
“And now they wish to use the same law as a boomerang, as a prosecution boomerang. They fling it, and they know it coming back, they just duck and it chop off the defendant’s neck. That cannot be right… That is legal gymnastics to the detriment of the defendant. You cannot entertain it,” Connell said.
He said that for nine months, the charge hung over the defendant’s head as a bar to further bail if other matters were to arise.
“And this is the jeopardy I raise all the time in the court. You cannot abuse the system; you cannot use the system for the convenience of the prosecution. This is prosecution, not persecution.
“You are dealing with a virgin to the law. His name may be Colin David, it may have been called on several occasions with several matters, but he is a virgin to the law. You cannot use newspaper articles and allegations and accusations against somebody and then treat him as if he is a hardened criminal. For your record, this is a first time offender, this is his first conviction.”
The lawyer argued that for the chief magistrate to entertain the prosecution’s application it is “a travesty of justice”, adding that some lawyers overuse the term.
“But justice will go to the grave today if you, as chief magistrate, entertain that application. That’s abuse at its best,” Connell said.
He said the preliminary inquiry could have been done by way of paper committal, adding that the prosecution must have its reason for proceeding summarily.
“You can’t usurp the law and use shortcuts for the convenience of the prosecution… You, as chief magistrate, must stand firm. I know the prosecutor has tremendous influence in this court. You just have to do your job and fear no man. You make the decision. You can’t entertain that kind of abuse. Prosecution, DPP (Director of Public Prosecution), whomever — I know he is the most powerful man in St. Vincent, that’s beside the point. This is beside the point. There is nobody more powerful than justice.
“I ask you not to entertain that application. That’s abuse, at best,” Connell said.
The chef magistrate reserved her decision until tomorrow, Friday.
David was convicted at the end of a trial in which he did not take the stand in his own defence.
Rather, his only defence witness was Junior Woods, who claimed that he had gone to urinate along the seawall when his cousin called him and told him that he wanted to speak to him.
Junior told the court that Gershon was sitting in the driver’s seat of the vehicle at the time, but went over into the passenger seat so that Junior could sit in the driver seat while they spoke.
He said he was not sitting in the vehicle for two minutes when the police arrived.
David is among three persons awaiting the commencement of a preliminary inquiry into the Oct. 15 attempted murder of Paul Avenue resident, Jawansa “Sanga” Fraser, who was shot in that community.
Ricardo “Shrek” McFee of Largo Height and Jomarno “Small Man” Tash of Rockies have also been charged with that offence.
David is also awaiting trial on October 2017 gun and ammunition charges, allegedly committed while he was on bail on the charge for which he was convicted on Thursday.
Two years ago, David was freed of the May 5, 2015 murder of Jahjust Deveon Steele, who was shot and killed in Rose Place, hours after being released from police custody.
The case against David and his co-accused, Tash, ended when Director of Public Prosecutions, Colin Williams, discontinued the charge.
In 2012, David was freed of a murder charge resulting from the 2009 shooting death of fruit vendor Ashley Seymour of Long Wall.
David was also charged with attempted murder in relation to the shooting of Police Constable Julanie Jack, who was shot as he went to the assistance of a postal worker who was being robbed in Kingstown on June 13, 2013.
The postal worker was relieved of EC$102,000, which was never recovered.
In December 2016, he was charged with assaulting his child’s mother, but the woman told the court in Jan. 3, 2017 that she did not want to proceed with the matter.