The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE was asked yesterday to impose the death penalty on two men convicted of the murder and kidnapping of a Department of Immigration officer and his girlfriend in Andros.

Zintworn Duncombe, 28, and James Johnson, 22, appeared before Justice Indra Charles for the continuation of the penalty phase of their trial for their respective roles in the murder and kidnapping of Shane Gardiner and his girlfriend, Tishka Braynen, in 2013.

Gardiner and Braynen were allegedly killed after a failed plot to take $8,000 in gambling winnings from the immigration officer. Braynen, of Cargill Creek, and Gardiner, who lived in Love Hill, both in Central Andros, were reported missing around 1.45pm on November 24, 2013. Gardiner had recently been assigned to the island. On December 21, 2013, police in Andros discovered the remains of a man with “items related to a female.”

Duncombe, Johnson, Daniel Coakley, 28, and Cordero Saunders, 26, were unanimously convicted of double kidnapping, conspiracy to commit armed robbery and attempted armed robbery.

The Crown is seeking the death penalty for Duncombe and Johnson.

Darnell Dorsett, Crown prosecutor, made submissions on behalf of the Crown’s request that the case met the “worst of the worst” threshold set out in law for the discretionary death penalty to be imposed.

The 2011 amendment to the Penal Code notes that only certain types of aggravated murder are currently punishable by death: murder of a law enforcement officer such as a police officer or a prison guard; murder of a judicial officer, including judges, registrars and prosecutors; murder of a witness or juror; murder of more than one person; murder committed by a defendant who has a prior murder conviction; and murder in exchange for value.

The only two possible sentences are either death or life without parole. Any other type of murder carries a term of imprisonment of 30 to 60 years.

The amendment further provides that any murder committed in the course of/or in furtherance of a robbery, rape, kidnapping, terrorist act, or any other felony is punishable by death, with no explicit requirement of intent to cause death.

A felony is defined as any offence that is punishable by at least three years’ imprisonment.

“This is a fitting case for the imposing of the death penalty,” Ms Dorsett said yesterday.

The prosecutor noted that Duncombe and Johnson were convicted of all of the offences brought against them.

She said the victims, based on the testimony of Terrel Mackey, were taken to Newbold Farms where Duncombe and Johnson, armed with handguns, demanded money from Gardiner.

“Duncombe shot Shane Gardiner in the head when Gardiner maintained that he had no money. Braynen started screaming and Duncombe shot her to the head execution style,” the prosecutor added.

Ms Dorsett reminded the judge that the pathologist said that based on Gardiner’s wound, his death was not immediate and so there was evidence of suffering.

Relying on the case authorities of Forrester Bowe vs the Crown and Ernest Lockhart vs the Queen, the prosecutor said the court has the discretion to impose the death penalty in the most extreme and exceptional cases.

“We say that the heinous murder of the senior immigration officer and his girlfriend falls within the ‘worst of the worst’ threshold when we compare other murders like the case of Simeon Bain,” Ms Dorsett argued.

In the case of Bain, the 44-year-old had his life sentence reduced to 55 years by the Court of Appeal for the throat-slashing murder of former Burger King restaurant manager Rashad Morris after a failed plot to obtain money from the victim.

“In this case, in the middle of the night, a young neighbour heard a gunshot from Shane Gardiner’s house. We ask the court to infer that Shane Gardiner (was) home in a relaxed state. They were taken in the dead of night to a very eerie place of Newbold Farms. There’s no lighting at all in that area. We urge the court to take into consideration these two contributing members of society were taken hostage and one month later, hog hunters happened upon their remains. But for the grace of God, their remains may have not been found, leaving the affected families without closure,” the prosecutor said.

She said the court also had to consider whether there was a prospect of reform for the convicts.

She stressed that there has been no expression of remorse from either Duncombe or Johnson which, according to psychiatrist Dr John Dillard, is the first step to rehabilitation.

“We say that because they’ve expressed no remorse, they still pose a significant danger to society,” Ms Dorsett added.

Jerone Roberts, Duncombe’s second lawyer, countered that this case did not warrant the imposition of the death penalty as it did not fall within the “worst of the worst” threshold set out in prior rulings by the Privy Council.

Mr Roberts stressed that the psychiatrist could not definitively say that the two convicts were beyond reform, which is a hurdle the Crown must get over in order for their application to succeed.

“This is a case which unfortunately occurs often not only in the Bahamas but around the world,” Mr Roberts said, adding that even terrorist bombings have become daily occurrences.

Duncombe, Saunders, Johnson and Coakley, who all maintain their innocence, were each represented by lawyers Ian Cargill, Moses Bain, Donna Major and Terrel Butler.

Mrs Dorsett and Patrick Sweeting prosecuted the case.

A decision is expected to be handed down on December 12.