R v David O'Connor
Jurisdiction | Turks and Caicos Islands |
Judge | Adderley, P |
Judgment Date | 29 February 2024 |
Neutral Citation | TC 2024 CA 3 |
Docket Number | AG REF 1/23 |
Court | Court of Appeal (Turks and Caicos) |
In the Matter of the Attorney General's Reference (No. 1 of 2023)
And in the Matter of Section 3 and Section 30 of the Firearms Ordinance (As Amended)
The Honourable Mr Justice Adderley, President (Ag.)
The Honourable Madam Justice Cornelius-Thorne, JA
The Honourable Mr Justice Hylton, JA
AG REF 1/23
IN THE COURT OF APPEAL
PROVIDENCIALES (CRIMINAL DIVISION)
Attorney General's Reference — Firearms Ordinance — Sentencing — Mandatory Minimum Sentence — Exceptional Circumstances — Whether in the event of a conviction on a unlawful firearm charge a custodial sentence is mandated — Whether upon a finding of exceptional circumstances the judge is free to sentence at large.
In five separate cases within a two year period each of the interested parties pleaded guilty to charges of possession of an unlicensed firearm and ammunition under the Firearms Ordinance CAP 18.09. The judges found that there were “exceptional circumstances” and concluded that sentencing was therefore at large. Four of the offenders were fined and one was given a custodial sentence below the mandatory minimum. The Honourable Attorney General is of the view that the facts did not constitute exceptional circumstances and that in any event the Ordinance did not allow the imposition of non-custodial sentences. In the absence of the right of the Crown to appeal in this jurisdiction the Attorney General has referred the matter to this court under the Attorney General's Reference of Question Ordinance CAP215.
Held: Under the Firearms Ordinance CAP 18.09:
(1) Upon a finding of exceptional circumstances sentencing is not thereby at large
(2) A judge has no jurisdiction under the Ordinance to impose a non-custodial sentence and the imposition of such a sentence is therefore wrong in principle
(3) As to the determination of exceptional circumstances it is undesirable for this court to prescribe a set of facts that would constitute exceptional circumstances or are capable of constituting exceptional circumstances as it might unduly fetter the discretion of the judge, but a test for a set of circumstances which according to Rehman may be considered exceptional would be those which “if to impose five years' imprisonment 1 would amount to an arbitrary and disproportionate sentence” ( Rehman at [16]). We approve that test. Within the legal framework of the TCI, and considering the obiter statements made in R v Merrion and R v Kelly, we would take the test for exceptional circumstances to mean “a set of particular and unusual circumstances that affect the offender or the offence and which in the opinion of the court justify it in not performing its statutory duty of imposing the mandatory minimum sentence. In forming that opinion the court must have regard to the dominant purpose of Parliament in enacting the section”.
(4) R v Aloysius Ebner (CR 45 of 2019) [2019] TCASC 3 was wrongly decided.
A-G's Reference (No 23 of 2009); R v Aloysius Ebner (CR 45 of 2019) [2019] TCASC 3; Aubeeluck v The State of Mauritius [2010] UKPC 13; R. v Avis [1998] 2 Cr. App. R. (S.) 17; Benjamin v R (1964) 7 WIR 459; R v Bowler [2007] EWCA Crim 2068; R v Anthony Clarke Junior; Lavardo Outten and R v Earnest Dolce (AG R 1 of 2017) [2018] TCACA 2; Jude Denejour v R (CR-AP 8 of 2021) [2022] TCACA 9; Stan Forbes v Regina (CRAP 6 of 2019) [2020] TCACA 9; R v Jordan; R v Alleyne; R v Redfern [2004] EWCA Crim 3291; Regina v. Kelly (Edward); Regina v. Sandford [2000] Q.B. 198, [1999] 2 Cr App R (S) 176; Jim Kelly Joseph v R, (CR-AP 18/18) [2019] TCACA 11; Laurensky Lefranc v Regina (CR-AP 13 of 2019) [2020] TCACA 21;; R v Merrion (2009) EWCA Crim 1683; R v Nancarrow [2019] EWCA Crim 470, [2019] 2 Cr. App R.(s.) 30; R. v Rehman; R v Wood) [2005] EWCA Crim 2056;; Reyes v R — Privy Council Appeal No. 64 of 2001; T-Jon Xaviers Wilson v R (CR 11 of 2019) [2019] TCASC 14 (14 August 2019).
The Attorney General, the Honourable Rhondalee Braithwaite-Knowles KC, and with her Ms Clemar Hippolyte for the Crown
Mr Oliver A Smith KC and with him Kimone A Tennant for the interested Party
Adderley, P (Ag.)
This consolidated Attorney General's Reference (“AG's Reference”) is the first of its kind since the Mandatory Minimum Sentence and exceptional circumstances provisions were introduced by the Legislature and brought into force in the Firearms Ordinance CAP 18:09
in 2010 in the Turks and Caicos Islands (“TCI”). This is also the first time the court is being asked to determine whether in the event of a conviction on an unlawful firearm charge a custodial sentence is mandated, or whether upon a finding of exceptional circumstances the judge is free to sentence at largeSince there is no statutory provision in this jurisdiction giving a right of appeal to the Crown in criminal cases, this Reference by the Attorney General is made pursuant to the Attorney General's Reference of Question Ordinance CAP 2:15. In it she seeks answers to several questions arising out of the sentences meted out by Judges in the subject cases.
Section 3 of the said Ordinance provides as follows:-
“ Reference to Court of Appeal
3. The Attorney General may, with the approval of the Governor in Cabinet, refer to the Court for hearing and consideration, any question of law or fact concerning—
(a) the interpretation of the Constitution;
(b) the constitutionality or interpretation of any Ordinance; or
(c) any other matter that the Attorney General thinks fit, whether or not that other matter is in the opinion of the Court similar to the matters set out in paragraphs (a) and (b), is of public interest or public importance.”
4. Where a reference is made to the Court of Appeal, the Court is required to:
a) hear and consider the reference;
b) answer each question referred to it; and
c) certify to the Attorney General its opinion on each question giving the reasons for each answer”
In the absence of Sentencing Guidelines especially for firearm and related serious offences the Honourable Attorney General is of the opinion that it is of the utmost importance that the Court of Appeal through an AG's Reference be invited to formulate, even if in a general sense, some sentencing guidelines for firearm and related serious offences. She submitted that it is in the interest of public order, safety and security, that certainty be brought to what constitutes exceptional circumstances, and when properly found to be present in the cases before the Court, what is the proper sentence that should be imposed. Otherwise, public trust and confidence in the justice system may be eroded.
In this judgment we have dealt only with the issues that have been raised before us. For example, no constitutional issues have been raised and so we have not dealt with any.
The questions at the heart of the AG's Reference are of sufficient public interest and importance to warrant due consideration by the Court of Appeal. The Hon Attorney General holds the opinion that both R v Aloysius Ebner 2 and the cases at Bar, are precedents that should not be allowed to stand unchallenged so as not to beget similar lenient sentences and render the legislative intent of the provisions of the Firearms Ordinance nugatory.
The Reference relates to the five matters outlined below.
On December 15, 2022, after pleading guilty to the firearms charges LobbanJackson, J sentenced Mikey Williams to 3 years' imprisonment, suspended for two years for each of the two counts of possession of firearm and possession of ammunition contrary to the Firearms Ordinance
On May 16, 2023, Lobban-Jackson, J sentenced David O'Conner to a fine of $5670.00 with no custodial sentence. Mr. O'Connor had pleaded guilty of being in possession of 44 rounds of 9 mm. hollow-point type of ammunition.
On June 5, 2023, Lobban–Jackson, J. sentenced Alex Guzman to a non-custodial sentence of a fine of $3,500. Mr. Guzman had pleaded guilty to being in possession of a firearm and ammunition contrary to the Firearms Ordinance.
On 11 August, 2023, Selochan, J sentenced Alec Keith Nash to a non-custodial sentence of a fine of $5,000.00 to be paid forthwith or 60 days imprisonment in default of payment. Mr. Nash had pleaded guilty to the charge of possession of a Firearm and possession of Ammunition, contrary to section 3(1) of the Firearms Ordinance.
On September 18, 2023, Selochan, J sentenced Michael Grimm to a term of eight (8) months imprisonment with any time spent in custody to be taken into account. Mr. Grimm had pleaded guilty to being in possession of ammunition contrary to the Firearms Ordinance.
It is submitted by the Honourable Attorney General that:
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i. In the case of R v David O'Connor (O'Connor) the Court was wrong in finding that exceptional circumstances existed and the sentence imposed was unlawful, and even if lawful, was unduly lenient and manifestly inadequate;
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ii. In the case of R v Alex Guzman (Guzman), the sentence imposed was unlawful and even if lawful, was unduly lenient and manifestly inadequate;
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iii. In the case of R v Mikey Williams (Williams) the Court was wrong in finding that exceptional circumstances existed. The sentence imposed was unlawful and even if lawful, was unduly lenient and manifestly inadequate;
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iv. In the case of R v Alec Keith Nash (Nash) the Court was wrong in finding that exceptional circumstances existed and the sentence imposed was unlawful, and even if lawful, was unduly lenient and manifestly inadequate.
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v. In the case of R v Michael Grimm (Grimm) the Court was wrong in finding that exceptional circumstances existed and the sentence imposed was unlawful, and even if...
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