Bowen (T) v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 08 April 2009
• Court: Court of Appeal (Cayman Islands)
• Date: 08 April 2009

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

T. BOWEN

and

R.

C.H. Allen for the appellant;

Ms. T. Hutchinson, Crown Counsel, for the Crown.

Case cited:

(1) R. v. Rehman (Zakir), [2006] 1 Cr. App. R. (S.) 77; [2005] Crim. L.R. 878; [2005] EWCA Crim 2056, distinguished.

Legislation construed:

Court of Appeal Law (2006 Revision), s.9(3): The relevant terms of this sub-section are set out at para. 9.

Firearms Law (2006 Revision), s.15: The relevant terms of this section are set out at para. 2.

Firearms Law (2008 Revision), s.39: The relevant terms of this section are set out at para. 5.

s.45: The relevant terms of this section are set out at para. 5.

Firearms-possession and use of firearms-sentence-‘exceptional circumstances’ exempting accused from minimum sentence under Firearms Law (2008 Revision), s.39(2) include character, co-operation with police and guilty plea

Firearms-possession and use of firearms-sentence-no re-opening of sentence under Firearms Law (2006 Revision) in reliance on amended minimum sentence provision in 2008 Revision, s.39(2)-if appellant already convicted and sentenced, transitional measures not to apply even though appeal pending

The appellant was charged in the Grand Court with possession of an unlicensed firearm, on October 5th, 2007.

The appellant was convicted and sentenced to the minimum term of 10 years, as required at the time under s.15(5) of the Firearms Law (2006 Revision). When sentencing him, the court acknowledged that if it had had the discretion, it would have imposed a lower sentence and consequently ordered a social enquiry report because it was aware that, with statutory amendments pending, the appellant might subsequently wish to challenge the sentence. The mandatory minimum sentence requirement was amended by the Firearms (Amendment) Law 2008 and then consolidated in s.39 of the Firearms Law (2008 Revision), which provided that the minimum 10-year sentence could be departed from where it was justified by ‘exceptional circumstances.’

On appeal against his sentence, the appellant submitted that the exception in s.39(2) of the 2008 Revision applied to his case because, since his appeal was pending at the relevant date, it came within the transitional provisions contained in s.45(2). He therefore submitted that the matter should be remitted to the Grand Court for sentencing or that the Court of Appeal should exercise its discretion to find that ‘exceptional circumstances’ existed, warranting a sentence of less than 10 years.

Held, dismissing the appeal:

(1) The amended minimum sentence provision, introduced by s.6 of the Firearms (Amendment) Law 2008 and consolidated in s.39(2) of the Firearms Law (2008 Revision), would not apply because s.15(5) of the

Firearms Law (2006 Revision) was the applicable law when the appellant was convicted and sentenced on October 5th, 2007. This was because (a) the date of commencement of the 2008 Law was four months after the appellant”s conviction and sentencing; (b) the transitional measures under s.45 of the 2008 Revision did not apply to the appellant since he had already been convicted and sentenced and it was irrelevant that his appeal was pending; and (c) further, the new provisions would not enable a matter already dealt with under the 2006 Revision to be reopened. At the time of the conviction, the court was required to pass a minimum sentence of 10 years and thus the appeal would be dismissed as the appellant could not show, pursuant to s.9(3) of the Court of Appeal Law (2006 Revision), that a ‘different sentence ought to have been passed’ (paras. 9–12).

(2) Nevertheless, even if the Law as amended in 2008 were retrospectively applicable at the time of the appellant”s conviction and sentencing, the new exception to the statutory minimum sentence under s.39(2) could not have applied to him. The court would only be entitled to impose a lesser sentence if there existed ‘exceptional circumstances’ relating to the offence and offender-such as his character, co-operation with the police and guilty plea-which would justify such a departure. Here there were no such ‘exceptional circumstances’ and the minimum 10-year sentence would therefore have applied anyway (para. 13; paras. 18–19).

1 CHADWICK, P.: On October 5th, 2007, Todd Omar Bowen was convicted before Henderson, J. and a jury on a charge of possession of an unlicensed firearm, contrary to s.15(1) of the Firearms Law (2006 Revision).

2 Section 15 of the Firearms Law, as it stood on October 5th, 2007, following amendment by the Firearms (Amendment) Law 2005, contained provisions in these terms:

‘(1) Subject to subsection (2), no person shall be in possession of any firearm except under and in accordance with the terms of a Firearm User”s (Restricted) Licence.

. . .

(5) Whoever contravenes this section is guilty of an offence and liable on conviction-

(a) where the offence is in respect of a...