R v J.a. Ebanks

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 27 September 2016
• Court: Grand Court (Cayman Islands)
• Date: 27 September 2016

Grand Court, Criminal Division

(Quin, J.)

R.

and

J.A. EBANKS

P. Moran, Deputy D.P.P., for the Crown;

J. Furniss for the defendant.

Attorneys: Govt. Legal Dept. for the Crown; J. Furniss for the defendant.

Cases cited:

(1)R. v. Dillon, 2014 (2) CILR N [13], applied.applied.

(2) R. v. King (1985), 7 Cr. App. R. (S.) 227; 82 Cr. App. R. 120; [1985] Crim. L.R. 748, considered.

(3) R. v. P, [2008] 2 Cr. App. R. (S.) 5; [2007] EWCA Crim 2290; [2008] 2 All E.R. 684; [2008] Crim. L.R. 147, applied.

(4) R. v. Rehman, [2005] EWCA Crim 2056; [2006] 1 Cr. App. R. (S.) 404; [2005] Crim. L.R. 878, applied.

(5) R. v. Sehitoglu, [1998] 1 Cr. App. R. (S.) 89, applied.

(6) R. v. Sinfield (1981), 3 Cr. App. R. (S.) 258, referred to.

(7) R. v. Sivan (1988), 10 Cr. App. R. (S.) 282; 87 Cr. App. R. 407; [1988] Crim. L.R. 771, applied.

(8) R. v. Smith, [2007] EWCA Crim 1434, considered.

Legislation construed:

Firearms Law (2008 Revision), s.15(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.”

s.15(5): “Whoever contravenes this section is guilty of an offence and, subject to section 39, is liable on conviction to a fine of one hundred thousand dollars and to imprisonment for twenty years.”

s.39(1): “This section applies where-

(a) an individual is convicted following a trial or a plea of guilty, by a court of summary jurisdiction or the Grand Court, of an offence under section 3(3), 15(5) or 18(6);

(b) the offence was committed on or after 15th November, 2005; and

(c) the offence is in respect of a machine gun, sub-machine gun, rifle, shot gun, pistol, or any lethal barrelled weapon from which any shot, bullet or other missile can be discharged.”

s.39(2): “Notwithstanding sections 6(2) and 8 of the Criminal Procedure Code (2006 Revision), the court of summary jurisdiction or the Grand Court before which the individual pleads guilty or is convicted, shall-

(a) in a case where the individual pleads guilty, impose a sentence of imprisonment for a term of at least seven years (with or without a fine).”

Firearms — possession and use of firearms without licence — sentence — “exceptional circumstances” exempting accused from minimum sentence under Firearms Law (2008 Revision), s.39(2) — defendant's significant assistance to police, providing accurate evidence leading to murder convictions, justified reduction in sentence

The defendant was charged with possession of an unlicensed firearm contrary to s.15(1) and (5) of the Firearms Law (2008 Revision).

The defendant was searched by the police and found to be in possession of a firearm and ammunition. He immediately admitted both were his, and stated that he had the firearm for his own protection.

The defendant pleaded guilty to possession of an unlicensed firearm, contrary to s.15(1) and (5) of the Firearms Law (2008 Revision), which prohibited the possession of any firearm, “except under and in accordance with the terms of a Firearm User's (Restricted) Licence.” Section 39 of the Firearms Law provided a minimum sentence of seven years' imprisonment following a guilty plea to possession of an unlicensed firearm unless there were exceptional circumstances relating to the offence or offender.

The defendant submitted that there were exceptional circumstances which merited a substantial discount in sentence, namely (a) he had provided evidence to the police leading to the conviction of two other persons for murder, as a result of which he had been threatened; and (b) he had carried the firearm for protection as a direct result of those threats.

Held, sentencing accordingly:

(1) Self defence did not constitute an “exceptional circumstance” for the purposes of sentencing for possession of an unlicensed firearm. The possession of a firearm, whether for self defence or the defence of others, could not amount to exceptional circumstances relating to the offence or to the offender justifying a sentence lower than the statutory minimum. If the court were to decide otherwise, such a decision would inevitably threaten the security of society in the Cayman Islands (para. 17).

(2) The defendant's assistance to the authorities as a witness did, however, constitute an exceptional circumstance. The court could give credit to an offender for “ready co-operation with the prosecuting or enforcement authorities.” The discount given would be specific to theparticular circumstances of the individual case, but should reflect the extent and nature of the assistance given or offered. The following factors were relevant in the present case: the sustained assistance given by the defendant, over a considerable period of time, which was provided to the authorities under almost constant fear and stress; the accuracy of the evidence given, which led to the conviction of two offenders charged with murder- in giving this evidence, the defendant had shown admirable courage and honesty; and the defendant's early admission and guilty plea. The defendant was a young man aged 22 who had only one previous conviction, for GBH, for which he had received a probation order. The court also noted the positive character reference from his employer. Taken together, these factors indicated that a substantial reduction in the defendant's sentence was appropriate. The defendant would be sentenced to 18 months' imprisonment, and the destruction of the firearm and ammunition would be ordered (para. 34; paras. 37-42).

1. QUIN, J.:

Summary of facts

On January 31st, 2016, officers of the Royal Cayman Islands Police Service (RCIPS) received a report that this defendant may have had a firearm in his possession. As a result, police officers went in search of the defendant and apprehended him whilst he was riding his bicycle in the West Bay area. The defendant was searched by the police and a Berretta semi-automatic pistol with three rounds of .25 ammunition were found to be in the defendant's possession.

2. The defendant immediately admitted that the firearm and ammunition were his, and he said that he had the firearm for his own protection.

3. At the time the defendant was stopped and searched by the police, a...