The Queen v Dean Ryan Derby
| Jurisdiction | Cayman Islands |
| Judge | Cheryll Richards |
| Judgment Date | 15 September 2020 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 15 of 2020 |
Justice Cheryll Richards Q.C.
INDICTMENT NO: 15 of 2020
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Section 15(1) and (5) of the Firearms Law, (2008 Revision) Possession of Unlicensed Firearm and Ammunition — Section 39 of the Firearms Law — Minimum Sentence — Issue of Exceptional Circumstances.
Mr. Neil Kumar for the Crown
Mr. Keith Myers for the Defendant
The Defendant is before the Court for sentencing in respect of two offences of Possession of Unlicensed Firearm and Possession of Unlicensed Firearm (Ammunition) contrary to s.15 (1) and (5) of the Firearms Law 2008.
The particulars of the first count of the indictment are that he on the 13 th day of February 2020 at Ms. Francis Lane in the vicinity of #3 Myles Lane, George Town, Cayman Islands, had in his possession an unlicensed firearm, namely a Smith and Wesson M & P 9mm semi-automatic pistol, serial number DVF5443 which was not under and in accordance with the terms of a Firearm User's License. The second count charges that he, on the said date and at the same time had in his possession 9 rounds of ammunition, namely 9mm cartridges, which was not under and in accordance with the terms of a Firearm User's License.
The Defendant was convicted following a trial by Judge alone. The facts are detailed in the Verdict Judgment dated 26 th August 2020. In summary, on the date in question, at about 7:15pm, the described firearm and ammunition were found by the Police in the glove compartment of a silver Mitsubishi Colt motor car registration number 173 015 which was driven by and in the possession of the Defendant. The car had been left open, whilst parked along the street in the vicinity of a house where the Police executed a search warrant. The Defendant had been seen earlier coming from the house and was asked by the Police to wait until the search of the house was completed. He told the police that he had arrived at the area on foot and remained there for about an hour before being allowed to leave. He walked away leaving the car behind. After he left, the Police who had seen the car on initial arrival, made inquiries as to the owner of the car, given that it appeared to have been left unattended for a lengthy period. They searched the vehicle under the Misuse of Drugs Law and found the described firearm and ammunition. A Police search then began to locate the Defendant. They spoke to his mother. He handed himself in to the Police station just before midnight on the said day.
The case for the Defendant at trial and in interview with the Police was that he found the gun in the glove compartment of the car while driving towards the house, about three minutes before the arrival of the Police. The Defendant thus alleged that he had been “set up”. This, on the basis that the car had, in the course of that day, been in the possession of other persons, that the firearm and ammunition did not belong to him, had not been placed in the car by him and must therefore have been planted by a person or persons unknown. The Court rejected his account, concluding that the Prosecution had discharged its burden of proof to the required standard and that his claim of possession for only three minutes was not true. There was no evidence as to the length of time that he had been in possession.
Sentences for these offences are prescribed by s.15(5) of the said Law. The maximum term of imprisonment is liability to a fine of $100,000.00 and to imprisonment for 20 years. Section 39 of the Law provides minimum terms where the offence is in respect of a lethal-barreled weapon from which any shot, bullet or other missile may be discharged.
Section 39(2) provides that:
“Notwithstanding section 6(2) and (8) 8 of the Criminal Procedure Code, (2006 Revision), the 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 7 years (with or without a fine); or
(b) in any other case, impose a sentence of imprisonment for a term of at least 10 ten years (with or without a fine),
unless the relevant court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so; and such exceptional circumstances shall be stated by the relevant court.”
Counsel on behalf of the Defendant argues that there are, in this case, exceptional circumstances. The matters prayed in aid are, the age of the Defendant, he is 26 years old, he is of good character, he has a good family background and that his possession of the firearm and ammunition could only have been for a limited time.
Counsel also submits that, looking at the matters as a whole, that is, the collective impact of all the circumstances in this case, the imposition of the statutory minimum term would amount to an arbitrary and disproportionate sentence.
The Prosecution submits that there is nothing exceptional about the circumstances of the Defendant or the offending in this case and that the application of the minimum sentence provisions would not be arbitrary and disproportionate for a number of reasons. These include:
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i. That the gravity of gun crime cannot be exaggerated and that public protection is a paramount consideration, thus a deterrent sentence is required in this case.
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ii. The circumstances of this case are that a lethal-barreled weapon with nine live rounds of ammunition were left unsecured during the afternoon and early evening in an open and unattended motor car with the keys inside. It was therefore readily accessible by anyone.
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iii. There is no evidence of any significant adverse effect on the Defendant's health should the minimum term be imposed.
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iv. There are no circumstances which suggest exceptionality in terms of the Defendant's personal circumstances. The fact that the Defendant is a young man with no previous convictions cannot be considered as an exceptional circumstance. To do so would create a real risk that those persons looking for safe havens for firearms would recruit such persons in the hope of eliciting the sympathy of the Court.
Both Counsel have helpfully provided a number of authorities on sentencing for firearm offences and on the approach to exceptional circumstances. The Cayman Islands Sentencing Guidelines provides guidance as to the general principles which are applicable in the course of the sentencing exercise. There are no specific sentencing guidelines in respect of firearm offences in the Cayman Islands.
In the 2002 Statement on Tariffs and Guidelines for Sentencing for Certain Offences, the Chief Justice stated:
“As regards to firearm offences contrary to the Firearms Law, the Legislation is quite clear that the possession or use of any unlicensed lethal barreled firearm is an extremely serious offence. Under the Firearms Law, the maximum penalty for possession of an unlicensed firearm is 20 years and a fine of $100,000. 00. The tariff for that offence unless there are very mitigating circumstances will be 10 years. If on the other hand aggravating circumstances exists exist, for instance, the use of the firearm for the commission of a serious offence, the tariff will be in keeping with decided cases and will be significantly higher.”
These Guidelines pre-dated the Amendment to the Firearms Law which imposed a minimum term of 10 years following conviction after trial.
In the 2009 case of, Chavarria-Atily v. R 1, the Cayman Islands Court of Appeal considered the issue of exceptional circumstances following the Appellant's sentence for the offence of Unlawful Possession of an air rifle. The Court stated:
“In the Cayman Islands it has been the massive increase in offences under the Firearms Law that has led Parliament to enact the minimum sentences in respect of those offences, while at the same time making special provision for cases of exceptional circumstances. The mere possession of a firearm even without any intention to use it for a criminal offence can still be a danger to the public for the reason that it could get into the hands of someone who does have that intent”.
The Court referred in its judgment to the cases of R v. Avis 2 and R v. Zakir Rehman and Gary Wood 3.
In the case of R v. Avis, the English Court of Appeal stated that the appropriate level of sentence for a firearm offence will depend on all the facts and circumstances relevant to the offence and the offender. It will usually be appropriate for the sentencing court to ask itself a series of questions:
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i. What sort of weapon is involved?
i. Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use such as a sawn off shot gun will be viewed even more seriously than possession of a firearm which is capable of lawful use.
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ii. What if any use has been made of the firearm?
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iii. With what intention, if any, did the defendant possess or use the firearm?
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iv. What is the defendant's record?
i. The seriousness of any firearms offence is inevitably increased if the offender has an established record of committing firearm offences or crimes of violence.
In the case of Zakir Rehman and Gary Wood, the English Court of Appeal considered s.51A of the UK Firearms Act 1968 with regard to the imposition of a minimum term of 5 years' imprisonment unless there were exceptional circumstances relating to the offence or the offender. The Court noted that the rationale for the section, that is, the policy behind it, was to send out a deterrent...
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