After two more defendants from Cayman Brac were sentenced to two years imprisonment for firearms, Crown Counsel Andre Mon Desir gave notice of appeal last week.
Mr. Mon Desir submitted that Magistrate Margaret Ramsay-Hale had the power to impose the new 10-year mandatory minimum sentence for firearms offences.
After hearing from Defence Attorneys Lloyd Samson and Keva Reid and adjourning to review the law, the magistrate disagreed.
The powers of the courts are set out in the Criminal Procedure Code, she explained. This code states that the Grand Court may pass any sentence authorised by law.
But the Summary Court, where magistrates preside, may pass sentences up to four years subject to the express provision of any other law.
She used the well-known example of the Misuse of Drugs Law, which gives magistrates special statutory jurisdiction to impose sentences of more than four years. The Misuse of Drugs Law expressly states on summary conviction, the magistrate pointed out.
In her view, the Firearms Law was silent and does not expressly confer on the Summary Court power to impose a sentence of more than four years – no matter what sentence was predicated by that statute.
Therefore, the Criminal Procedure Code applied, and the Summary Court’s maximum was four years.
The magistrate had indicated the same position last month when she dealt with two other defendants from Cayman Brac (Caymanian Compass, 9 December).
At that time she sentenced Andre Marcus Nixon, 21, and Raul Phillip Walton, 19, to one year for burglary and two years for possession of unlicensed firearms. They had pleaded guilty. The firearms were the only items taken in the burglary, which occurred at a Brac residence in November 2003.
Last Thursday, co-defendants Charles Ronald McLean and Thomas James Sevik were sentenced for their roles in the incident.
McLean, 28, had pleaded not guilty to being involved in the burglary. After trial, the court found him guilty of taking part by driving Nixon and Walton to and from the scene.
During mitigation, Mr. Samson asked the court to accept that McLean had pleaded guilty early in proceedings to the charge of possessing the firearms.
The magistrate agreed to give him such credit. She imposed 18 months for the burglary, with the two years for the firearms to run consecutively, for a total of three and a half years.
Sevik, 24, was not involved in the burglary. He was found guilty of handling stolen goods and possession of unlicensed firearms. The magistrate said there was no evidence that Sevik did any more than assist in concealing the firearms and firing one of them.
She considered that both charges covered the same offence and made it clear his sentence was two years.
On behalf of McLean, Mr. Samson noted that this defendant had no previous convictions. Married and with one child, McLean had great hopes of being able to study overseas for formal qualifications after working his way to the top grade of field assistant with the Lands and Survey Department.
References described McLean as honest, reliable, hard-working and a devoted family man. Mr. Samson said the defendant had become involved unwittingly but balanced his mistake later by helping to recover the firearms from where they had been hidden.
Ms Reid told the court that Sevik was well respected in the Brac community as the only trained Caymanian able to give nature tours there. He had been involved in that work for six years and was the only native-born land-based nature tourism guide. He has worked with school groups and hundreds of visitors, so that they could enjoy the beauty and tranquillity of the island.
Sevik’s naiveté and trustworthiness regarding his friends had got him where he was now. He maintained he had nothing to do with the guns other than see them, Ms Reid said.
She asked the court to consider that police would not have found the firearms without his assistance.
In passing sentence, the magistrate referred to letters from the defendants’ wives, asking for mercy and leniency.
One woman wrote that she and their little boy were now left alone to fend for themselves.
How is it, the magistrate asked, that people act without considering the damage they do to their victims, themselves and their family members who love them and rely on them.
Why must the court exercise mercy and be sorry for the families when it was the offenders who put their families at peril? It is a fact that sentences do not affect only the offender, she agreed. Sentences impact on the wife and all dependants; sometimes imprisonment can destroy a family.
If young men do not want their families destroyed, if they do not want to lose their opportunities for study, travel and job advancement, then they should avoid the conduct that brings them before a court, the magistrate declared.
In this case, she had been told that the firearms were stolen because it was thought that Nixon had been threatened. The defendants had no intention to use the firearms. But, the magistrate said, once they were out in the community they could have been used.
In McLean’s case, she said, the driver of the getaway car is as guilty as the person who enters and steals. If he had pleaded guilty he would have received the same sentence of one year.
There were no factors that would reduce the usual tariff of 18 months, she indicated. In fact, McLean was older than the others, talented and able. He of all the defendants should have known better.