Flare gun was used as weapon

An argument over a dog led to a physical fight between two women and ended when a man was injured from the discharge of a flare gun.

The incident occurred in September 2004 and concluded this month when Mark Anthony Jefferson, 22, was fined $1,000 and ordered to pay the injured man $1,500 compensation.

Jefferson pleaded guilty to possession of an imitation firearm with intent to commit an offence and assault causing actual bodily harm.

In passing sentence, Justice Algernon Smith accepted that Jefferson had been provoked.

Defence Attorney Menelik Miller and Crown Counsel Elisabeth Lees Smith differed in their opinions as to whether a flare gun is a weapon.

Under the Firearms Law, a flare gun meets the definition of an imitation firearm: ‘anything which has the appearance of being a firearm, whether or not it is capable of discharging any shot, bullet or other missile’.

The matter arose because he was part owner of a dog being looked after by a West Bay couple, Mr. and Mrs. Jason Timothy Smith.

The other part-owner had gone with his girlfriend to the couple’s home and got involved in an incident that led him to take a machete out of his car. They left, but returned about a half hour later. This time Jefferson was with them.

An argument ensued and the party was asked to leave. A fight broke out between two women and Jefferson helped break up that fight.

Meanwhile, another member of the household took it upon herself to reverse the vehicle that Jefferson’s party had arrived in, out of the yard.

Ms Lees said that up until this time Jefferson had not been involved in any violence.

But when he and his two companions got into the car to leave, Mr. Smith, who had earlier been confronted with the machete, threw a five-foot-long piece of metal at the car.

Jefferson then got out of the car, pulled from his waist something that looked like a gun and pointed it at Smith.

Smith thought it was a gun and managed to turn around, at which point the gun was fired by Jefferson.

The flare hit Smith in the back and knocked him to the ground.

Police were called. One officer said he saw heavy bleeding from Smith’s back.

Smith was treated at hospital for a superficial burn and was in discomfort for about two weeks. At the preliminary inquiry about two years later he said there were still times he felt pain in his back, as if he were being shot again.

The burnt-out flare gun cartridge was recovered from the scene and taken to court as an exhibit

Neither Ms Lees nor Mr. Miller had been able to find any previous cases in which a flare gun had been used this way.

For sentencing purposes, she suggested the court might look at general guidelines: what sort of weapon was involved, what use was made of it, with what intention did the defendant possess it, and what was the defendant’s record.

Cayman’s Firearm Law, as it was when this offence occurred, provides that whoever has an imitation firearm with intent to commit an offence is guilty and liable to imprisonment for 20 years and a fine of $100,000.

Ms Lees said that although the flare gun was an imitation firearm under the law, ‘it was still a weapon capable of causing harm as opposed to, for example, a cardboard shotgun that was supposed to resemble a firearm but didn’t and couldn’t cause harm. In this case, it was a weapon that could cause harm and did cause harm.’

Justice Smith asked if the flare gun was lethal. Ms Lees said it was not a lethal-barrelled weapon.

Mr. Miller argued that the item used was not a weapon. ‘It is a flare gun and has a legitimate purpose and can be lawfully purchased in any store,’ he said. ‘It can be put to a use that would make it a weapon, but I would submit it is therefore something similar or akin to something like a baseball bat,’ he said.

Mr. Miller described Jefferson as a peacemaker in the incident between the two women, one of whom was injured by a cement block. Jefferson had shown restraint until the five-foot piece of metal was thrown. The defence position was that the metal was aimed at him; it hit his side of the car.

Using the flare gun in those circumstances did not amount to self-defence, but there was certainly an element of provocation, Mr. Miller said. Jefferson did not go to the yard, jump out of the car and discharge the gun. If he had, that would be a different set of facts leading to a different sentence.

Jefferson had no previous convictions for any violence and had expressed his remorse to the injured man. He was in full-time employment and was willing to pay compensation.

The judge adjourned the matter to advise himself on the law and give Ms Lees a chance to speak with Smith to find out if he would accept compensation or if he planned to sue in a civil court.

The next day, Ms Lees told the court that the victim would accept compensation.

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