Judge had ‘no choice’ in 10 year sentence

A Grand Court judge was forced to sentence a man to 10 years jail for possessing an unlicensed firearm Friday, despite the judge saying the offence certainly warranted a lesser sentence.

Maricelle Manahan, 27, of West Bay is just the latest person to receive a mandatory minimum sentence of 10 years under an amendment to the Firearms Law passed by the PPM Government in 2005.

‘I have no option to give you any lesser sentence because the Legislature has spoken on the subject,’ Justice Alex Henderson told Manahan.

He noted that Manahan deserved a substantial prison sentence, but said he would have imposed a lesser sentence, had the law given him discretion to do so.

Although Manahan was arrested in June 2004 – more than a year before the Firearms Law amendment was passed – for having an unlicensed firearm, ammunition and a magazine, he came under the 2005 amendment because the law applied retroactively.

No evidence was led by the Crown that Manahan had used the firearm and ammunition in any criminal activity. In sentencing, Justice Henderson said Manahan probably kept the gun for self-protection from people in the drug trade.

Earlier, Defense Attorney Nicholas Dixey told the court that, had the Crown consented to Manahan being tried in the Summary Court, he would have only been subject to a maximum four year sentence – the most that court can impose unless a law expressly states otherwise.

That amounts to a breach of the separation of powers, Mr. Dixey inferred, as it means the executive branch of government is effectively determining the sentence, not a judge.

Mr. Dixey later told the Caymanian Compass his client would ‘almost certainly’ consider appealing and will keep an eye on a similar appeal case before the Cayman Islands Court of Appeal.

An appeal could potentially go all the way to the Privy Council, who may want to consider whether the mandatory sentencing and retroactive elements of the law are contrary to UN Covenant on Civil and Political Rights and the European Convention on Human Rights and Fundamental Freedoms.

In court, Mr. Dixey raised the possibility that the amendments could be unconstitutional.

Although he did not elaborate on this point, a Privy Council appeal could hear argument that the law is contrary to the West Indies Act, which says the Cayman Islands Legislature exists to ensure peace, order and good governance in the Cayman Islands. It would be open to Manahan’s legal team to argue that it is not good governance to pass legislation that puts the UK government in breach of its international obligations.

Charges

The two charges for possessing of an unlicensed firearm came about after police attended the West Bay house Manahan was living in with his girlfriend shortly after 12pm, 2 June, 2004 and arrested him for having a .22 caliber Marlin rifle, six rounds of ammunition and a magazine for ammunition.

At issue was whether Manahan was in possession of the items – he alleged they were planted there and that admissions he initially made against himself were the result of police intimidation.

Police alleged Manahan gave an oral confession when they attended the rented house, saying ‘I know what you are here for,’ before nodding in the direction of the gun. Police alleged Manahan then said ‘Me no tell no lie, I found it at Boggy Sand Rd. [West Bay] three weeks ago.’

The police’s evidence of having found the gun at Manahan’s house was corroborated by a witness statement given by Lisa Ellis, Manahan’s housekeeper; however the defense had no opportunity to cross-examine Ellis’s evidence as she did not give evidence at trial.

In an interview the next day, Manahan was said to have admitted having possession of the firearm, ammunition and magazine and signed a statement to that effect.

Manahan claimed he told police he had no knowledge of the gun when they attended the house on 2 June and that he told them the same thing during the police interview the following day. He said it was only after the two police officers threatened him in an aggressive manner that he told police what they wanted to hear.

Manahan alleged police threatened to arrest his girlfriend, tell social services agencies that the couple were bad parents, and revoke Manahan’s parole.

He also questioned why police did not check the gun for fingerprint and DNA evidence, nor make an audio recording of their interview with him on 3 June.

Mr. Dixie argued that another inconsistency in the Crown’s case was that both police officers recorded the date of 2 June, 2004 as the date of the police station interview, when the interview was in fact done on 3 June. He asked why the two officers would make the same mistake if they were not collaborating about what Manahan had said in the interview room.

Manahan gave evidence alleging that one of the officers had promised not to oppose bail because Father’s Day had been approaching and had also not requested Manahan’s parole be reviewed, despite being arrested for a firearm crime. Manahan said this was evidence that police had made a deal with him in return for him giving self-incriminating evidence.

Self-incriminating evidence

But Crown Counsel Richard Hearnden said parts of Manahan’s evidence were implausible, and that it was only after he was advised by a lawyer and realised he had made admissions against himself that he changed his story.

One example of this Mr. Hearnden offered was the fact that police had quoted Manahan as saying he found the gun on Boggy Sand Rd. on 2 June, then saying the next day he had found the gun in a plastic bag on a beach at Barkers. He asked why the police officers would allow this contradiction to remain if they were conspiring with evidence against Manahan.

Mr. Hearnden told the jury they could be sure Manahan was lying and that if they came to that conclusion, they must find him guilty.

After deliberating, the seven member jury returned unanimous guilty verdicts on both counts of possessing an unlicensed firearm. The first count related to the possession of the rifle, and the second count related to the possession of the ammunition and magazine.

In addition to the 10 year mandatory sentence for the possession of the firearm, Justice Henderson imposed a five years sentence – to be served concurrently – for the possession of the ammunition and magazine. Although both offences come under the same charge of possession of an unlicensed firearm, the statute only imposes a mandatory 10 year minimum sentence for offences related to firearms, not ammunition and other accessories.

Justice Henderson also approved the crown’s application for an order of forfeiture in relation to the weapon, ammunition and magazine.

Pullout

Although Manahan was arrested in June 2004 – more than a year before the Firearms Law amendment was passed – for having an unlicensed firearm, ammunition and a magazine, he came under the 2005 amendment because the law applied retroactively.

0
0

NO COMMENTS