A proposal which could change how Cayman’s mandatory minimum 10-year prison sentence for firearms offences is applied has been put on hold after defence attorneys raised concerns about it.
Mr. Bulgin |
Right now, judges have no option in sentencing convicted firearms offenders whose cases come before the Cayman Islands Grand Court. If they’re found guilty, those defendants must get at least a ten year sentence.
The amended Firearms Law would give judges the potential to allow a lesser sentence if there were determined to be ‘exceptional circumstances’ relating to the offence or the offender.
But that change won’t help Maricelle Manahan of West Bay, who was one of the defendants sentenced to the mandatory minimum earlier this year.
‘Those who committed a relevant offence before 15 November, 2005, (the date the 10-year minimum sentence provision took effect) but have already been sentenced…are still apparently caught in the 10-year mandatory sentence,’ Attorney Nicholas Dixey wrote in an e-mail to the Caymanian Compass. Mr. Dixey is representing Manahan in the firearms case.
During sentencing, a judge agreed Manahan did not deserve a 10-year sentence and said the defendant would have been given less prison time if his case had been heard in Summary Court. (Compass, 13 August)
Mr. Dixey also pointed out that it appears the amended Firearms Law, which legislators were set to approve Monday, would still be made retroactive for offenders who committed their crimes before 15 November, 2005. In other words, the defendants would still have to successfully argue that they had exceptional circumstances to escape the mandatory 10-year sentence if their offence happened before the law took effect.
‘(This would occur) even though there was no mandatory sentence in existence at all when they committed the offence,’ Mr. Dixey said.
The retroactivity issue was thought to be one of the matters holding up passage of the bill, which now won’t be able to occur until the legislature meets again in November.
Attorney General Samuel Bulgin said he had received some e-mails that contained ‘last-minute representations’ made by members of the bar.
‘I would still like to provide them an opportunity…to take their concerns about that legislation,’ Mr. Bulgin said.
In no case would defendants have their sentences changed if their case had already been disposed of, according to the attorney general.
However, a case is not considered disposed of until all appeals are exhausted and there are at least a few cases, including Manahan’s, which are likely to be affected by a matter that is now before the Court of Appeal.
Allan Garfield Ebanks, 27, was sentenced to 10 years in prison for a 2003 incident in which a gun went off and hit his brother in the leg. Ebanks’ defence was that he was showing the gun to his brother when it accidentally fired.
The judge hearing Ebanks’ case also said that a lesser sentence was probably warranted, but said her hands were tied by the current Firearms Law.
During the sentencing Ebanks’ attorney James Austin-Smith said the November 2005 amendment, which put the mandatory minimum 10-year sentence into the law was one of the most poorly-drafted and unjust pieces of legislation he had ever seen.
Mr. Austin-Smith has argued that the 10-year minimum penalty for firearms offences in Cayman is unconstitutional and that it was beyond the powers of the legislature to pass the law.
The outcome of the Ebanks appeal has not been determined. Mr. Austin-Smith has said he may appeal the case to the Privy Council in London or the European Court of Human Rights in Strasbourg, depending on how the Cayman court rules.
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