Court affirms firearm sentence

The Cayman Islands Court of Appeal handed down its judgment on Monday affirming the 10-year sentence imposed after Allan Garfield Ebanks pleaded guilty to possession of an unlicensed firearm.

Part of the appeal was based on the fact that Ebanks committed the offence in 2003 but did not enter his plea until 2006. Meanwhile, the legislature passed an amendment to the firearms law making 10 years the mandatory minimum sentence.

The amendment, brought into force on 15 November 2005, makes it clear that when a person is convicted or pleads guilty after that date, he shall be dealt with under the new law, regardless of when the offence was committed.

Attorney James Austin-Smith argued the appeal in July. Grounds of appeal included the assertion that the Firearms Law amendment was unconstitutional, unlawful and not in accordance with the Human Rights Act and not in accordance with Cayman’s international treaty obligations.

Solicitor General Cheryll Richards presented arguments in reply.

Attorney Phillip McGhee, who took over from Mr. Austin-Smith, was present to receive the judgment, as was Ms Richards.

Mr. McGhee reported that, in handing down the judgment, court president Justice Edward Zacca expressed the court’s concern over the circumstances of Ebanks’ case. He invited both sides to pursue the matter, perhaps with a view to petitioning the Governor regarding Ebanks’ sentence. Both sides agreed they would pursue the matter.

Ebanks had told the Grand Court that he found the gun and was going to take it to police after he showed it to his brother. The sentencing judge said her hands were tied by the law and she had to give him 10 years. If her hands were not tied, she would have given him four years.

In the appeal Mr. Austin-Smith argued that mandatory sentencing fails to take account of the particular facts of each case. As a result Ebanks’ sentence was arbitrary and grossly disproportionate to the crime.

The Court of Appeal pointed out that the 2005 amendment did not make any changes to the ingredients of the offence of possessing an unlicensed firearm, nor did it change the maximum sentence.

Ms Richards had submitted that, by enacting a minimum sentence, the legislature was in fact giving effect to guidelines that had been issued by the Chief Justice in 2001.

Mr. Austin-Smith also submitted that provisions of the 2005 amendment were contrary to certain fundamental rights, which were protected by the common law and are now protected by the European Convention on the Protection of Human Rights and Fundamental Freedoms.

Article 7 says, among other things: ‘Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.’

The Court of Appeal stated: ‘Unless and until the Legislature in the Cayman Islands enacts legislation incorporating the provisions of the Convention, the Convention cannot be enforced by the court.’

It added that, when the laws of the Cayman Islands are clear and unambiguous, it is the duty of the court to give effect to the local law even if, in so doing, the local law would conflict with international obligations.

The Court observed that Cayman’s constitution does not contain any provisions which guarantee the Fundamental Rights and Freedoms of people within these islands.

‘While at first sight this may appear strange, it is entirely consistent with the constitutional status of a Dependent Territory which has not achieved the political development of some of the countries in the Caribbean.’

The Court concluded that, until appropriate provisions are made in the Constitution, or until legislation is enacted giving effect to the European Convention on Human Rights in local law, the Court is obliged to give effect to the unambiguous law as it stands without invoking international law.

‘Whether this is done is a matter of policy of the Legislature, and not for the Court.’

The Court also found that it is not a violation of the principle of separation of powers for the legislature to set a mandatory minimum sentence for an offence.

The Legislature has the power to legislate for the peace, order and good government of these islands. It was for the legislature to determine whether it was necessary to amend the Firearms Law in 2005 in view of social conditions that existed. It was not for the Court to second guess and substitute its views.

The Court cited the famous and well-respected Lord Justice Bingham, who said: ‘It is open to the people of any country to lay down the rule by which they wish their state to be governed and they are not bound to give effect in their Constitution to norms and standards accepted elsewhere, perhaps in a different society.’

Hearing the appeal with Justice Zacca were Justice Ian Forte and Justice Elliott Mottley.

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