10-year firearms sentences changed

A law that required everyone convicted of a firearms offence in the Grand Court to be sentenced to at least 10 years in prison has been changed to allow judges some discretion in making sure the punishment fits the crime.

The Legislative Assembly has unanimously approved amendments to the Firearms Law, which will let judges give less than 10 years in prison to a defendant if they decide there were exceptional circumstances involved in the commission of the crime.

The amended bill does not specifically define what exceptional circumstances might entail.

The changes also give defendants the chance to serve less time in prison if they plead guilty to a firearms offence. Under the law, the mandatory minimum sentence would drop to seven years if the defendant admits to the charge.

Any judge who decides there were exceptional circumstances that led to a firearms offence would have to explain their reasoning in determining those circumstances.

Attorney General Samuel Bulgin told the Legislative Assembly Wednesday that amendments to the Firearms Law in 2005 had some unintended consequences that judges had previously said tied their hands with mandatory minimum sentences.

“The court does not have to take circumstances of the offence or the offender under (the 2005) law,” Mr. Bulgin said.

Defence attorneys had also pointed out that the Firearms (Amendment) Law, 2005 included a provision that essentially allowed prosecutors to determine what sentence a defendant would be eligible for when it was decided what court would hear that case.

Those who appeared in Summary Court were eligible for a greatly reduced sentence, but those cases in Grand Court were subject to 10-year minimum sentences.

The amendment approved Wednesday removes the distinction and places the same minimum sentences on firearms cases whether they are heard in the Grand Court or in Summary Court.

Opposition MLA Julianna O’Connor-Connolly asked whether it was unusual for judges to be asked to explain their reasoning in sentencing a defendant. She also raised questions about why the law was being changed in favour of the accused.

Mr. Bulgin said there was legal precedent in the United Kingdom for requiring judges to explain their actions.

On the other issue, local defence attorneys have complained for more than a year about the 10-year mandatory minimum sentences, and have argued in favour of taking those sentences out of the law altogether.

Lawyers with the Cayman Islands Criminal Defence Bar Association have also said the law was being made retroactive to those who had committed gun crimes before 15 November, 2005, which is when the mandatory minimums took effect.

Mr. Bulgin said the amended law allows defendants whose crimes occurred before that date to “take advantage of the exceptional circumstances” clause.

Defence lawyers said neither the minimum sentencing guidelines, nor the exceptional circumstances provisions should apply to crimes that occurred before 15 November, 2005.

However, a recent Court of Appeal decision in the case of defendant Allan Garfield Ebanks stated, while the retroactivity issue may run afoul of European human rights conventions, no such conventions were applicable here because the Cayman Islands had not enacted legislation incorporating provisions of the conventions.. (See Caymanian Compass, 10 December ‘Court affirms firearms sentence’)

The court invited attorneys on both sides of the case to pursue the matter, possibly by a petition to the governor.

The amended Firearms Law also does not address the issue of the age of a defendant.

The Cayman Islands Human Rights Committee opined in 2006 that the law could end up forcing a 12-year-old with an air rifle to serve a 10-year minimum sentence.

Mr. Bulgin said such offences by those younger than 18 would fall under the Youth Justice Law, and would not be subject to the mandatory minimums under the Firearms Law.

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