There has been an increase in firearm charges in Cayman, with 22 offences charged last year and 55 charged so far this year.
Crown Counsel Nicola Moore gave those figures to the Court of Appeal on Tuesday. The judges were hearing an appeal against a sentence of two years for importation and possession of an air rifle without the required permits.
Attorney Edward Renvoize argued that the sentence was manifestly excessive.
He said this was the first case to be argued since the Firearms Law was amended to allow judges to take into account exceptional circumstances. Apart from the importance of this case to his client, attorneys would be grateful for any guidelines the Court of Appeal might hand down.
Ms Moore concurred that guidelines would be of assistance. She asked the court to also take into account the prevalence of the offence and the potential impact of even a small number of unlicensed firearms in a small environment like Cayman.
She said she was not commenting on the case before the court that day, ‘but there are firearms in circulation used in the commission of offences.’
The Firearms Law has long provided a maximum of 20 years for possession of an unlicensed firearm. In October 2005, the legislature amended the law to make 10 years the mandatory minimum for anyone who pleaded guilty or was found guilty.
In January 2008, the legislature amended the law again to provide for a sentence of at least seven years for someone who pleads guilty and kept the term of at least 10 years for the person found guilty.
The amendment made these sentences mandatory unless the court found ‘exceptional circumstances relating to the offence or to the offender which justify its not doing so’.
The attorneys and judges discussed not only exceptional circumstances but also BB guns, air guns and lethal barrelled weapons as distinct from non-lethal barrelled weapons. All require a firearms licence.
Mr. Renvoize said the court has to consider the individual facts of each case.
Justice Ian Forte, acting court president, said one also had to be mindful that firearm offences had risen sharply in Cayman over the last few years, which had caused the legislature to impose a mandatory minimum.
Mr. Renvoize submitted that the sentence should reflect the criminality of the offence. Factors included type of firearm involved, the use to which it was put, the intention for having it and the character of the offender.
In the appeal before the court, the sentence should be a ‘short, sharp shock,’ he said.
Angel Chavarria Atily pleaded guilty in May this year and was sentenced in July to two years imprisonment for importing the air rifle between 9-11 March 2007 without an import permit and then having it in his possession until 31 March 2007 without a licence. He was 19 at the time of the offences.
Mr. Renvoize said Atily bought the rifle legally in the US without any licence or registration. He then brought it to Cayman along with other purchases without knowing it was considered a firearm. After learning it was firearm, he obtain application forms to register it. But before registering it, he took it out to a wasteland and fired it.
Justice Elliott Mottley asked how long Atily kept the gun after learning it was illegal. Told it was about three weeks, the judge said it was three weeks because that was when the police came to his house.
Mr. Renvoize said he could not get away from the fact that Atily made a mistake and then acted stupidly. But that was why the court should consider the criminality.
Justice Forte said Atily might not have had any criminal intention but the rifle could be stolen by someone who did have criminal intent.
Justice Geoffrey Vos said he had read the entirety of the three hearings Atily had before the Grand Court. He said the sentencing judge was obviously very concerned about the mitigating features. She had accepted there were exceptional circumstances and felt compelled to impose two years. That was a big reduction from the seven years set by law.
After an adjournment, Justice Forte said the court had considered the matter and the appeal had to be allowed. He made it clear the judges came to this decision because of the special circumstances of this particular case. ‘Our reasons will be placed in writing,’ the president said.
Earlier he confirmed that the sentencing judge gave a global figure of two years for both counts. That two-year sentence was vacated and sentences of 12 months were substituted for each offence, but made to run concurrent.
The total was therefore 12 months, with Atily’s time in custody to count.