Unique case should never be repeated, judge says
A man arrested for possession of unlicensed firearms in 2004 was not brought to court until 2011, prompting Justice Charles Quin to deal with him as an exceptional case.
“Hopefully we will never see a repeat of this extraordinary delay in bringing a case of this nature to trial again,” he said before imposing a sentence of 12 months imprisonment on Herbert Foster, but suspending it for two years.
Justice Quin heard the facts on 21 October and ruled on sentence 30 November. He thanked Crown Counsel Tricia Hutchinson and defence attorney John Furniss for their help in sorting out what had happened.
Mr. Furniss said Foster had lived in Grand Cayman but he and his family went to live with relatives in Cayman Brac after Hurricane Ivan in September 2004. Later that month, while a family member was cleaning house, a .22-calibre rifle was found. Another relative received this information and passed it on to police. Officers visited the house and took custody of the firearm.
Foster was taken into custody and questioned. Days later, he took officers to a remote area of scrubland, where he retrieved a second rifle he had hidden there. Foster told police he took the firearms from a younger relative and had hidden them so that the young man would not get into problems. Asked why he did not turn them over to police, he said, “I don’t know.”
The next day the young relative was spoken to and he denied what Foster had said.
Foster was charged on 4 October, 2004, but apparently the charges were not filed in Summary Court until March 2005.
The next event apparently occurred in 2007, when Foster appeared before the Drug Rehabilitation Court, Justice Quin said in his summary. Foster did have a drug problem and then he encountered problems with the drug court regime. That was when the firearms charges came to light.
But for some inexplicable reason, the firearms themselves were not sent for testing until May 2010. Both were shown to be air rifles, designed to fire .22-calibre and .27-calibre pellets, respectively. They were in good condition and could produce velocity sufficient to perforate skin and penetrate organs and therefore cause serious injury or death. On that basis they were lethal-barrelled weapons, fitting the definition of firearm.
Foster was indicted on 10 February, 2011. He was remanded in custody from that date until he was bailed 27 May – some three and a half months.
Meanwhile, in November 2005, the Firearms Law had been amended to provide for a mandatory minimum sentence of 10 years for possession of an unlicensed firearm. The law was later amended to provide for seven years on a guilty plea, with a lesser sentence if the judge found exceptional circumstances.
Mr. Furniss argued the mandatory sentences should not apply because Foster was originally charged occurred before November 2005. He said Foster had left the rifles where he had them because he did not want to trouble the police.
“The court accepts that the period of three months after Ivan was far from normal, with many public services compromised. I believe I can take judicial notice of the fact that the immediate weeks after the occurrence of Hurricane Ivan were very difficult and stressful for most Caymanians and residents alike,” Justice Quin said.
He said the guns were not loaded, there was no evidence they had been used or that the defendant intended to use them. Foster had no previous convictions for firearms or for violence.
“I commend Crown Counsel for her efforts in trying to discover how this case has taken eight years to come before this court. Ms Hutchinson, quite properly, concedes that there are exceptional circumstances which, when taken into account, would persuade the court to depart from the minimum sentence should it apply,” the judge said.
He referred to a Court of Appeal decision in which exceptional circumstances were found and he adopted that court’s sentence of 12 months imprisonment. But since Foster had already spent time in custody, and since he had waited more than seven years for the case to come before the Grand Court, Justice Quin said he would suspend the sentence for two years.
He said: “I sincerely hope this will be a unique case which will never be repeated, because all persons found in unlawful possession of unlicensed firearms must be subject to the 2008 law and the minimum sentence of at least seven years following a guilty plea.”