Judge failed to give credit for mitigation after saying he would
Robert Lewis Terry, 26, had his prison sentence reduced from 12 years to nine years after a successful appeal on Friday.
Court of Appeal President Sir John Chadwick said the sentencing judge failed to consider matters favourable to Terry after indicating he would take them into account.
Terry was sentenced last December after pleading guilty to possession of an unlicensed firearm in an incident at the Caribbean Club in February 2011.
He and others had gone in two vehicles to the parking area of the Seven Mile Beach resort. Resort staff called police and took steps to prevent the vehicles from driving off after seeing some of the men apparently removing the licence plate of one of the vehicles (Caymanian Compass, 9 December).
The men ran from the scene, with Terry the last to leave. He was seen carrying a green bag that he threw into nearby bush. When found, the bag contained a pistol and eight nine-millimetre rounds.
Terry was charged with possession of the unlicensed firearms and aggravated criminal trespass. Before he came to trial, there was a hearing as to what the sentence might be if guilty pleas were entered. Justice Alexander Henderson indicated a sentence of 16 to 18 years with a discount to 12 years for a guilty plea.
At the sentencing hearing, the judge was presented with mitigating material, which he said he would take into account. However, in pronouncing sentence, he said that the sentence would be 16 years except for the guilty plea. Giving a 25 per cent discount for that, he arrived at 12 years. Attorney Lucy Organ argued against that sentence in the Court of Appeal. Crown Counsel Candia James responded.
After conferring with Justice Elliot Mottley and Justice Abdulai Conteh, the president indicated the court’s acceptance of the assertion that Terry had the gun in his possession only a short time. Ms Organ had specified that this was when Terry picked the gun off the seat of the vehicle until he threw it into the bush.
In the court’s view the proper starting point was 13 to 14 years, with credit for mitigation taking the sentence to 12 years. Applying the 25 per cent discount for the guilty plea, the sentence arrived at was nine years.
In reducing a sentence last year, the Court of Appeal set out the process by which sentences should be determined and explained to the defendant.
When a defendant pleads guilty, the proper course for a judge to take is to ask himself what the sentence would be if the matter had gone to trial and the verdict was guilty. He should take into account aggravating and mitigating factors and decide on the appropriate sentence for a not guilty plea. Then he should ask himself what discount should be given for the guilty plea, the high court ruled (Compass, 28 September 2011).