Powell loses firearm appeal

No exceptional circumstance to reduce mandatory seven-year sentence

The Court of Appeal on Monday affirmed the sentence of seven years imposed upon Michael Hugh Powell earlier this year for possession of an unlicensed firearm.

In dismissing the appeal, court president Sir John Chadwick said, “It’s impossible not to have sympathy for the appellant, who has created a personal disaster for himself and his family.”

Seven years is the mandatory minimum sentence for a guilty plea to such a firearm charge; the only exception is if the judge is of the opinion there are exceptional circumstances relating to the offence or to the offender.

Defence attorney Trevor Burke argued that the exceptional circumstances in this case related to Powell, whom he described as being of exemplary character, with an excellent work history, glowing character references and a record of having assisted the police in previous incidents.

Justice Chadwick said the fact that Powell had not merely kept out of trouble but had been a useful, valuable member of society was not an exceptional circumstance.

What was unusual about the case, he observed earlier, was the “extraordinary stupidity” the appellant had displayed in taking possession of the gun, a loaded .22-calibre Longhorn revolver.

As reported previously, Powell was a linesman with Caribbean Utilities Company, working in the Prospect area last September when he went into the bush to relieve himself. He found the gun there under a crate. He said he left it in place, but went back that night and took it, subsequently hiding it in his bedroom. Police subsequently received information and obtained a search warrant. At his home, on 19 November, Powell showed them where the gun was hidden.

Mr. Burke said Powell was genuinely convinced he was doing something good – keeping the gun safe and out of criminal hands until an amnesty came around and he could turn it in. He told the court Powell had attempted to contact a particular police officer about the gun, but learned that the officer had gone to Canada.

Justice Chadwick said the problem was that Powell chose to take possession of the gun. “Why on earth didn’t he just phone police and say, ‘There’s a gun in the bush and I can take you to it?’”

Mr. Burke agreed, “Had he done so, we wouldn’t be here.”

Crown prosecutor Candia James told the court that Cayman’s legislature had introduced the mandatory minimum sentence to provide deterrence. An individual’s exemplary character only goes toward mitigation, she said – to help the court determine how far over the minimum the sentence should go.

In announcing the court’s decision, Justice Chadwick referred to a previous case dealt with several years ago by the two other members of the current court, Justice Elliot Mottley and Justice Ian Forte.

They said it was the opinion of the sentencing court that was critical as to what constituted exceptional circumstances, so the Court of Appeal would not interfere unless that judge was clearly wrong in identifying exceptional circumstances when they did not exist or in not identifying them when they did exist.

In Powell’s case, they could not say that the sentencing judge was clearly wrong. The appeal was therefore dismissed.

Mr. Burke was instructed by attorney Ben Tonner.

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