Magistrate wants firearm facts

Sentencing postponed to see if BB gun is lethal barrelled or not

A man who pleaded guilty in March to possession of an unlicensed air pistol had his sentencing put off again because Magistrate Kirsty-Ann Gunn wants to know more about the firearm than either the crown or defense attorneys have been able to tell her. 

Her specific question is – Is the gun lethal barrelled? The case is scheduled to return to Summary Court on July 2. 

Grayson Dwayne McLean admitted finding the gun some time between April and July in 2011 while he was looking for whelks. He said he intended to turn it in but did not do so immediately. He put it inside an air-conditioning unit, where another member of the household found it and put it elsewhere. Police recovered the gun when they went to the residence on another matter. 

Last week, the magistrate summed up the information she has been given so far. 

The air pistol was checked by Allen Greenspan, a certified firearm examiner in the U.S. He examined the .177 Daisy Powerline model 93 BB gun, which contained a BB clip with approximately 15 copper-coated BBs. He found it to be in good operable condition and he test-fired it using a CO2 (carbon dioxide) cartridge. 

According to the manufacturer’s literature, that model is capable of obtaining speeds of up to 400 feet per second. 

Mr. Greenspan noted that this is sufficient velocity to cause serious injury and possible death should an individual be struck by a pellet. He said medical studies have indicated that projectiles with velocities of 332 feet per second are capable of perforating skin and penetrating organs. 

Crown counsel Tricia Hutchinson explained that in order to establish that this particular gun was lethal barrelled, the velocity of the weapon would have to be measured. This was not done because Mr. Greenspan did not have the equipment to measure velocity at the time this gun was tested. He has purchased the necessary equipment since then. 

Given that the defendant had pleaded guilty and the case was three years old, the crown decided to have the matter disposed of without velocity testing. 

Defense counsel Clyde Allen agreed, saying that whether the gun was lethal barrelled or not would not materially affect sentence, given that the magistrate was being asked to consider the section of the Firearms Law that deals with exceptional circumstances of the offense and/or the offender.  

Mr. Allen said it was an accidental finding of an air pistol by a man of exceptional character who lacked criminal intent. He said his client’s intention to hand it in had been thwarted by the actions of another member of the household. A social inquiry report showed a very low risk of re-offending. 

But the magistrate herself posed a question: Should the court sentence on an artificial basis due to an absence of evidence where the evidence relates to an important fact and can be readily ascertained? 

A sentencing judge must do justice, she pointed out. So far as is possible, an offender should be sentenced on the basis which accurately reflects the facts of the case. Confirmation that the gun is or is not lethal barrelled will give both the defendant and the general public certainty as to facts, the magistrate said, and different sentencing considerations will apply. 

McLean first appeared in court in May 2012. He initially pleaded not guilty and his trial date was set, but then there were legal arguments. In February this year, the magistrate was advised that the crown and defense had agreed to draft an agreed basis of plea. The magistrate said she was not supplied with that agreed basis of plea until May 5. Any acceptance of a basis of plea is considered conditional until approved by the judge, she explained.  

She ordered that the matter be set down for a special hearing in which Mr. Greenspan could give further evidence. On hearing the evidence, she said she would apply the law. 

The magistrate adjourned the matter until July 2.