A decade-long sentence was “clearly unlawful” for possession of unlicensed ammunition, Justice Michael Wood said after hearing a recent appeal on behalf of a woman who received a 10-year jail term on the basis that it was the mandatory minimum.
Justice Wood heard arguments from defense attorney Margeta Facey-Clarke in June; he dismissed the appeal against conviction, but allowed the appeal against sentence.
He substituted a sentence of three months for possession of four rounds of ammunition, but made it consecutive to a three-month sentence for possessing ganja with intent to supply. The effect was a total sentence of six months. The defendant, Kimesha Walters, had been in custody 14 months. She had pleaded guilty to the ganja charge, but not guilty to the ammunition.
The definition of firearm in the Firearms Law 2008 includes “any ammunition capable of being used in any firearm.”
The section dealing with mandatory minimum sentences, however, specifically refers to machine guns, sub-machine guns, rifles, shotguns, “or any other lethal barrelled weapon from which any shot, bullet or other missile can be discharged.” Ammunition by itself is not in this list, Ms. Facey-Clarke pointed out.
Therefore, 10 years for four rounds of ammunition “is unknown to law and is an illegal sentence,” she submitted.
Crown counsel Scott Wainwright conceded that the 10-year minimum did not apply to ammunition, but he opposed the appeal against conviction.
Justice Wood agreed that Magistrate Grace Donalds had correctly identified and applied the burden and standard of proof. She had considered and rejected the idea that the defendant’s DNA could be on the bullets because of secondary transfer, and there was other evidence supporting the DNA evidence.
The judge’s order and the counsels’ written submissions were made public on Wednesday, Sept. 13.
That was just in time to serve as an authority in the sentencing of Jay Calvert Ebanks, who was scheduled for sentencing on Thursday, Sept. 14.
On Aug. 25, a jury found Ebanks not guilty of possessing an unlicensed firearm with two rounds of ammunition in it. Police obtained a search warrant and on Aug. 25, 2016, found the loaded gun in the toilet tank in Ebanks’s mother’s bedroom suite. Another man’s DNA was found on the gun, but not Ebanks’s. Police also found 10 bullets in Ebanks’s bedroom. They were of a different caliber and would not have fit the gun; he said he had found them while walking his dog and he pleaded guilty.
Ebanks pleaded guilty on Feb. 28, 2017, to having possession of the bullets without a license.
After the not guilty verdict for possession of the gun, he was still kept in custody because he had not been sentenced for the bullets.
On Thursday, Mr. Wainwright drew Justice Charles Quin’s attention to the ruling of Justice Wood. He also pointed out that Ebanks was entitled to credit for his guilty plea. He said Ebanks’s offense had crossed the custody threshold, but he had been in custody since his arrest.
Defense attorney Laurence Aiolfi suggested that Ebanks “has served his sentence several times over.”
Justice Quin said he wanted to give a written decision because this was an important case.
He initially remanded Ebanks in continued custody until Monday morning, but after further submissions by Mr. Aiolfi, the judge agreed to give Ebanks bail until sentencing.