An American tourist was ordered to pay $13,000 in fines and costs on Friday after pleading guilty to importing a .22 revolver loaded with five rounds of ammunition.
Daniel Hischer, 62, said he had brought the gun with him for protection as he had been the victim of an attempted murder in the United States.
He entered his pleas on Thursday before Magistrate Kirsty-Ann Gunn. He sat in the dock wringing his hands as senior Crown counsel Candia James and defense attorney Anthony Akiwumi made their submissions on the facts and pertinent law. On Friday, when the magistrate asked what factors would push the sentence over the custody threshold and then adjourned to consider her decision, Mr. Hischer put his hands to his head and wept.
The importation occurred on Saturday, Jan. 6, when Mr. Hischer arrived in Cayman with his wife and other relatives for a family holiday. They stayed in East End and “had a fabulous time,” Mr. Akiwumi reported. They were scheduled to leave the island Saturday, Jan. 13, on a flight straight back to Minneapolis, Minnesota.
Ms. James reported what happened at the airport then. The defendant’s luggage was screened and what appeared to be a small revolver was observed. The suitcase was sent for further checking and the handgun was recovered. Customs officers were called to deal with the matter.
When questioned, Mr. Hischer said he knew the firearm was in the suitcase before he traveled. He had obtained the gun after he was the victim of an attempted murder.
Mr. Akiwumi explained that in 2016 Mr. Hischer was the victim of an “appalling unprovoked attack.” He was watching a festival outside his home when a man unknown to him approached and slashed him across the throat, within a millimeter of his carotid artery. The man was charged but the matter has not yet been resolved. Mr. Hischer, who has used guns since he was 15, felt more secure with the revolver.
In Cayman, he never took the gun out of the suitcase, Mr. Hischer told authorities. His wife had filled out the customs declaration and signed it, so he had never read it and she did not know he had the gun.
Ms. James said she was satisfied from documentation produced that Mr. Hischer had no previous convictions and he was authorized to carry a firearm in his home jurisdiction.
This was his first trip outside the U.S. other than a cruise around the Caribbean. He did not declare the gun when he came here because he did not know it was illegal in this country, Ms. James concluded.
Mr. Akiwumi amplified that belief, telling the court, “The idea that it was a problem to have a firearm was a shocking surprise to him …. [He had] a lack of appreciation that the freedom in the United States to carry arms doesn’t extend elsewhere.”
The attorney said Mr. Hischer had previously traveled to Texas with his gun in his suitcase and it remained there until this trip.
He suggested that the airline on which Mr. Hischer had traveled should bear some responsibility. “How is it in 2018 with all the security checks we have to go through when we travel internationally, an individual is able to check in luggage with a lethal weapon? … You can’t even take toothpaste more than three ounces, but you can check in a firearm?” he queried.
Mr. Akiwumi submitted some 30 references that described Mr. Hischer as honorable, upstanding, trustworthy and a good neighbor.
He and Ms. James agreed on recent precedents in Summary Court involving visitors with guns: two cases involved fines of $2,000 and $8,000 respectively. Mr. Akiwumi said these sentences accorded with the principle of exceptional circumstances. Otherwise, the mandatory minimum sentence would be seven years.
Both counsel commented on a case that went to the Court of Appeal: an island resident legally purchased an air gun in the U.S. and brought it undetected onto the island, not knowing he needed a permit. When he found out he needed a license, he did not get one immediately; he was seen using the gun to shoot vermin before he obtained a license. The high court reduced his prison sentence from two years to one year.
In passing sentence, the magistrate referred to similarities and differences in that case and Mr. Hischer. Mr. Hischer had a permit in Minnesota and did not know he needed a license in Cayman. The differences were that Mr. Hischer did not use the gun in Cayman and, more importantly, he did not intend that the gun should remain here. An aggravating feature was that the gun was loaded and a big danger was that the gun could have fallen into the hands of someone who did have criminal intent, the magistrate said.
She rejected the idea that the airline should bear the greater responsibility: It is the responsibility of any visitors to advise themselves of the laws of the country they visit, she emphasized.
Overall, she found that Mr. Hischer’s lack of criminal intent, his intent to remove the gun from the island, his exemplary character and unlikelihood of further offending were cumulatively sufficient for her to find exceptional circumstances.
Being a visitor was not an exceptional circumstance, the magistrate said, but it should not be a reason for a harsher sentence, she indicated. If a resident were given a suspended sentence, it could be supervised, but such a sentence would lose punitive effect for someone not remaining on island and it might be construed that the visitor was going unpunished, which could undermine the very purpose of the sentencing regime, she said.
The magistrate concluded that a substantial financial penalty could have a deterrent effect. She therefore fined Mr. Hischer $10,000 for the gun, $2,500 for the bullets, and ordered him to pay $500 in costs. She recorded a conviction against him and ordered the weapon and ammunition forfeited for destruction.