Torry Javier Powery-Monterroso may have had an unlicensed firearm in his hand for only a minute, but the Cayman Islands Court of Appeal considered that minute in the context of what else had happened in the early hours of March 25, 2016.
Mr. Powery, who will be 21 in June, appeared before the court on Thursday to appeal his sentence of eight years imprisonment, which he received last year after pleading guilty to possession of an unlicensed handgun with six rounds of ammunition in it.
Attorney Clyde Allen submitted that the sentencing judge should have considered the brief time Mr. Powery had the gun as an “exceptional circumstance.” The mandatory minimum sentence for possessing an unlicensed firearm is seven years unless the court finds some exceptional factor that can raise or lower the sentence.
Deputy Director of Public Prosecutions Patrick Moran agreed that, in this case, Mr. Powery had the gun in his hand “for one minute at the most.”
The facts as outlined to the sentencing judge agreed that Mr. Powery had been in a van being driven by another man. Around 2 a.m., police received a report of two men with a firearm driving around the School Road/Rock Hole area in a white van. Officers responding to the call saw the vehicle on Edward Street, heading toward Shedden Road. They attempted to stop it by means of blue lights and siren, but the vehicle continued. As police drove alongside, the van door opened. One of the officers recognized Mr. Powery and saw that he was carrying a silver handgun. Mr. Powery jumped from the vehicle while it was still moving; he stumbled but then ran off. The officer lost sight of him for a few seconds, but then found him and arrested him. He no longer had the gun.
A search team was called in but nothing was found. However, the two officers who had first responded continued the search and around 6:24 a.m., they found a shiny silver pistol in dense undergrowth behind the property where Mr. Powery had run. It was a semi-automatic double-action loaded with six 9mm bullets.
Remanded in custody, he pleaded guilty in July, 2016. One account Mr. Powery gave was that he was not aware of the gun until it was shoved at him by the driver when the police tried to stop the van. In another account he was aware of the driver brandishing the gun and driving around and making threats against someone he had been in an altercation with.
He explained that “there was a lot of drama going on” and he had been very intoxicated the night of the incident. After talking to a lawyer, he thought he would come to court and give evidence, but “I didn’t know what would happen to me at the end of the day …. I didn’t know if that would land me in a bigger situation.”
Justice Sir George Newman delivered the court’s decision after consulting with the other two judges, Sir John Goldring and Sir Richard Field. He noted it was as a result of the gun being handed to Mr. Powery that he came into physical possession of it and bolted from the vehicle and disposed of it. By the time he was arrested he did not have the gun nor did he inform police where it was.
But that “short photo cameo” of what happened had to be placed in a wider context, he said. Mr. Powery had assisted the driver by accompanying him; when arrested, at least he should have been prepared to indicate where he had disposed of the gun.
“In our judgment it is putting too much weight on a very selective aspect of a course of conduct that falls square within the mischief that the legislation is designed and aiming to cover. And that is – that those in possession of guns and ammunition should realize that, notwithstanding a very short period of possession, the very moment from which they have knowledge that that is the dilemma or position they are in, it is incumbent upon them to face up to the responsibility that they have and they should do everything they can to prevent an armed weapon from falling into the hands of those who would use it for criminal purposes.”
Justice Newman endorsed what Mr. Moran had said earlier – if you dispose of a gun in a residential area there is a risk it could be found by a young child and there could be terrible consequences. The court commended the officers who had spent a long time searching for the gun.
In this context, possession for a short period ran counter to the legislation and the mandatory sentence was designed to deter it.
The court reduced the sentence from eight years to seven because of concern that the sentencing judge was not aware of the full facts as they were presented to the appeals court.