Court name
Supreme Court of Turks and Caicos Islands
Case number
CR 45 of 2019

Regina v. Aloysius Ebner (CR 45 of 2019) [2019] TCASC 3 (05 November 2019);

Law report citations
Media neutral citation
[2019] TCASC 3
Coram
Ramsay-Hale, CJ

CR 45/2019

 

IN THE SUPREME COURT

OF THE TURKS AND CAICOS ISLANDS

R v ALOYSIUS EBNER

POSSESSION OF FIREARMS AND AMMUNITION

BEFORE THE CHIEF JUSTICE, THE HON. MME JUSTICE MARGARET RAMSAY-HALE

Mrs. Angela Brooks Acting DPP for the Crown, Ms. Tameka Grant holding for sentence

Mr. Clayton Greene for the Defendant

HEARD ON THE 31ST OCTOBER 2019

 

 

SENTENCE NOTE

 

THE FACTS

1. The Defendant is a decorated US Marine, a Navy seal, who served two tours in Vietnam and received Bronze Stars for valour and a Purple Heart when he was injured in a blast in which he suffered shrapnel injuries to his back and face.

2. He is 73 years old and is on 80% disability. A monthly cheque from the US government is his sole source of income. He has only one living relative, a sister, who lives in New Jersey. He lived on his boat, the Lucky Strike, and the guns and ammunition with which he was found were part of his possessions which he carried aboard when he left the United States some 9 years ago to live aboard the Lucky Strike in the Dominican Republic.

3. He was travelling through the Turks and Caicos Islands on his way back to the United States to visit with his sister and receive some medical attention when he ran aground an uninhabited cay known as Big Sand Cay which was one of two rest stops he planned to make in the Islands. He was picked up and taken to Salt Cay and returned to the boat the following day intending to dispose of the firearms that were on board, as his boat was grounded. While the boat and the guns were for the time being secured, he was aware that he would no longer be able to take the firearms back to America. He loaded some of his possessions into the boat on which he had been taken to Big Sand Cay and, when the boat had reached deep water, he began disposing of firearms. He disposed of 7 rifles in this way before the boat was intercepted by the police. On that boat, the police recovered 7 pistols and a shotgun. He was then instructed along with the others to return to the Lucky Strike where the police boarded the boat and some 8,000 rounds of ammunition, with most being designed for use with the handguns, were recovered.

4. The defendant is an avid gun collector and gun sport enthusiast who says, in explanation for the thousands of rounds of ammunition in his possession, that he and his friends would have shooting parties on weekends, where they would shoot thousands of rounds at targets. None of this can be gainsaid by the Crown and I, therefore, accept it.

5. He says that the guns and ammunition were all legally obtained in the United States. Several American States do not require persons to hold a permit or licence to buy or possess firearms nor even to register them. It's part of the American Second Amendment right to bear arms, of which we can all take notice, which has sometimes devastating consequences, as we all see on the news. He had concealed carry permits for two of the guns which permits have expired, as the Crown pointed out, but that wouldn't render his possession unlawful as those permits, as I understand it, allow the weapons for which they are granted to be carried in a concealed manner on the license-holder's person. A person may still be lawfully in possession of the firearm even though he is no longer licensed to carry it in a concealed manner.

6. The defendant is an American citizen and his possession of the firearms and ammunition outside of the Turks and Caicos Islands seems to have been otherwise lawful, which is a matter which bears upon the disposal of this case, as does the absence of any intent to traffic in these guns and ammunition here. He intended to rest offshore an uninhabited Cay overnight before continuing north. Had he not run aground because of bad weather and his boat irreparably damaged, he would have continued on his way to Florida with his guns and ammunition securely stowed aboard his boat.

7. There is no absolute prohibition on guns and ammunitions of this class being brought into the Islands. The Ordinance does require, however, that a person who keeps firearms and ammunition must be licensed. If the person with the firearm is a transient who would be unable to obtain a licence, then the firearms must be surrendered to the police: see section 4 of the Ordinance.

8. If the person keeps a firearm without a licence, the section 3 of the Ordinance imposes a mandatory term of imprisonment.

 

THE LAW

9. In R v Rehman and Wood [2005] EWCA Crim 2056, the Court said at para 12 that,"The policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would become a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or of the offender unless they pass the exceptional threshold to which the section refers"

10. As the court goes on to note, however,

"This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of section 5 of the Firearms Act... [as] an offender may commit the offence without even realizing that he has done so. That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence."

11. The Court made the further observation that, absent special circumstances the courts will always impose deterrent sentences, noting however, at para 14 that,

"If an offender has no idea he is doing anything wrong, a deterrent sentence will have no deterrent effect on him."

THE PLEA IN MITIGATION

12. Mr. Greene, in his plea in mitigation, invites the Court to say that there are special circumstances in this case that would permit the Court to impose some other sentence than the mandatory minimum term of imprisonment.

13. The first is that the Defendant did not know he was doing anything wrong. He was a collector of firearms and the lawful owner of the guns and ammunition under the laws of the country where he acquired them. At the time of the offence, he was seeking to return home from the Dominican Republic and had, in common with many boaters who ply that route, planned a rest stop at an uninhabited cay. He had no intention of anchoring in any inhabited part of the Islands and there is no requirement to advise the authorities that he was resting at Big Sand Cay or that he had guns and ammunition in his possession.

14. The guns were securely stored in cases in the bilge of the vessel and hidden under suitcases and winter clothing and were all unloaded.

15. Having run aground, he realized his boat would have to be abandoned. He therefore returned to it, as soon as he was able to the next day, with the intention of destroying the guns and ammunition on board by disposing of them in the sea to avoid them falling into anyone else's possession. This, Mr. Greene says, was entirely responsible. At all other times, the boat was securely locked. He didn't speak of the guns and ammunitions to anyone, as he didn't want to risk third parties becoming aware of their presence on the boat.

16. Mr. Greene also relies on the defendant's positive good character. He is a man of 73 years who had served his country with distinction in the Navy and has no previous convictions.

17. Counsel reminds the Court that the Court should take a holistic view of all the circumstances in determining whether or not special circumstances exist.

18. In R v Avis and others [1998] 1 Cr. App. R(S) 178, on which Mr. Green also relies mitigation, the Court set out the sentencing considerations to be borne in mind in the case of firearm offences.

19. Mr. Greene submits that all the questions posed in Avis must be answered in the Defendant's favour:

What sort of weapon was involved?

None of the weapons where prohibited and they were all stored unloaded and separately from the ammunition.

What if any use has been made of the firearm?

They were either collector's items or guns for recreational use at gun ranges and otherwise.

With what intention to did the defendant possess the firearms?

The firearms were stored on the vessel for carriage home to the United States.

What is the defendant's record?

He is of good character and a decorated war veteran.

20. Mr. Greene also relies on the case of R v Zhekov, [2013] EWCA Crim 1656 where a Bulgarian lorry driver was found in the UK in possession of a disguised firearm. It was a non-lethal weapon which it was legal to obtain, possess and use in Bulgaria and the Defendant was ignorant that the firearm was unlawful in the UK. He was in the UK for a lawful purpose and his stay was just the time it took to deliver his load and the stun gun, as it was, was not used.

21. On appeal, it was held that the Judge was correct to find that there were special circumstances but wrong to find that a sentence of immediate custody was required. The appeal was allowed and the custodial sentence was reduced and suspended.

22. Mr. Greene relies on the similarities between the facts in Zhekov and this case, in that it was lawful for the defendant to obtain, possess and use the firearms in the United States where he had acquired them, he had no intention of using the firearms here in the TCI but only intended to rest overnight on his boat on his journey North anchored next to an isolated and uninhabited cay.

23. In addition to his advanced years, on which the defence rely as special circumstances, Mr. Greene highlights the defendant's medical condition, which includes recent eye surgery which requires ongoing care to avoid infection which could have deleterious consequences.

24. The defendant is in poor health, suffering a residual disability from injuries sustained in the Vietnam war including muscular degeneration and attendant physical weakness on the left side of his body and limited hearing which would make a prison sentence unusually onerous.

25. He urges the Court to impose a conditional discharge.

SENTENCE

26. 

In considering what the appropriate disposal of this matter should be, I remind myself of the dictum of the Lord Chief Justice in Rehman and Wood. Section 3 of the Firearms Ordinance creates

 an absolute offence which is intended to ensure that, absent exceptional circumstances, the courts will always impose deterrent sentences.

27.        I am satisfied that the circumstances in which these offences were committed were exceptional. These exceptional circumstances are that,

1.The defendant lawfully acquired and possessed those guns and ammunition for his own use in the United States.

2. He is a retired Navy seal who was a firearms specialist in the Vietnam war and is now an avid collector of guns and a gun sporting enthusiast, which accounts for his being in possession of what could fairly be described as an arsenal of 15 guns and 8000 rounds of ammunition.

3. He did not possess the guns with any criminal intent there was no danger that the defendant would have used the guns for any criminal purpose.

4. He was lawfully travelling through our territorial waters, as boaters are allowed innocent passage to travel between the Dominican Republic and the United States and it is usual for them to anchor off of Big Sand Cay.

It is not contended for the Crown that the passage of a foreign boat carrying guns and ammunition is prejudicial to the peace, good order or security of the Islands and, therefore, in non-innocent passage. His possession of the firearms and ammunition at sea was ipso facto lawful.

5. The offence was committed when the boat ran aground due to circumstances beyond the defendant's control.

The defendant failed to report to the Commissioner or indeed, report to anyone in authority, that there was a veritable arsenal on board his boat, as he was required to by section 4 of the Ordinance but breach of that section doesn't trigger the imposition of the mandatory sentence. In addition, the relevant count was left on file by the Crown so I do not take this failure into account in sentencing the defendant.

6. He did not appreciate that, having run aground on a deserted cay, his possession of the firearms and ammunition constituted an offence within the Turks and Caicos Islands.

This is not a defence but, as the Court in Rehman v Wood observed, if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect on him and such ignorance may justify a departure from the mandatory minimum sentence.

7. Once the boat was grounded and the guns and ammunition could no longer be removed from the Islands in the manner the defendant intended, the defendant was astute to conceal the presence of the firearms and ammunition from the persons who rescued him and later acted to eliminate the risk that they posed by throwing them into the ocean, not because he considered his possession of them was unlawful, but because he appreciated he risk that they now posed if they fell into the wrong hands.

I note that the risk he sought to eliminate is precisely the risk the Ordinance is aimed at, which is of the firearms going into circulation. I take into account that, although the Cay is uninhabited, the guns and ammunition may have fallen into the hands of fishermen who stumbled across the beached boat and from there found their way into the wider community. That risk, though, was not great and the firearms and ammunition remained on the boat for only a day.

28. Having decided that there are exceptional circumstances that justify the Court in departing from the mandatory minimum sentence prescribed by the Ordinance, the sentence is now at large. Although his plea of guilt is not a matter the Court can take into account as a reason for departing from the mandatory minimum sentence, his guilty plea falls to be considered now, along with all the other circumstances of the case,  in determining what the sentence of the Court should be.

29. I also take into account that the defendant is a man of good character who served with distinction in the Vietnam War, was decorated for bravery and received a Purple Heart for being injured in combat.

30. Finally, I take into account his age, his medical condition and his physical condition. These, when taken together, do, in my judgment, militate against the imposition of a sentence of immediate custody in the absence of a statutory requirement that I impose one. I do not wish to be seen as setting any precedent and would make it clear that, in the absence of exceptional circumstances, neither the defendant's age nor his apparent ill-health would be grounds for not imposing the statutory minimum term of 7 years, as they do not themselves constitute exceptional circumstances: see Lord Justice Treacy in Attorney- General's Reference No 82 of 2012 in re Robert Downes.

31. 

In the Zhekov matter, the Court imposed a suspended sentence but there it seems to me likely that the lorry driver would return to the UK with cargo at some other date and that the suspended sentence would be a deterrent. Here, such a sentence would be symbolic, and not deterrent, as the defendant is a foreigner who is unlikely to return to, much less re-offend within, the Turks and Caicos Islands.

32. Having considered the matter in the round, I consider that a fine is commensurate with the defendant's offending. I am mindful of the defendant's status as a retiree who lives on a disability cheque provided by the US government and take that into account also in imposing a fine of $20,0001to be paid forthwith. Failing payment, the defendant will serve 12 months in default. The firearms and ammunition are forfeit to the Crown to be destroyed.

DATED 5 NOVEMBER 2019

CHIEF JUSTICE