Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 18 of 2018

Joseph v. Regina (CR-AP 18 of 2018) [2019] TCACA 11 (25 September 2019);

Law report citations
Media neutral citation
[2019] TCACA 11
Coram
Mottley, P
Stollmeyer, JA
Adderley, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL APPEAL                                                                                                                                  CR-AP 18/2018

BETWEEN

JIMKELLY JOSEPH

APPELLANT

AND

REGINA

 

RESPONDENT

BEFORE: Sir Elliott Mottley,                               President

The Hon. Mr. Justice Stollmeyer,                       Justice of Appeal

The Hon. Mr. Justice Adderley,                          Justice of Appeal

Appearances:

Tim Prudhoe and Willin Belliard for the Appellant

Eugene Otuonye, Q.C. the Director of Public Prosecutions and Clement Joseph, Senior Public

Prosecutor for the Crown

Heard:   March 4 and 21 2019

Delivered: September 25, 2019

Sir Elliott Mottley, P

1.             Three issues arise in this appeal for the determination of the Court. The first issue is an application by the appellant to adduce fresh evidence on appeal. The second issue deals with the refusal of the Chief Justice Madam Justice Ramsay-Hale to allow the appellant Jim Kelly Joseph to change his plea of guilty to a plea of not guilty. The third issue is whether in imposing the minimum sentence of 7 years the Chief Justice failed to find that exceptional circumstances relating to the offence and offender existed.

2.             On 4 April 2018, acting on information, the police executed a search warrant at the residence of the appellant. At the commencement of the search, the appellant told Sgt. John of the Police Force that he had found a firearm in the past, but he had gotten rid of it and he did not have any firearm in his possession. The police found a black bag on a shelf in a closet. A firearm was concealed in the bag. On being shown the firearm by police constable Parris who had found it, the appellant said, “I believe that is it- that's the firearm I found.” The appellant was cautioned by the police and he said, “that's the firearm I told you about that I found”. Police also searched a car belonging to the appellant and a spent shell was discovered in a bag which was in the car.

3.             The appellant was charged with the offences of keeping a firearm without being the holder of a firearms licence and ammunition without being the holder of a firearm licence.

4.             Section 3 of the Firearms Ordinance Cap 18.09 provide as follows:

“[3] (1) No person (other than a licensed gunsmith in the course of his trade) shall keep, carry, discharge or use any firearm or ammunition unless he is the holder of a firearm licence with respect to such firearm, or in case of ammunition he is the holder of a licence for a firearm which takes that ammunition.

(2) No person licensed under subsection (1) shall keep a greater number of ammunition than is specified in his licence.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction on indictment to a term of imprisonment of not less than seven years but not exceeding fifteen years and a fine without limit. (Amended by Ord. 28 of 2010)”

5.             On 1 June 2018, there was a sufficiency hearing before the Chief Justice who determined that there was a prima facie case to be heard. The matter was adjourned until 22 June 2018 for a Plea and Directions hearing. At his plea and direction hearing before the Chief Justice, the appellant on arraignment pleaded guilty to both counts in the indictment.

6.             Prior to the appellant's pleading guilty, his counsel Ms. Lara Maroof drafted a document known as a Basis of Plea of guilty on behalf of the appellant. This document was forwarded to counsel for the Crown. At the hearing when counsel was to make a mitigation on his behalf, counsel for the Crown indicated that the Crown did not accept the contents of the basis of the plea. The Chief Justice determined that a Newton hearing was necessary and adjourned the matter until 2 July 2018.

7.             In the Basis of Plea which is referred to above the appellant stated that he would plead guilty to the counts on indictment CR 18/18 namely count 1, keeping a Firearm contrary to s.3(1) of the Firearms Ordinance and count 2. Keeping Ammunition contrary to s.3(1) of the Firearms Ordinance. He stated the basis of his plea was as follows:

(i) I came into possession of the firearm referred to in Count 1 and the ammunition referred to in Count 2 on the 17 March 2018.

(ii) Both items were handed to me by a 17 year old boy, Mikenson Obin, whom I mentor through the Boxing Federation. The young man came to me on the 17 March 2018 with the firearm and ammunition in a backpack and disclosed that he had found both items and picked them up. He came to me as his mentor to seek help and advice.

(iii) After lengthy discussion and questioning of Mikenson, I took possession of the firearm and ammunition which were at all times separate from each other. I was of the view that it was better for me to have possession and control of the firearm rather than Mikenson. I placed the firearm in a secreted place in my apartment to ensure no one could have access to it. I intended to take the firearm and ammunition to the police station with Mikenson at the earliest opportunity and allow him to explain how he came to have them.

(iv) At that time, I was heavily involved in my project, the Hammer Boxing and Fitness Gym in Blue Hills. I was spending every waking minute and all my energy in building the gym to ensure that we could meet the planned opening deadline of the 31 March 2018. I was continuing to work full-time at Amanyara Resort as the Wellness Director. I therefore kept putting off the appointment with Mikenson to take the firearm to the police station.

(v) Unfortunately, by 4 April 2018 when the police came to my home, I was still in possession of the said firearm and ammunition having failed to deliver them to the police.

(vi) I had no intention of using the firearm or ammunition to harm or threaten anybody. Both were secured in a place where no one was likely to gain access or be put at risk. The firearm and magazine were separate. My intention was to surrender both to the police station. I failed to do so in a timely manner.

(vii) I plead guilty to both counts on this basis.

8.             However, a Notice of Change of attorney-at-law was filed on behalf of the appellant indicating that Ms. Maroof no longer represented the appellant. Mr. Ashwood Forbes who now represented the appellant, filed a Notice of the appellant's intention to apply to the Court to change his guilty plea to one of not guilty. The grounds on which the application was made were stated as follows:

(i) The applicant maintains his innocence on both counts.

(ii) Based on the letter sent to the Court dated 13 July 2018, the applicant seems to be coerced into pleading guilty when he did plead guilty to both charges.

(iii) Based on further correspondence to the Court it seems like the applicant and his Counsel relationship had broken-down irretrievable.

(iv) The applicant has a right to change his plea before sentencing is handed down.

(v) The applicant has a right to be tried by a jury of peers if he says he is not guilty of the charges that are levied against him.

(vi) Counsel is obliged on the instructions of his/her client and not bundle.

An Amended Application to vacate the guilty plea was filed on 1 August 2018 under the heading “Reasons why it is unjust for the guilty plea to remain.”

9.             At the hearing before the Chief Justice, the Chief Justice refused to grant leave for the appellant to change of plea.

10.          Before dealing with Ground 1 which deals with the refusal to allow the change of plea from guilty to not guilty, the Court will deal with the application by the appellant to call fresh evidence on the appeal.

11.          In the appellant's Skeleton Argument, the appellant sought leave of the Court to adduce fresh evidence in the form of three affidavits sworn on 24 January2019 by Mikenson Obin on 31 January 2019 by Wendy Pierce and on 17 January 2019 by Christopher Jennings respectively.

12.          Counsel for the appellant submitted that the appellant, pursuant to Rule 18 of the Court of Appeal Rules CAP 2.0., was seeking leave to adduce fresh evidence which was not available at the hearing of the Application to change his plea.

13.          Rule 18 of the Court of Appeal Rules provide inter alia:

“18. (1) In relation to an appeal the court shall have all the powers and duties as to amendment and otherwise of the Supreme Court.

(2) The court shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner:

Provided that in the case of an appeal from a judgment after trial or hearing of any case or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

14.          In the State v Sankar Sudama (1970) 16 WIR 476 the Court of Appeal of Guyana held: “ that before fresh evidence is permitted to be called it must [be shown] that such evidence was not a true sense available at the trial; and, if it was, a reasonable explanation existed for not adducing it a the trial; there must be sufficient relevance as would make the request meaningful; and the evidence must appear likely to be credible.”

15.          In considering the application to adduce fresh evidence, the Court must be satisfied that the evidence contained in the affidavits sought to be admitted was not available at the hearing before the Chief Justice. There is nothing before the Court stating that the evidence contained in the affidavit was not available at the trial. Nor was any explanation given for not calling those witnesses. Counsel who appeared at the applications before the Chief Justice had clearly directed his mind to the calling of evidence even if not the witnesses which he is seeking to call. In the Amended Application to vacate the plea, counsel stated under the subheading “Evidence” that the appellant intended to apply to the court for permission to have the firearm independently tested. In addition, counsel indicated that he wanted to call as witnesses Dakeisha Bassattt, Robert Greenwood and David Williams.

16.          The Court is of the opinion that the appellant has not satisfy the requirements set out in Sudama's case before fresh evidence is admitted into evidence. Consequently, the application to adduce fresh evidence is refused by the Court.

17.          The Amended Grounds of Appeal relating to the refusal to allow the appellant to change his plea of guilty to a plea of not guilty although dated 20 November 2018, were filed by Mr. Prudue on 18 February 2019. These ground alleged that the Chief Justice failed to take any or any proper account of:

(a)           the guilty plea being involuntary, even in the context of legal representation;

(b)           the prompt indication of a wish to withdraw guilty plea;

(c)           the possibility of hearing from the appellant an oath as to the circumstances of the guilty plea;

(d)           the grant of an application for change of plea (“guilty” to “not guilty”) being not dependent on prospects or lack thereof of an early trial;

(e)           the fact that representation by counsel at the time of entry of a guilty plea is not determinative or conclusive of a subsequent application to change plea;

(f)            the possibility that the appellant's own counsel may have misled him in respect of the entry of a guilty plea; and

(g)           the need to exercise the Court's discretion as to the change of plea judiciously and the decision to reject (the application to change to a “not guilty” plea must not be unreasonable.)

18.          At the hearing of the Application for leave to vacate the plea of guilty before the Chief Justice, it was contended that the mandatory minimum sentence was harsh, even though the judge has a discretion when sentencing not to impose the mandatory minimum of 7 years imprisonment if there are exceptional circumstances. It was stated that the appellant did not have a criminal record. It was further stated that on behalf of the appellant that he explicitly told his former attorney-at-law, Ms. Maroof, that he did not want to plead guilty to the charge as was outlined in various correspondence sent to the court. It was also stated that the appellant was not, and is not the sole occupant and user of the said premises where the gun was allegedly discovered. Counsel contended that by pleading guilty, the appellant had been deprived of his rights of a trial by jury. The appellant alleged that the guilty plea was made pursuant to legal advice but that he mis-understood the implications of that advice. The appellant submitted that his plea was ‘equivocal' as he did not accept a major element in relation to the charge i.e. that he was the sole occupier of the property from which the ‘firearm' was found.

19.          Alternatively, it was submitted on behalf of the appellant that when the court does not accept that the plea was equivocal, the court has the discretion to allow a defendant to change a plea of guilty to one of not guilty any time up to sentencing. It was contended that this was a residual discretion if the guilty plea was unequivocal.

20.          In support of this submission, counsel relied on Regina v Hafeez Sheikh et al [2002] EWCA Crim 492, where Mantell LJ at para 16 of the judgment stated:

“It is well accepted that quite apart, from the cases where the plea of guilty is equivocal or ambiguous, the court retains the residual discretion to allow the withdrawal of a guilty plea where not to do so might be work an injustice. Examples might be where a Defendant has been misinformed about the nature of the charge or the availability of a defence no where he has been put under pressure to plead guilty in circumstances where he is not truly admitting guilt. It is not possible to attempt a comprehensive catalogue of the circumstances in which the discretion might be exercised.”

21.          Counsel for the appellant further submitted that the appellant had demonstrated that justice required that the withdrawal of the guilty pleas should be permitted in all the circumstances. The Court was invited to take extraneous circumstances into account outside of the strict interpretation of equivocality. Counsel argued that the appellant is at liberty to change his plea from guilty to not guilty any time before sentence is passed on him. He contended that justice required that in all the circumstances, the plea should be vacated. It was a discretion for the judge to exercise and allow such a change of plea. Counsel submitted that it was undue pressure on the part of the appellant's former attorney which caused the appellant to plead guilty when he was first arraigned.

22.          Mr. Forbes submitted that where a defendant tells his attorney that he is not guilty, any plea tendered thereafter is an equivocal plea. He submitted, further, that if it is not a defendant's genuine intention to plead guilty and he is convinced by counsel that his best course of action is to plead guilty, then he is not pleading guilty of his own volition but pleading guilty under duress. If his plea was not voluntary, then he should be permitted to withdraw it.

23.          The appellant in an earlier appeal had sworn an affidavit dated 14 August 2018 in which he stated what Ms. Maroof his counsel had said to him and what he had said to her. In other words, he disclosed communication passing between himself and his counsel. In the view of the Court, by so doing, the appellant waived the client/lawyer privilege. Allegations were made which reflected adversely on counsel and the Court considered that, in the circumstances, the interest of justice required an affidavit from counsel to answer the allegations of the appellant has set out in his affidavit.

24.          In her affidavit sworn on 14 February 2019, Ms. Maroof stated on 4 April 2018 she was instructed by the appellant to act on his behalf in relation to his arrest for keeping a firearm and ammunition contrary to section 3 of the Firearms Ordinance. She attended at the police headquarters in Providenciales on behalf of the appellant.

25.          On the 27 April 2018, Ms. Maroof stated she had a meeting with the appellant at her office. At that meeting, the appellant gave her instructions in relation to the charges brought against him. These instructions amounted to an admission of both offences with which he had been charged but with mitigating circumstances. The appellant instructed her that the firearm came to be in his possession after one of the youngsters whom he mentored found the firearm and brought it to him. The young man, Mikenson Obin, was scared and unsure what to do with it and so handed it over to the appellant. This has not been disputed by the prosecution. The appellant said that he told the young man that would dispose of the firearm safely. The appellant put the firearm out of harm's way by secreting it at his home; he intended to hand it over to the police as soon as reasonably possible. The appellant stated that the then got caught up with all the arrangements for setting up his Boxing Gym and his other responsibilities and simply did not get around to delivering the firearm to the police prior to the execution of the search warrant. The appellant stated that he only kept the firearm in order to hand it over to the police.

26.          The appellant asked Ms. Maroof at that time to write to the Director of Public Prosecutions and seek to persuade him not to proceed with the case against him by outlining all the relevant circumstances, including evidence of his extensive community work and work with young people. Ms. Maroof subsequently made written representations to the Director of Public Prosecutions, but the Director indicated she would be proceeding with the prosecution.

27.          As stated previously, on the 1 June 2018, Ms. Maroof represented the appellant at his sufficiency hearing in the Supreme Court before the Chief Justice. The Court found that there was a prima facie case and the case was adjourned for a Pea and Directions hearing on the 22 June 2018.

28.          On the 7 June 2018, Ms. Maroof had a further meeting with the appellant at her office. At that time, she went through the appellant's instructions once again and in more detail. The appellant's instructions remained the same as he had previously provided. Ms. Maroof advised him that based on his instructions he was guilty of the offences charged. At no stage did the appellant indicate that he was unsure of his plea or that he wanted to plead not guilty or that he believed that he was not guilty. While the appellant indicated that he had decided to plea guilty, he stated that a long custodial sentence would be devastating for him. Ms. Maroof advised him that he could submit a basis of plea outlining his account as to how he came to be in possession of the firearm and ammunition. She advised him as to the process at the Plea and Directions hearing including that the Prosecution would indicate whether they accepted the basis of plea or not. Ms. Maroof explained that if the prosecution did not accept the basis of the plea, the judge would decide whether it was necessary to have a Newton hearing. She also explained that a Newton hearing is held by the court where an accused pleaded guilty to an offence but the prosecution did not agree or accept the basis on which the plea was made. Counsel also advised the appellant that they should prepare character references and other evidence to attest to his community work. She advised him that there was an arguable case for “exceptional circumstances” which would allow the court to exercise the discretion and not to impose the mandatory minimum sentence of 7 year of imprisonment. She emphasized to him that there were no guarantees and the decision as to whether his basis of plea was accepted and indeed whether exceptional circumstances applied in this case was a decision which the Chief Justice had to make.

29.          Ms. Maroof was adamant that she did not suggest that the appellant plead guilty. She stated that at no time did she inform the appellant that he could receive a sentence of community service or probation. She also stated that at all times she advised him, that even if the court was persuaded that exceptional circumstances existed, it was highly likely that he would still receive a term of imprisonment.

30.          Ms. Maroof stated that following their meeting on 7 June 2018, she drafted a Basis of Plea on behalf of the appellant for him to review. On 18 June 2018 the appellant responded confirming that he was content with the basis of plea but highlighting one error in the name of the young man who handed the firearm to him. On the 21 June 2018, the appellant signed three copies of the basis of plea.

31.          She stated that on 22 June 2018, she represented the appellant at his Plea and Directions hearing before the Chief Justice. The appellant was arraigned and pleaded guilty to both counts on the Information. Ms. Maroof submitted to the court the signed Basis of Plea on behalf of the appellant. At that stage, Mr. Clement Joseph on behalf of the Crown, indicated that the Crown did not accept the contents of the Basis of Plea. The Chief Justice ruled that a Newton hearing was necessary, and the matter was adjourned until the 18 July 2018.

32.          Ms. Maroof stated that during the week of 9 July 2018, the appellant made contact with her by phone and indicated that he was considering the option of changing his plea to not guilty. She stated further that this was the first time that the appellant had raised any concern with regard to his plea of guilty. The appellant indicated that he was extremely stressed and that he could not take the risk of being given a 7 year sentence of imprisonment or indeed any prison time. Ms. Maroof indicated to him that there were very limited grounds upon which a defendant would be allowed to withdraw their guilty plea. She outlined each of the grounds and informed him that it did not appear that any of those grounds applied in his case. She further informed him that she would not be able to make such an application on his behalf and, if he was determined to seek to vacate his plea, he would have to instruct a new attorney-at-law. A meeting was scheduled for Friday 13 July 2018 to discuss the issue in greater detail.

33.          On the 13 July 2018 a letter was delivered to Ms. Maroof's office from the appellant in which he indicated that he no longer wished Ms. Maroof to represent him and that he was seeking another counsel to represent him at the hearing.

34.          On the 18 July 2018, she attended the scheduled hearing at the Supreme Court before the Chief Justice. The appellant attended the hearing along with his new counsel, Mr. Ashwood Forbes. Ms. Maroof informed the court that she was formally withdrawing from the case.

35.          In her ruling on the application by the appellant for leave to change his plea, the Chief Justice indicated that in Archbold the starting point in determining an application to withdraw a guilty plea is to determine whether the guilty plea is equivocal. The Chief Justice determined that the plea was clear, unambiguous and in writing signed by the appellant with an invitation to the court to hold a Newton Hearing to determine the Basis of his Plea. The Chief Justice indicated that there was nothing in the material before the court which suggested that the appellant had a defence to which he did not advert to when he entered his plea. In addition, the Chief Justice found that there was nothing before which suggested that the appellant did not appreciate the element of the offence.

36.          The Chief Justice indicated that the appellant had suggested that counsel who appeared at the hearing when he entered his plea of guilty had improperly pressured him to enter a plea of guilty. The Chief Justice referred to the letter dated 13 July from the appellant to the Snr. Deputy Registrar in which it was stated that he was “intimidated by how much time I could face if it goes to trial aside from the time I could do if I plead guilty.” The Chief Justice was of the view that “the plea was tendered in consideration of advice that he might received a lesser sentence. She concluded that “the length of the sentence likely to be imposed has clearly weighed on the Defendant since her entered his plea.

37.          At para 28 of her Ruling, Chief Justice stated:

“There is no possibility of a mistake. The Defendant has legal advice. There are only two elements of the offence: keeping a firearm/ammunition, knowing it is a firearm/ammunition. His plea is to both elements of the offence. The Basis of Plea does not suggest a defence to the charge which justice requires he be allowed to advance at a trial.”

38. In dismissing the application, the Chief Justice concluded:

“In the instance case, however, none of the materials before the Court raised any doubt whether the Defendant's confession of guilt was intended and made with a full understanding of the elements of the offences of keeping a firearm and ammunition. The arguments that have been made on his behalf suggest that change of plea is sought largely out a concern with respect to the length of the sentence that the Defendant now faces.”

39.          In Rex v Plumber [1902] 2 K.B. 339 it was stated that “the Court had power to allow the appellant to withdraw his plea of guilty. There cannot be any doubt that the Court had such power at any time before, though not after judgment.”

40.          In Regina v Hafeez Sheikh et al [2004] EWCA Crim 492, Mantell L.J. said:

“[16] It is well accepted that quite apart, from the cases where the plea of guilty is equivocal or ambiguous, the court retains the residual discretion to allow the withdrawal of a guilty plea where not to do so might be work an injustice. Examples might be where a Defendant has been misinformed about the nature of the charge or the availability of a defence no where he has been put under pressure to plead guilty in circumstances where he is not truly admitting guilt. It is not possible to attempt a comprehensive catalogue of the circumstances in which the discretion might be exercised.

Commonly, however, it is reserved for cases where there is doubt that the plea represents a genuine acknowledgment of guilt. As said by Lord Morris of Borth-y- Gest in the leading case of S (an infant) v The Recorder of Manchester (1971) AC 481 at 501:

“Guilt might be proved by evidence. But also it may be confessed. The court will, however, have a great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made.”

41.          For the reasons set out below, the Court is satisfied that the plea of guilty by the appellant was a genuine admission of his guilt. In Revitt et al v Director of Public Prosecutions [2006] EWHC 2266 (Admin) the question referred to the High Court by way of case stated was whether the decision made by the justices was correct in deciding not to allow the defendants to vacate their plea of guilty in relation to the allegation of dangerous driving. The justices had refused to allow the defendants to withdraw pleas of guilty which they entered to charges of dangerous driving.

42.          Lord Phillips of Wotrth Matravers CJ, identified the issue in the appeal as whether the practice in relation to guilty plea is compatible with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedom and whether the defendants received a fair trial in accordance with the requirement of Article 6.

43.          The provision of section 6of the Constitution of the Turks and Caicos Island are similar in scope. Lord Phillips concluded that a defendant who pleaded guilty without a trial is said to be proven guilty according to law by his own confession. The Chief Justice referred to the existence of safeguards to avoid the possibility of abuse. He identified one of the safeguards as being the discretion that a court has to permit a plea of guilty to be withdrawn.

44.          Lord Phillips stated that the correct analysis in respect of the application to vacate a plea of guilty was:

“Where a defendant make an unequivocal plea of guilty whIch the court accepts, the defendant is thereupon ‘proved guilty according to law' within the meaning of article 6(2). The presumption of innocence ceases to apply and he can be sentenced on the basis that he has been proved guilty. This accords with the approach of the House of Lords in the leading case of S (An Infant) v Recorder of Manchester [1971] AC 481”.

45.          Lord Phillips pointed out that a guilty plea can only form a “conviction and bring to an end the presumption of innocence where it is unequivocal. If the plea is equivocal, the plea must be treated as a play” not guilty.

46. Lord Phillips, having posed the question of what principles govern the allowance an application to withdraw a guilty plea, answered it in this way. His Lordship said:

“[16] What principles should govern allowing an application to withdraw a guilty plea? In S (An Infant) v Recorder of Manchester [1971] AC 481, 507 Lord Upjohn observed that the discretionary power was one which should “only be exercised in clear cases and very sparingly”. That guidance is not of great practical assistance. Better general guidance appears from the comments of Lord Morris of Borth-y- Gest, at 501:

“The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made.”

47.          His Lordship observed that, if after an unequivocal plea of guilty it becomes apparent that the defendant did not appreciate the element of the offence to which he was pleading guilty, then it is likely to be appropriate to permit him to withdraw his plea. His Lordship made reference to the case of R v South Tameside Magistrate exp Rowland [1983] 3 All ER 689, 692 per Glidewell LJ. His Lordship however warned that such a situation would be rare since it was unlikely to arise where the defendant was represented and where he was not it was the duty of the court to make sure that the nature of the offence was made clear to him before a plea of guilty is accepted.

48.          As stated previously, the court has jurisdiction to allow a defendant to vacate his plea of guilty. A defendant who seeks to vacate a plea of guilty has the burden of demonstrating that justice requires that the plea should be vacated. In his Basis of Plea dated 21 June 2018 and signed by the appellant, it is clear that he was aware that the possession of a firearm without authority was indeed contrary to law. The young man who handed the gun to the appellant did so in circumstances which suggest that he was aware of the dangers he faced if he kept the gun in his possession. He sought the assistance of the appellant in getting rid of the gun. The appellant was a mentor to the young and in the circumstances took possession with the intention of handing over the firearm to the police. However, there was a delay which he explained... That he was aware of the criminal nature of possessing the firearm. This may be inferred from his conduct in placing the firearm “in a secret place” in his apartment. He had indicated that he would be pleading guilty to the counts in the indictments. Nothing in the Basis of Plea indicated that the was uncertain of the elements of the offence. He explained the circumstances under which he came into possession of the firearm.

49.          Nothing before the Court that suggestted that the appellant had any defence to the changes under the Firearms Ordinance to which he did not refer when he entered his plea so as to bring his case within paragraph 16 of R v Sheikh and Others. Further there is nothing to suggest that the appellant did not appreciate the elements of the offence to bring the matter within the ambit of Revitt's case. The Court agrees with the observation of Lord Philipps CJ in the Revitt case it would be rare for a plea to be entered in ignorance of the elements of an offence in the case of a defendant who is represented by counsel.

50.          The affidavit of Ms. Maroof contains a detailed explanation of what took place prior to the appellant entering his plea of guilty. Nothing contained in the affidavit creates any doubt that the appellant was unaware of the elements of the offence. Nothing suggest that he was forced by his counsel or any other person to plea guilty. What appears from the documents is that after pleading guilty, the realization that he would face a mandatory minimum term of imprisonment of seven years was a likely motivation for the change of plea. Nothing in the material before the Court suggest that the appellant did not appreciate the elements of the offence. From the Basis of Plea and the affidavit of Ms. Maroof, it is clear that the appellant had been properly advised by his counsel.

51.          Lord Phillips CJ stated in Revitt, that on an application to vacate a guilty plea:

“19. The onus lies on a party seeking to vacate a guilty plea to demonstrate that justice requires that this should be permitted. As Kennedy LJ said in Maguire (R v Bournemouth Justices ex parte Maguire [1997] COD 21 DC):

“...the court will be slow to allow such a change of plea unless there is some obvious reason why it is appropriate in the circumstances to allow it.

In the opinion of the Court, the appellant has not discharged that burden in that the Court is not satisfied that the appellant demonstrated that he has suffered an injustice in not being permitted to vacate his guilty plea. The appeal on Ground 1 is rejected.

52.          We now turn to Ground 2 in which the appellant is seeking to appeal against the imposition of the mandatory minimum sentence of 7 years in prison.

53.          The issue for determination is whether the Chief Justice was correct in holding that no exceptional circumstances exist which would have allowed the court not to sentence the appellant to the mandatory minimum sentence of 7 years' imprisonment.

Section 30 of the Firearms Ordinance Cap 18.09 provides:

“[30] The forfeiture and penalties imposed by this Ordinance shall not be incurred by

(i)            any person in the naval, military or air force, or volunteer service of Her Majesty, or volunteer fire brigade or in the police force or in the prison service or revenue service of the Islands keeping, carrying, or using any firearm in the performance of his duties or when engaged in target practice;

(ii)           any licensed gunsmith or his servant, carrying firearms in the ordinary course of the trade of gunsmith; and

(iii)         any person carrying a firearm belonging to a licensed person by order or request of and for the use of such licensed person only, provided that the person carrying the firearm, upon the request of any revenue or police officer or occupier of any land upon which the firearm has been carried, gives his true name and address and also the true name and address of his employer or such licensee.”

54.          The provision of section 5 of the Firearms Act 1968 of the United Kingdom is similar to section 30 of the Firearm Ordinance of the Turks and Caicos Islands. In R v Zakir Rehman and Gary Dominic Wood [2005] EWCA Crim 2056, Lord Woolf of Barnes, Chief Justice dealt with “the application and interpretation of the mandatory minimum sentencing provision in respect of offences committed contrary to S5 of the Firearms Act 1968.”

55.          In the course of the judgment, Lord Woolf made a number of observations. At para 12, his Lordship stated:

“In the case of the Firearm Act the focus is different. So far as we can determine the rationale of Parliament, 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 be 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 the offender, unless they pass the exceptional threshold to which the section refers. 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. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence.”

56.          The policy which led the Parliament in England to amend the Firearm Act to provide for mandatory minimum sentence applies with equal force to the reason why the Legislature in the Turks and Caicos Island amended the provision of the Firearm Ordinance to provide for a mandatory for a minimum of seven years imprisonment.

57.          Lord Woolf continued at para 14:

“[14]...It is to be noted, as already pointed out, that part of the context is that section 5 of the Firearms Act creates an absolute offence. Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences. However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him. The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere.”

58.          As stated by Lord Woolf, what is intended is that, in that the absence of exceptional circumstances, the Court must impose a deterrent sentence. In determining this appeal, this Court must be mindful that it is the opinion of the judge that is critical in determining whether exceptional circumstances exist. A Court of Appeal is only entitled to intervene if the judge is wrong in identifying exceptional circumstance when they do not exist or clearly wrong in nor identifying them when they do exist.

59.          In passing sentence, Chief Justice Ramsay-Hale said:

“On the question of whether there are exceptional circumstances. I do not consider that his exceptional character, which I accept, or the innocent way in which we came into possession of the firearm, justify a finding of exceptional circumstance.

So in the basis of plea, which I accepted, you asserted that you received the firearm from one of the boys that you mentored, with the intention of turning it over to the police as soon as possible. I accept that your busy schedule intervened, and as a result the firearm remained in your possession where it was later discovered by the police.

Because you are telling me what I have just told you that I have accepted that you are a man of exceptional character who came into the possession of the firearm with no criminal intent. You didn't go find one to commit an offence. You kept it through ill-attention, didn't intend to keep it, but life overtook you. And that you had no intention of using it.

And so the question is then, whether your keeping it for one day or eighteen days, with whatever intention, does that amount to a special circumstances? The fact that you kept it rather than delivering to the police completes and constitutes the whole offence. And I think that there is no warrant to depart from the mandatory minimum sentence, because the danger, which is inherent in keeping the firearm, for whatever reason, is in your case is quite manifest.

Anyway the question really has been, and is, whether or not the - taking everything in the round, so taking your good character in the round, and considering your lack of criminal intention in receiving the firearm, and your lack of criminal intention in retaining it, whether or not those are exceptional circumstances, and I say they are not. The very—the danger, which the statue is aimed at covers precisely the circumstances.”

60.          Counsel for the appellant submitted that exceptional circumstances can be either with respect to the offence or the offender (section 30(2)(b)) and for which the appellant has the full benefit of the written Basis of Plea. So far as the offence itself was concerned, he submitted that no evidence that the gun was used and it is not a gun that has no lawful basis of use, such as sawn-off shotgun. Insofar as the offender was concerned, the appellant had the gun for the purpose of turning it over to the police on behalf of a young man who he mentored; he had no criminal record. These are the accepted reasons for the failure to turn over the gun.

61.          Counsel for the appellant also challenged the constitutionality of the mandatory sentence and submitted that the imposition of a Mandatory Minimum Sentence is incompatible with section 1 and section 3 of the Turks and Caicos Islands Constitution.

Section 1 and 3 of the Turks and Caicos Islands Constitution:

“Fundamental rights and freedoms of the individual

[1] Whereas every person in the Islands is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, without distinction of any kind, such as race, national or social origin, political or other opinion, colour, religion, language, creed, association with a national minority, property, sex, sexual orientation, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for his or her private and family life, the privacy of his or her home and other property and from deprivation of property save in the public interest and on payment of fair compensation, the subsequent provisions of this Part shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, and related rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said protected rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

Protection from inhuman treatment

[3] No person shall be subjected to torture or to inhuman or degrading treatment or punishment”

He stated that section 1 of the Constitution protects persons from the arbitrary and disproportionate deprivation of their liberty, while section 3 of the Constitution protects persons against inhumane or degrading treatment or punishment.

62.          Counsel stated that section 3 of the Constitution mirrors the European Convention on Human Rights. The effect of Section 3(1) of the Firearms Ordinance (as amended) prevents the imposition of a sentence that constitute inhumane and degrading treatment or punishment that contravenes Article 3 of the European Convention of Human Rights. He submitted that sentences which could result in arbitrary and disproportionate deprivation of liberty violates sections 1 and 3 of the Constitution when read together. Counsel submitted that it is not clear that the introduction of “exceptional circumstances” prevents the mandatory minimum sentence from offending the provisions of Section 3 Constitutional argument.

63.          The Director of Public Prosecution submitted, correctly, that whether exceptional circumstances existed under section 30 of the Firearms Ordinance, the Court of Appeal , in considering whether a different sentence ought to have been imposed had to be satisfied that “the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in identifying exceptional circumstances when they do exist.”

64.          The Director pointed out that this Court ought not to interfere with the imposition of a sentence under the provisions of the Firearms Ordinance, because it is the opinion of the sentencing court, in this case the Chief Justice, that is critical in determining what are the exceptional circumstances

65.          The Director submitted that the Chief Justice took note of the following mitigating factors:

(i) the appellant came into possession of the firearm because it was given to him by a young man whom he mentored; (ii) he intended to hand it over to the police but could not do so due to vigorous work schedule and other community activities; (iii) he did not do so until police came searching his house; (iv) the firearm was not tested and so was presumed not to have been used; (v) he was a person of exceptional character, never had previous conviction; (vi) several well-meaning citizens gave good testimonials of him.

66.          The Director stated during the plea in mitigation, the Chief Justice was alive to and endeavoured to bring out these mitigating factors as her dialogue with the counsel for the appellant clearly demonstrated.

67.          The Director stated that the appellant essentially contended that the imposition of a mandatory minimum sentence will constitute a violation of the appellant's rights guaranteed under sections 1 and 3 of the TCI Constitution as well as Art. 3 of the European Convention of Human Rights.

68.          In Rehman and Wood [2006] against section 51A of the UK Firearm Act 1968, which is similar to section 3 read together with section 30 of the Firearms Ordinance. Per Lord Wolf, Chief Justice stated:

“In our judgment, we do not regard this as being a situation where it is necessary to read the section down, relying on section 3 of the Human Rights Act 1998 so as to comply with the Convention. We consider that the words are clearly capable of being interpreted as complying with the Convention. This is an interpretation which is made easier by the fact that Parliament passed the provision as part of the 2003 CJA which was passed in the knowledge that the section had to comply with the Human Rights Act. Furthermore, it can be assumed that Parliament had the decision of Offen in mind when it selected the same language for the exception. There was a suggestion that in this case we might find it helpful to look at the statements of Ministers made both in Parliament and outside Parliament to assist us interpret the section. But in our judgment this is unnecessary and indeed would be inappropriate. It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence.”

69.          In August and Gabb v The Queen [2018] CCJ7 (AJ), Mr. Justice Saunders, speaking on the issue of whether the mandatory penalty of imprisonment is consistent with the Constitution of Belize, stated at para 135:

“[135] In my opinion, the separation of powers principle is implicated whenever Parliament prescribes a mandatory sentence. The Legislature has every right to establish maximum penalties for legislated offences or even to set a reasonable sentencing range within which judges retain flexibility. That responsibility is consistent with the separation of powers. Within such maximum penalty or reasonable sentencing range, however, judges should be entitled to return sentences they consider to be in keeping with the nature and circumstances of the offence, the history and characteristics of the offender and such other considerations as it is legitimate for them to weigh. For Parliament to eliminate all such discretion and decide for itself what is an appropriate sentence in each and every case is problematic. The court's sentencing responsibility is reduced to ‘rubber-stamping' the dictates of the Legislature in a realm the Constitution reserves for the judicial branch. This impairs the judicial process and compromises judicial legitimacy and independence.”

70.          In deciding whether the mandatory minimum sentence under section 30 of the Firearms Ordinance is unconstitutional, the Court is off the view that the question which this Court should ask itself is whether under the provisions of the section, the judge is entitled to return sentences which they consider to be in keeping with the nature and circumstances of the offence under section 30 for Firearm Ordinance having regard to the history and characteristics of the offender and such considerations as is legitimate for them to weigh in deciding whether exceptional circumstances exist.

71.          The Court is of the opinion that a discretion is given to the court to depart from the imposition of the mandatory minimum if the court considers that the exceptional circumstances both in relation to the offence and the offender exist.

72.          We have reviewed a number of cases, but the Court is aware that each case is facts specific. In R v Harrison [2006] EWCA Crim 345 the appellant had been found in possession of a firearm which he stated belonged to his niece's boyfriend. The Court stated:

“[15] In the present case it is not challenged that the appellant was on his way to remove this handgun from circulation permanently when he was stopped. He was doing so on the very day that the gun and the ammunition had come into his possession. No doubt it would have been better for him, at least from one point of view, if he had gone straight to the police without more ado, but the reaction of the owner of the gun when he found out what the appellant had done makes it understandable why the appellant may well have felt reluctant so to do. There may in any case be circumstances where someone who unwillingly and unexpectedly finds himself with a prohibited firearm foisted upon him may feel impelled to dispose of it so it can never be used again, rather than involving himself in the upheaval and disturbance of a police inquiry. We are bound to observe, however, that anyone who chooses the latter course must be prepared to justify himself should his involvement with the weapon come to light.

[16] Looking at this case as a whole, we have come to the conclusion that there are in this case exceptional circumstances which allow the Court not to apply the full rigour of s.51A. In our judgment, the learned trial judge misdirected himself by focusing upon the one factor, namely the nature of the weapon, rather than taking an overall view of all the relevant aspects, including the way in which the appellant initially came into possession of the gun, how long he had had it, what he had done with it and what he intended to do with it. Having said that, however, as we indicate, the overall conduct of the appellant is not by any means beyond criticism. It is plain that he was well aware that what he was doing was wrong. “

73.          In R v Bowler [2007] EWCA Crim 2068, the appellant was found to be in possession of guns and ammunition which he said has been “dumped” at his premises three earlier. The applicant did not know by whom they had been dumped or why they had been dumped on his premises.

74.          The appellant pleaded guilty on the following written basis:

a.             the firearms and ammunition were dumped at the defendant's garage about three weeks prior to 14 August 2006

b.             defendant had immediately placed the firearms and ammunition in his safe;

c.             at no time were the firearms or ammunition used nor did the defendant intent to use either

d.             the defendant did not intend to have the possession of the firearm or ammunition to anybody else save the police when a firearm amnesty was in place.

75.          In giving judgment Openshaw J said:

“[13] It is clear that by imposing a five-year minimum term, Parliament has recognised the particular danger presented by the unlawful possession of prohibited firearms, and that such conduct must strongly be discouraged. The authorities make clear that in applying these provisions there is no list of circumstances, some of which can, and some of which cannot amount to exceptional circumstances. Whilst it is clear that rather more then just a substantial personal mitiga-tion is required, the court must look at all the relevant circumstances of the offence and of the offender and ask whether the imposition of the minimum term in the particular circumstances of the particular case is a disproportionate and arbitrary response to the danger presented by the unlawful possession of prohibited weapons.”

76.          Openshaw J concluded at para 14 of the judgment:

[14] Having reviewed the Recorder's decision in the light of all the circumstances, we are persuaded by Mr Cowley that there are here a number of unusual features, including the fact that the guns were “dumped” on him, to use the rather unattractive words of the basis of plea, that he kept them locked in a secure safe, that he eventually intended to hand them over to the police, but there was no evidence or even suggestion that he had any intent to use them for any ulterior criminal purpose, nor did he intend to hand them over to anyone else for such a purpose, nor because he kept them in a secure safe was there a real risk that they would fall into the hands of persons who might use them for such a purpose. There is also total absence of contact or association between the Appellant and known or suspected criminals, to which should be added that the strong mitigation of his previous good character, his plea, the low risk of re-offending and his obvious and genuine remorse. In all, we think that a five-year sentence would be so harsh as to amount to a disproportionate punishment, having regard to the dangers actually presented. We think therefore the cumulative effect of these many and diverse points is to amount to exceptional circumstances, which justify us in not imposing the minimum term.”

77.          In R v Ocran [2010] EWCA 1209 the appellant admitted knowing of the presence of firearms and silencer in her flat. She knew of their presence a few weeks before prior to her arrest but made no attempt to contact the police in relation to the firearm. In delivering the judgment Aikens LJ, said:

“[15]. We have considered very carefully the submissions of Miss Sharma. We have to note, first, the nature of the offences of which the appellant pleaded guilty; secondly, the fact that the appellant knew of the existence of these firearm in her flat for some period of time but did nothing about it; thirdly, she initially denied their existence to the police or her knowledge of their existence; fourthly, that it was only upon the second interview that she gave relevant information about the firearms and others that had access to her flat; fifthly, that although there is no doubt that the appellant's psychotic condition would have put her in a more vulnerable position, that makes her precisely the sort of person who comes within the provisions of section 51A. Lastly, we fully understand the difficulties that will arise for the appellant's young daughter as a result of the appellant's imprisonment, but we do not think that that of itself can sway us.

[16.] Looking at the matter overall, we have to ask, was the judge clearly wrong in not identifying "exceptional circumstances" when they do in fact exist? Our answer to that question has to be, looking at the matter as a whole and looking at all the factors as a whole, that the judge was not clearly wrong.

78.          In R v Boateng [2011] EWCA Crim 86, the appellant had pleaded guilty to possessing a prohibited firearm and two count of possession of ammunitions. There were found by the police in a bag in her flat when executing a search warrant. She admitted being in possession of the bag but denied knowing the items which were inside. She stated that the bag had been left at the flat two days earlier by a friend whom she named. She had been told not to touch the bag which she did not do until she saw the police arriving. The judge was not satisfied that she had achieved knowledge of the contents of the bag. He was also not satisfied that she was involved with any firearm or ammunition.

79.          Mr. Justice Spencer in delivering the judgment of the Court, referred to the case of R v Lashari [2010] Crim LR 783 in which the Court held that where a defendant advanced exceptional circumstances in a firearm case the burden is on the Crown to disprove the truth of the defendant's assertion. In that case, the defendant had put into the trunk of his car, two bags he had found close to his car. One bag contained what looked like a gun. The defendant had deliberate put the bag in his car believing it contained a gun a kept it. Spencer J stated that it was implicated in the reasoning of the Court of Appeal that had he been unaware that there was a gun in the bag at all, the position might have been different.

80.          Mr. Justice Spencer concluded:

“[19] In the present case the appellant's criminality lay in being prepared to receive into her flat a bag which she suspected was somehow linked to crime. In doing so she acted at her peril but she did not know the bag contained firearms and ammunition. In our judgment there were exceptional circumstances, which, had the point been argued, would have entitled the judge not to impose the minimum five year sentence. It is clear that had the judge believed such a course was open to him he would have taken it.

[20] It follows that we are persuaded that it is proper to allow the appeal and to impose instead a determinate sentence consistent with the appellant's criminality.” 81. In Regina v Vaseen Manzoor [2013] EWCA Crim 537 the appellant pleaded guilty to possessing a prohibited firearm and ammunition without a firearm certificate. He was sentenced to five years imprisonment and two years' imprisonment. The appellant had pleaded guilty on the following basis:

81.          In Regina v Vaseen Manzoor [2013] EWCA Crim 537 the appellant pleaded guilty to possessing a prohibited firearm and ammunition without a firearm certificate. He was sentenced to five years imprisonment and two years' imprisonment. The appellant had pleaded guilty on the following basis:

(a)           The defendant found the gun and ammunition in a bag in his father's garden. He believes that someone had thrown the bag over the garden fence. He took the bag into the house and took the contents and put them on the top of his bedroom wardrobe out of harm's way. He intended to either hand the gun in together with the ammunition to the police or otherwise dispose of them.

(b)           The defendant never used or tried to use the gun himself. There is no evidence that the gun had been used by the defendant.

(c)           The defendant accepts paragraph 6 of the witness statement of Rob Barkham dated 13th June 2012.

(d)           The firearm and ammunition were not in the defendant's possession for use or for any criminal purpose.

(e)           There is no suggestion that the firearm had been used in crime at any time.

(f)            The firearm was unloaded.

(g)           The defendant co-operated fully with the police and on their attendance at his father's property drew their attention to the presence of the firearm in his wardrobe.”

82.          In her judgment, Madam Justice Davies said:

“[11] It is the appellant's case that, having accepted his account of when and how he come into possession of the firearm and accepted his intention in relation thereto, the judge erred in not finding exceptional circumstances such as to justify imposing a sentence less than the statutory minimum of five years. Specifically, it is contended that the logical consequences of the judge's findings at the Newton hearing were:

1)            The appellant had come into possession of the firearm by accident. A person or persons unknown had foisted the firearm on him. This was not a deliberate acquisition. In court today Mr. Hislop QC, who had presented the case with skill and clarity, described it as an innocent acquisition;

2)            The appellant was in possession of the firearm for just one week, a relatively short period of time;

3)            The appellant was in possession of the firearm with the sole intention either to hand it to the police or otherwise dispose of it in was that would prevent it being used again;

4)            The firearm was not safely useable with live ammunition.

5)            The appellant was co-operative at the point of search and seizure.

[12] It is the appellant's case that each of these circumstances is unusual. Particular reliance is placed upon the intention identified in point (3), it being significant that the intention behind the legislation is to deter possession and usage of potentially lethal weapons.

[13] In addition to these five identified findings, the appellant relies upon the following matters in support of the submission that the combination of all these renders the circumstances exceptional:

6)            There is no suggestion that the firearm had be used in any crime at any time;

7)            The firearm was unloaded;

8)            The appellant has no previous relevant previous convictions;

9)            The appellant pleaded guilty.”

83.          The judge reviewed a number of authorities including R v. Rehman (supra) and R v. Merrion (supra) and concluded that they emphasized the deterrent nature of section 51A of the Firearms Act, recognizing the need for caution, and stated that the Court was conscious of the narrow nature of the construction; nonetheless the Court considered that test of exceptional circumstance had been made out in that case.

84.          In Attorney General's Reference (No 115/2015) R v Greenfield [2016] ALL ER (D) 14, [2016] EWCA Crim 765, the Court of Appeal, Criminal Division where:

“The offender, G, received a police visit at her flat. She volunteered to the police officers, information unrelated to the police visit, in respect to a firearm which was being stored at her property. She stated that the firearm had belonged to a drug-dealer named 'Banks', who had been using her property as a drugs den, against her will. G was subsequently convicted of possession of a prohibited firearm, contrary to s 5(1)(aba) of the Firearms Act 1968 (the 1968 Act). In sentencing, the trial judge held that exceptional circumstances had existed, pursuant to s 51A(2) of the 1968 Act, to depart from the five-year mandatory minimum term... On behalf of the Attorney General, the sentence was referred to the Court of Appeal, Criminal Division.. The Attorney General submitted that the sentence had failed to reflect the culpability and harm of the offence and that exceptional circumstances had not existed to justify a departure from the mandatory five-year minimum term, pursuant to s 51A(2) of the 1968 Act.

85.          The court stated:

The court was conscious that the sentencing judge had also presided as the trial judge. He had therefore been well placed to assess the offence and the offender. However, Parliament had decreed that a mandatory five-year minimum term ought to be imposed for offences that contravened s 5(1)(aba) of the 1968 Act. The words 'exceptional circumstances' should not have been diluted. Sympathy for an offender would not have been sufficient. The circumstances of the case had not come close to being classed as 'exceptional'. The facts and circumstances were far too familiar. The only exceptional aspect of the case had been G's willingness to provide the name of the drug-dealer who had owned the firearm. Accordingly, the sentence had been unduly lenient.

The sentence would be quashed and substituted for the minimum statutory term of five years' imprisonment.

86.          This Court has identified the following circumstances to be relevant when considering whether exceptional circumstances exist.

(i)            The appellant come into possession of the firearm when he received it from a young man whom he mentored;

(ii)           When he received the firearm it was the intention of the appellant to hand it over to the police. He considered that it was better for him to have custody of the firearm instead of the young man who handed to him. From this it may be inferred that he was aware that possessing a gun without a licence was a criminal offence.

(iii)          He was in possession of the firearm for 18 days. He stated that because of his involvement with getting his gym completed, he had forgotten to turn it over to the police;

(iv)          He was in possession of the firearm for the sole purpose of turning over to the police.

(v)           The appellant was a person of previous good character.

(vi)          He was co-operative at the time when the police was executing the search warrant.

(vii)         The firearm was unloaded.

(viii)        There was no suggestion that the firearm had been used in any crime.

(ix)          The appellant was involved in community work.

87.          Having identified the exceptional circumstances, the question which the Court has to ask itself is whether the Chief Justice was clearly wrong in identifying the exceptional circumstances which she did or in not identifying other factors as amounting to exceptional circumstance.

88.          Whatever sympathy this Court may have for the appellant, the Court must be alert that such sympathy has no role in the decision of this Court. The Legislature of the Turks and Caicos Islands by enacting the amendment to section 30 of the Firearm Ordinance, clearly intended that any person who possessed a firearm must be imprisoned for a mandatory minimum period of seven years unless exceptional circumstances exist.

89.          In reaching its decision, the Court must have regard to the observation of Thomas LJ (as he then was) when giving the judgment of the court in Attorney General's Reference (No. 23 of 2009) (R v Merrion) [2010] 1 Cr App. R (S) 70 at p471 at [15]:

“Those who in any contravene the Firearms Act must for the good of society, whatever the consequences are to their family, expect to receive the minimum sentence from Parliament. Judges must not feel sorrow or sympathy for any offender. The protection of the public demands nothing less than the imposition of minimum sentences. It is only in exceptional circumstances of the kind that have occurred in this case, rare as it is, that the court can exercise a degree of mercy.”

90.          This Court must be mindful of the observation of Lord Woolf, Lord Chief Justice said in R v Rehman at para 4:

“[4] The weapons, with which we are concerned, are ones in relation to which Parliament by section 51A has signalled it was important that there should be imposed deterrent sentences. By "deterrent sentences" we mean sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider.”

91.          In R v Roberts (Mark) [2016] 2 Cr. App. R. (S.) 14 (2016) the Court of Appeal observed:

[19] It is well established that this court is a court of review. In R v A [1999] 1 Cr. App. R (S.) 52, Lord Bingham CJ made this clear at 56:

“The Court of Appeal Criminal Division is a court of review; its function is to review sentences imposed by courts at firs instance, not to conduct a sentencing exercise of its own from the beginning.”

[20] There is no basis for departing from the principle so clearly expressed by Lord Bingham. This court considers the material before the sentencing court and any further material admitted before the Court under well established principles. It considers whether the basis of that information the sentence was wrong in principle or manifestly excessive.

92.          The Court has dealt at length with this issue to ensure that it made clear to the public that the Legislature had determined that the mere possession of a firearm without more must carry a deterrent sentence of a mandatory minimum of 7 years in prison unless the court finds that exceptional circumstances exist either in relation to the offence or the offender. The Court does not consider that such exceptional circumstance exists in this case. For the reasons stated above the appeal is dismissed.

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Mottley, P.

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Stollmeyer, JA

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Adderley, JA