Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 3 of 2019

Guesta v. Regina (CR-AP 3 of 2019) [2020] TCACA 3 (30 January 2020);

Law report citations
Media neutral citation
[2020] TCACA 3
Coram
Mottley, P
Adderley, JA
Hamel-Smith, JA

IN THE COURT OF APPEAL

THE TURKS AND CAICOS ISLANDS                                                                                                     CR-AP 3/2019

BETWEEN

ALEXANDER CUESTA APPELLANT

AND

REGINA                                                                                                                                                      RESPONDENT

Before:

The Hon Mr. Justice Sir Elliott Mottley                                                        President

The Hon. Mr. Justice Adderley,                                                                    Justice of Appeal

The Hon. Mr. Justice Hamel-Smith,                                                             Justice of Appeal

Appearances:-

Ms. S. Mair of F Chambers for the Appellant

Ms. L. Williams of the Office of Director of Public Prosecutions for the Respondent

Heard:                 3rd and 25th September, 2019

Delivered: 30th January, 2020

Reasons for Decision

Adderley, JA

[1].          On 3 September 2019 we allowed the appeal of the Appellant against sentence. We quashed the sentence of 8 1/2 years imprisonment imposed by the trial judge and promised to give our reasons and well as to substitute the appropriate sentence at a later date. We now do so.

THE FACTS

[2].          The Appellant pleaded guilty to two counts on an indictment: the first count of keeping a firearm and the second count keeping ammunition, ten (10) rounds of 9mm ammunition, without being the holder of a Firearm Users Licence contrary to section 3(1) of the Firearm Ordinance.

[3].          He was initially charged with a count 1 of conspiracy to rob but no evidence was offered by the Crown on that charge and as the Court recorded an acquittal on that count.

[4].          The agreed facts outlined before the court are set out in the following paragraphs.

[5].          On the morning of Friday 30 September 2016, shortly after 8:30 am, the Manager of Elite Gaming Gary lee mead (55Yrs) attended the premises known as Slots ‘O' Fun on Airport Road. Providenciales to collect the previous evening's takings from the establishment's machines etc. Mr. Mead collected the same and exited the building with a Guinness box that contained cash. Upon approaching his motor vehicle he was approached by two males, who robbed him of the funds contained in the Guinness box as well as his licensed firearm. He was shot multiple times resulting in his death.

[6].          The police were summoned to the scene and an investigation later commenced. During these enquiries the police were led to the Appellant who was later interviewed under caution. Though not forthcoming in his initial interview he subsequently on Thursday November 3, 2016 while in Police custody at the Grace Bay Police Station indicated to Acting Inspector David Wilson that he would be willing to take the police to the location of the firearms used to kill Gary Mead and the gun taken from Gary Mead during the robbery.

[7].          The Appellant along with other police officers including Acting Inspector David Wilson later departed the Grace Bay Police Station. On the direction of the Appellant all parties went to a bushy area in Dock Yard not far from where the Appellant lived and he pointed to a yellow jug that also contained plastic bags located amongst garbage. The Appellant then told the officers that the guns were in the jug. He also pointed out a cactus plant and said that originally the guns along with a Guinness Box containing some money had been in the location before he moved them.

[8].          Officers also found that one of the firearms contained three (3) rounds of 9mm ammunition whilst the other contained seven rounds.

[9].          The Scenes of Crime Officers were directed to that area; where they photographed the scene and the recovered firearms. The firearms recovered were i) a black and silver 9 mm firearm bearing serial number 00497 belonging to Gary Mead (deceased) and (ii) a black Ruger Prescott-A-USA bearing serial number 321-15057.

[10].        The Appellant was further interviewed and later charged with the offences before the court.

[11].        The offence took place on 2 November 2016 and he was charged on 3 November 2016. Since then he has been in custody. His trial was set down for May 2019. He pleaded guilty on 27 March 2019 to the two offences and was sentenced on that date.

[12].        The defendant did not plead guilty to count 1, conspiracy to rob, and the Crown led no evidence relating to this. Therefore a not guilty verdict was entered on that count.

DISCUSSION

[13].        Before discussing the grounds supporting the ground of appeal, let us examine how the trial judge arrived at the sentence.

[14].        This must all be considered in the context that the role of an appellant court is not to interfere with the sentence which is the subject matter of an appeal merely because the members of the Court might have passed a different sentence. The trial judge has discretion in what punishment to administer on particular facts within the limits of the law. As Hilberry J correctly stated in R v Ball [1951] 35 Cr App Rep 164 at 164. “It is only if the sentence is excessive or inadequate to such an extent as to satisfy this court that when it was passed there was a failure to apply the right principles, then the Court will interfere”.

[15].        In Gardiner v R Criminal appeal No 16 of 2016, Weekes, JA in this Court summarized principles which should guide the sentencing judge in jurisdictions such as the Turks and Caicos where there are no sentencing guidelines. She commended the approach taken in Aguilera1 from Trinidad and Tobago which also had no sentencing guidelines. In this jurisdiction depending on the trial judge, reliance is sometimes placed on the United Kingdom's sentencing guidelines; other times the judge relies on his own experience and local authorities with similar facts. As this Court warned in Gardiner (per Weekes JA at paragraph 22) when determining the starting point "...Prevalence of the offence would be considered at this stage and this is one of the factors that must be treated with care before adopting the standard of a foreign jurisdiction”.

[16].        At the sentencing hearing the learned judge relied on Isaac Gardiner v R, Rv Avis, and the Queen v Sheen and Sheen (2011) EWCA Crim 2461. Applying the principles of those authorities he made these remarks:

“This court has referred itself to the cases provided by counsel and also other cases within the region on firearms and considered the combine[sic] effect of the case of the Queen v Avis and also the Queen v Sheen and Sheen in which it stated that the sentencing court should ask itself six questions:

1).What sort of weapon was involved; possession of a firearm which has no lawful use such as a sawn off shotgun is more serious than possessing a firearm capable of lawful use.

2).What use, if any, was made of the firearm? The more nefarious the use the greater the need for deterrence reflected in the starting point above the minimum

3) With what intention, if any, did the defendant possess the firearm?

4) What is the defendant's record?

5) Where was the firearm discharged, and who and how many were exposed to danger by its use, and

6) Was there any injury or damage caused by its discharge, and if so, how serious was it?

1Aguilera et al v The State Crim App Nos 5,5,7,8 of 2015

[17].        In summary the approach urged in Gardiner was to first identify the seriousness of the offence to obtain a starting point for the sentence. This may be arrived at by the use of suitable sentencing guidelines which give ranges of sentences for the offence, or where no suitable guidelines are used or available by local or jurisdictional case law authority from which such ranges can be deduced. Secondly, adjust the sentence up or down in this range based on the aggravating factors and mitigating factors of the offence being considered to identify the starting point. Thirdly, identify the aggravating and mitigation factors applicable to the offender and adjust the sentence upwards or downwards accordingly. Fourthly, give credit for a guilty plea and where with the guilty plea was made as early as possible give a discount of fifty percent of the sentence arrived at, but less depending on how early the plea was made. Finally full credit must be given for all time spent on remand to arrive at the actual time remaining for the defendant to complete his sentence.

[18].        In relying on Gardiner the trial Judge first decided on a starting point for the sentence. He did not make use of the United Kingdom Sentencing guidelines. Nevertheless, those guidelines contain a useful definition of “starting point as quoted in Gardiner: "... the position within a category range from which to start calculating the provisional sentence. Once the starting point is established the court should then consider aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range”. First the judge identified the need for a deterrent sentence. With no sentencing guidelines in this jurisdiction, he stated that he relied on the cases provided by counsel and other cases in the Caribbean region on firearms, without specifying them, with which he was aware and considered the combined effect of them.

[19].        He recited generally the kind of aggravating factors a judge should take into account in setting a starting point. He said that these factors “included generally” the fact that a real weapon and ammunition was involved, the firearm is unlicensed, there is damage or injury caused, multiple shots were fired in a public place, there are those who have deliberate and intentional plan to possess a gun and there is a clear intention that the firearm would be used to cause fear. He then stated that not all of the above factors applied to the current case. He did not specify which factors he thought applied in this case and which ones did not, but after stating that there were no mitigating factors pertaining to the offence except that the firearm and ammunition were found, decided on a starting point of 9 years imprisonment.

[20].        Having decided on the starting point of 9 years imprisonment taking into consideration the seriousness of the offence generally, the trial judge then condescended to the aggravating and mitigating factors in this particular case. The aggravating factors to which he referred included that the firearm and ammunition were all real; it was used in a robbery in which someone lost their life and was then hidden.

[21].        Based on that he added 2 years to the starting point to arrive at a sentence of 11 years.

[22].        Next the trial judge examined the aggravating and mitigation factors peculiar to the offender. He found that there were no aggravating factors. The mitigating factors found were that he was an adult aged 26 of previous good character with no previous convictions, had not committed any offence while on bail, he admitted to the offence by pleading guilty, albeit not at the first opportunity. He also cooperated with the police in locating the gun which assisted them in identifying the shooter in the robbery and bringing him to justice. The trial judge discounted his sentence by 1 year for his cooperation. This reduced the sentence to 10 years. A further reduction of 15% for his guilty plea (instead of 1/3 for a guilty plea at the earliest possible opportunity) reduced the sentence to 8 years and 6 months.

THE ARGUMENTS IN SUPPORT OF THE APPEAL

[23].        The amended ground of appeal was that the sentence of 8 1/2 years imposed by the Learned Judge was manifestly excessive. It was supported by the following arguments:

1.             The learned judge erred in his reasoning in choosing the starting point of 9 years which was excessive. He stated that his reason was that the Turks and Caicos Islands have marked their disapproval of firearm offences by introducing a minimum sentence. Counsel argued that there was no reason for the Judge to further reflect the society's intolerance as this has already been reflected by Parliament in providing the mandatory minimum sentence of 5 years. In support of this she made reference to the statement of the Chief Justice in R v Quincy Thomas CR 65/2016 where she states obiter at paragraph 33:-

“The 5-year mandatory minimum for this offence is a response by the Legislature to the prevalence of firearms in these Islands and is intended to deter offenders.”

2.             He wrongly took into account as an aggravating factor the circumstances of the offence of robbery when the robbery trial had not yet proceeded and therefore it had not yet been proved in a court of law that the firearm was the same firearm that caused the injury. She submitted that the learned judge ought to have waited for the robbery trial to be completed before sentencing so that the necessary matters could have been proved in court.

3.             He wrongly took as an aggravating factor that the firearm was a real weapon and the ammunition was real and that it was unlicensed when those are already essential ingredients of the offence.

4.             He wrongly assessed as aggravating factors the damage or injury caused, the amount of shots fired and that it was in a public place when these had not yet been proved in court.

5.             He wrongly took into account that the Appellant intended to use the firearm when the firearm was found after the alleged offence of robbery, and there was no evidence that the Appellant intended to use the firearm. She referenced two authorities Attorney General's Reference Nos. 23 R v Bruce Anthony Lee [2008] EWCA Crim 1530 and R v Avis and others [1997] EWCA Crim 3423 where the circumstances were similar but more severe where the English court imposed sentences of 5 and 6 years respectively.

6.             He did not give sufficient weight to the mitigating factors of the offence and the personal circumstances of the Appellant, namely leading the police to the guns without which they may never have been found, and leading to the perpetrators who may never have been identified.

7.             While the trial judge noted that he had used the wrong mandatory minimum sentence of 7 years instead of 5 years, he did not correct the error to reflect it in his sentence

8.             He did not take into account that the Appellant was employed and contributing to the welfare of his family prior to pleading guilty, and he had arrangements for a ticket to the Dominican Republic to comply with the recommendation for deportation.

[24].        We shall deal with arguments supporting the grounds of appeal seriatim.

Arguments 1 and 7:

[25].        These complain about the starting point of 9 years imprisonment.

[26].        The Court gave helpful guidance on this at paragraph 20 of Gardiner where it said, per Weekes JA:

“When the term “starting point” is used, there must be amoung local courts a universal understanding of what considerations advise on its calculation. In seeking direction on the issue, the court of appeal of Trinidad of Tobago (a jurisdiction like this without sentencing guidelines) in the matter of Aguilera et al v The State Crim. App Nos 5,5,7,8 of 2015 adopted the position in R v Taukei Ridley and Roberts [2005] NZLR 372, a decision of the New Zealand Court of Appeal which stated” “ the term “starting point” in sentencing is the sentence which is appropriate when factors relative to the offending are taken into account, but excludes factors relative to the offender”.”

[27].        In deciding on the starting point the trial judge took what he considered to be the mandatory minimum of 7 years (in fact it ought to have been 5 years) and after taking into account the prevalence of the offence and the need for deterrence arrived at a starting point of 9 years. He did not identify any range of sentences. Had he expressly or impliedly linked the starting point to the minimum mandatory sentence as the middle of the range? We think this was implied. Prior to the amendment to the Firearms Ordinance on 31 March 2018 which increased the mandatory minimum to 7 years the mandatory minimum was 5 years which came into effect by the amendment to section 3 of the Firearms Ordinance by Ord. 28 of 2010. The maximum sentence was always 15 years. The trial judge's reference to the 7 years mandatory minimum sentence in relation to the starting point, and no mention of the maximum 15 years must have been deliberate. It is therefore a reasonable assumption that he related the starting point to 2 years above the mandatory minimum to reflect the fact that the aggravating factors of the offence placed it above the mandatory minimum. It therefore appears to be an inadvertent oversight that although the fact was drawn to his attention by counsel and he acknowledged it he did not make the adjustment. We will give the benefit of the doubt to the defendant. This results in a starting point of 7 years instead of 9 years imprisonment.

Arguments 2, 3, 4 and 5:

[28].        The Appellant complains that it was not proved that the firearm was used in the robbery and the other matters adumbrated by the sentencing judge so 2 years should not have been added to the starting point or already should have been included in arriving at a starting point. Because of the wide ambit of matters mentioned by the judge it is possible that the trial judge may have taken into account aggravating factors which he ought not to have taken into account because they were not facts to which the Appellant plead guilty or admitted in the statement of facts given before the court and there would not have been any evidence from a trial because the case was not tried until after the sentencing hearing. So the factors set out in questions 3, 5 and 6, including the intention with which the accused had the guns, whether persons were injured, and whether the firearm was discharged were not factors that could be taken into account on the possession charge unless they were admitted. Also it ought not to have been, as the judged found, an aggravating factor that the firearm was a real weapon, the ammunition was real and that it was unlicenced because, as correctly pointed out by counsel, these were essential ingredients of the offences in any event.

[29].        In exercising his discretion it would have been wrong in principle to take factors into consideration that ought not to have been, or to fail to take into consideration factors which ought to have been. From the sentencing remarks it is not clear which factors were taken into consideration. The trial judge admitted that all of these factors he listed did not apply to this case. He said “Let me be clear. Not all of the aggravating features or factors apply to the current case under consideration”. However he did not specify.

[30].        As we are not sure which factors the trial judge took into account to exercise his discretion and therefore whether or not he exercised his discretion properly to add 2 years, we as an appellate court can exercise the discretion afresh. Aggravating factors are objective factors related to the commission of the offence which make it more serious. The Appellant was only charged with and pleaded guilty to possession and no evidence was offered by the Crown in relation to the conspiracy to rob charge. Of the factors mentioned in the list we consider that only the fact that the guns were hidden might qualify as such an aggravating factor in relation to the offence charged because the possession of the firearms and ammunition was not evidentially tied to the robbery and killing.

[31].        Nevertheless, locating the weapons and not turning them in to the police, but instead moving them from beside the cactus plant and hiding them again in a jar, and being reckless as to whether they could be found and used to commit crimes, are aggravating factors attributable to the offender. They ought to have been taken into account and apparently were not.

[32].        On that basis we think it would have been a proper exercise of his discretion to increase the sentence by one year instead of two years on the basis which he did. This would increase the sentence to 8 years.

Argument 6

[33].        The learned judge gave a 1 year deduction for the Appellant's cooperation with the police. There was no breach of principle which made this a wrong use of his discretion and so we will not interfere. This would reduce the sentence to 7 years imprisonment.

[34].        Finally the trial judge discounted the sentence by 15% to give credit for the late guilty plea. That would bring the sentence to 6 years on each count to run concurrently. The Court therefore substitutes a sentence of imprisonment of 6 years.

Argument 8

[35].        We do not believe that the matters listed qualify as mitigation factors in this case.

[36].        On principle time spent on remand must be taken into account. The time spent on remand to which counsel and the Court agreed was 861 days or 2 years four months and 11 days. This should be deducted from the 6 years to calculate the time remaining to be served in prison by the appellant. This is without prejudice to the possibility of the earlier release of prisoners under any other law or regulations.

CONCLUSION

[37]         . Counsel was of the opinion that the final sentence, having taken into account aggravating factors and mitigating circumstances, should have been no more than five years. Our calculations do not yield that figure. For the reason we discussed we substitute a sentence of 6 years instead of 8 1/2 years imposed by the learned Judge.

[38].        It bears repeating that Courts continue to recognize that the sentencing process must be as transparent as possible and the procedure used as consistent as possible to maintain public confidence that the process is fair. Judges must continue to take care that they are clear on the method used to arrive at the starting point for sentences, and the sentences they impose. If the UK or other sentencing guidelines are relied on this should be demonstrated and justified. If local or regional case authority is relied on the authorities relied should be specified. Counsel should exercise diligence in assisting the court in identifying the necessary authorities and should come armed with authority both local and from other jurisdictions, if applicable, in order to seek a fair result.

Sir Elliott Mottley, P.

K. Neville Adderley, JA

Roger Hamel-Smith, JA

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