Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 6 of 2019

Forbes v. Regina (CR-AP 6 of 2019) [2020] TCACA 9 (30 January 2020);

Law report citations
Media neutral citation
[2020] TCACA 9
Coram
Mottley, P
Adderley, JA
Hamel-Smith, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS                                                                                                              CR-AP 6/2019

BETWEEN

STAN FORBES                                                              APPELLANT

AND

REGINA                                                                          RESPONDENT

BEFORE:

Sir Elliott Mottley, President

The Hon. Mr. Justice Adderley, Justice of Appeal

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

Appearances:

Ms. Sheena Mair for the Appellant

Ms. Tamika Grant of the office of Director of Public Prosecution

Heard:                11th September 2019

Delivered: 30th January 2020

Sir Elliott Mottley, P.:

1.             On 19 December 2018 Stan Forbes, the appellant, pleaded guilty to keeping a firearm, a .38 revolver, without being the holder of a firearm license and keeping one round of 38 special millimeter also without having a license. These offences were committed on 27th September 2018.

2.             On 5 April 2019 the appellant was sentenced to a term of imprisonment of seven years on each count; the sentences were to be served concurrently.

3.             The appellant sought leave to appeal against the sentence on the grounds that the sentence of 7 years imposed was excessive.

4.             The Police received information that the appellant was in possession of an illegal firearm. The police conducted a search of the residence where the appellant lived. During the course of this search, the appellant told the police that he did not keep anything illegal in the house. The police found a black and brown revolver with one round of ammunition under a sofa. The appellant eventually admitted that the firearm belonged to him.

5.             Counsel who appeared at the hearing below stated that the appellant was walking his dog on the beach when he found the gun on the beach. His counsel said that the appellant had the firearm in his possession for less than 24 hours. During this period, counsel stated that the appellant had asked many persons what he should do with the firearm or how he should turn it into the police. The court was told that the appellant considered it would not be appropriate to give it to his pastor to give the police.

6.             In imposing sentence Aziz stated:

“Mr. Forbes quite rightly referred to the social enquiry report, and again Paragraph 9, which dealt with the 'Presenting Problem' as to how Mr. Forbes came into possession of the firearm, that being, he takes his dog for a walk on Five Cays beach and he says he came cross it in the sand and he picked it up from there. And also that there was no ill-intent, meaning that Mr. Forbes didn't have the gun for the purpose of committing crime, he wasn't holding the gun on behalf of someone who had committed crime, or that there was any evidence that particular firearm had been used in any crime.

Now, I say that, and I've gone through that in some detail, because I have also considered what the crown's case was, and what the defendant, Mr. Forbes, said to the police when he was interviewed. And Mr. Forbes was asked on the 27th of September at the Five Cays -- at the police headquarters, this question: How did the firearm get in the sofa? And the reply was, I put it there.

Question:

Can you remember when you put the firearm in the sofa?

Reply: I cannot remember. Question: How long did you have that firearm in your possession?

Answer: Three weeks.

Question: Where did you get this firearm?

Reply: On the beach. On the day I was walking with my dog I walked across the firearm. Question: When you discovered the firearm on the beach, what did you do with it:

Reply: I picked it up. Before I picked it up, I looked it up and carried it with me. Where did you carry the firearm that you had found on the beach? I carried it home.

Now, I referred to that because it all goes towards whether there are any exceptional circumstances in this particular case. And I will come to deal with it later on as well.

But in terms of the Court's consideration, these types of offences, I mean firearm offences, or firearm related offences, must be marked by sentences that show that society has intolerance for firearms.”

7.             The judge concluded:

“Having considered all of the circumstances of this case, I do not find that there are exceptional circumstances to warrant a shorter sentence than the mandatory minimum.

The Court has considered the fact that it's a real weapon and real ammunition. The firearm was a licenced, it's a serious offence, the gun was concealed in a place where there were others present, the risk of harm to others. And as I indicated, those are simply some of the general aggravating factors in this case. Apart from that, as I alluded to earlier, the defendant was interviewed about the offence and indicated to the authorities that he had the gun for about three weeks; not twenty four hours, as has been suggested and put forward; quite properly, based on instructions, and the Court has considered it all.”

8.             Section 30 of the Firearm Ordinance CAP 18.09 states:

“Mandatory minimum sentence: exceptional circumstances:

30. (1) This section applies-

(a) where a person is convicted of-

(i) an offence under section 3(1) or (2)

(b) to the sentencing of a person after the commencement of this section, regardless of whether the offence for which the person is being sentenced was committed before or after that commencement.

(2) The court shall impose a term of imprisonment of at least the required mandatory minimum term, unless-

(b) the court is of the opinion that there are exceptional circumstances relating to the offence or the person convicted of the offence which justify its not doing so.

(3) The court, in considering for the purposes of subsection (2) whether a sentence of less than the mandatory minimum term is just in all the circumstances, may have regard, in particular to -

(a) whether the person convicted of the offence has a previous conviction for an offence under this Ordinance;

(b) whether the public interest in preventing the unlawful possession or use, manufacture, transfer, sale or acquisition of firearms would be served by the imposition of a lesser sentence.

(4) The following shall not constitute exceptional circumstances, for the purposes of subsection (2), justifying the imposition of a lesser sentence-

(a) whether the person pleaded guilty to the offence; or

…….’’

9.             A summary of the appellant, taken from the respondent's skeleton argument, is set out below on:

“[6] The Appellant's submission as they are understood by the crown are that:

(i) the sentence of 7 years imposed by the trial judge was excessive as circumstances existed which could count as exceptional when the circumstances are considered as a whole in that:

a.             The firearm had only been in the Defendant's possession for 24 hours

b.             He had taken it for fear of it falling into the wrong hands with the intention of removing the risk to the public.

c.             His intention was to hand it over to the authorities.

d.             He had not used the firearm and it was his belief it was not functioning.

e.             He had pled guilty at the earliest opportunity.

f.              He had no previous convictions

g.             He was 22 at the time of the offence

h.             There is no indication he was likely to reoffend

(ii) the guidance in R v Avis & Ors should have been applied and the judge had wrongly considered what counted as aggravating and mitigating factors.

a.             Factors identified as aggravating were elements of the offence

b.             The fact that no damage or injury was caused is a mitigating factor as are the facts that the firearm was not used by the Defendant; it was not in a public place and the defendant intended to hand the gun over to the authorities.

c.             The Defendant plead guilty at the earliest opportunity.

(iii) the judge had wrongly considered a position contrary to the defendant's indication that he had had the gun for 24 hours.

(iv) the judge had wrongly considered the prevalence of firearm offences in today's society and it was arbitrary to impose a deterrent sentence.

(v) The sentence imposed was not proportionate to the mitigating factors which existed.

10.          As stated previously, counsel for the appellant stated that the appellant only had the firearm in his possession for 24 hours. This was rejected by the judge who came to the conclusion that the appellant had the firearm in his possession for a longer period. In our opinion, the judge was entitled to find that he had it for a longer time. During an interview with the police, the appellant was asked how long he had the firearm in his possession. The statement by counsel in his mitigation was inconsistent with what the appellant had said in his interview. The appellant responded that he had it for three weeks. In these circumstances, the judge need not hold a Newton hearing.

11.          The court was referred to R v Andrew George Mudd (1988) 10 Cr. App.R (S) 22 where it was held that “on a plea of guilty where the defendant advances a version of facts which I not accepted by the prosecution and which the judge considers manifestly false and incredible, it is not necessary for the judge to hold a pre-sentence hearing”.

12.          In the circumstance of this case the judge was entitled to accept that the appellant had the firearm in his possession for more than 24 hours. However, in relation to firearm offence to proper practice in determining whether exceptional circumstance exist it is necessary to refer to R v Rogers [2016] WCA 801. The Court will revert to this case later and set out the procedure which should be followed when a defendant pleads guilty to an offence under the Firearm Ordinance which required the Court the impose a mandatory minimum sentence and the defendant has indicated that he is relying on exceptional circumstances.

13.          The Legislature in 2018 amended the Firearm Ordinance and increased the penalty where persons who are found guilty of offences under Section 3(1) or (2) of the Firearm Ordinance to a mandatory minimum sentence of imprisonment for seven years unless the Court considers that there are exceptional circumstances relating to the offence or the person convicted of the offence which justify the Court in not imposing the mandatory minimum.

14.          By the imposition of a mandatory minimum sentence, the Legislature was following the policy adopted by the Parliament in the United Kingdom when it amended section 5 of the Firearms Act 1968. Lord Wolfe of Barnes, Chief Justice of the United Kingdom explaining the rationale of Parliament in enacting the imposition of mandatory minimum sentences in the United Kingdom observed in R v. Zakir Rehman and Gary Dominic Wood [2005] EWCA 2056:

“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 mayresult 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 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 would be capable of being arbitrary.

15.          The upsurge in offences involving the use of firearms in the Turks and Caicos may very well be at the root of the policy which lead to the Legislature amending the Firearm Ordinance to require the courts to impose a mandatory minimum sentence.

The statement by Lord Woolfe that the mere possession of a firearm can create dangers to the public applies with equal or greater force in the Turks and Caicos Islands. It must be remembered that the economy of these Islands depend on tourism and international business. The use of firearms will create a danger to the economy. This may be the reason why the Legislature had said that offences against section 3(1) and/or (2) are punishable by mandatory terms of imprisonment.

16.          In R v Rehman and Wood at paragraph 14, Lord Woolfe sets out what is the role of a Court of Appeal when dealing with an appeal dealing with exceptional circumstances. His Lordship observed that it was the opinion of the Court below that is critical in determining whether exceptional circumstances exist. He also indicated the limited role of a Court of Appeal. His Lordship stated:

"[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 circumstance when they do exist, this court will not readily interfere.”

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

(i)            The appellant come came into possession of the firearm when he found it on the beach sticking out of the sand while walking his dog.

(ii)           When he found the firearm it was the appellant's intention to hand the firearm over to the police.

(iii)          The appellant was in possession of the firearm for 24 days. He stated this in his interview with police.

(iv)          No evidence that he was in possession of the firearm for the sole purpose of committing criminal activity.

(v)           For the purpose of this offence the judge treated the appellant as a person of previous good character.

(vi)          He was eventually co-operative at the time when the police was executing the search warrant although at first denying the presence of anything illegal.

(vii)         The firearm was loaded with one round of ammunition.

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

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

19.          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 way 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.”

20.          This Court must be mindful of the observation of Lord Woolf, Lord Chief Justice who 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.”

21.          The exceptional circumstances relied on by the appellant were that he had found the gun while walking with his dog on the beach. This explanation was rejected by the judge as he was entitled to do in the circumstances of this case. During the execution of the search warrant by the police the appellant told the police that he did not keep anything illegal in the house. The appellant must have known that possessing or keeping a firearm without the appropriate licence was unlawful. He did not volunteer any information to the police that he had a gun which he had found on the beach in the previous 24 hours and he was now handing it over to the police. The gun was found under the sofa by the police while executing the warrant.

22.          The exceptional circumstances on which the appellant was relying included the length of time the gun was in his possession, the previous 24 hours. During his interview with the police the appellant admitted that he had placed the firearm in the sofa. He, however, could not remember when he did this. The appellant was asked specifically how long did he have the firearm in his possession and he replied “three weeks”.

23.          The judge correctly stated that these factors were relevant in deciding whether exceptional circumstances existed which would permit the Court to impose a sentence shorter than the mandatory minimum sentence of seven years. The judge was therefore correct in rejecting the appellant's submissions.

24.          It was for these reasons the Court refused leave to appeal.

25.          Before leaving this matter, the Court considers it necessary to comment on the procedure to be adopted where an accused indicates that he intends to plead guilty to a firearm offence which carries a mandatory minimum term of imprisonment and intends to rely on exceptional circumstances. In R v. Rogers [2016] EWCA 801, Lord Thomas of Cwmgiedd, Chief Justice, in a judgment to which the other members of the Court contributed, set out the procedure which should be followed when an accused person who is facing a mandatory minimum sentence of imprisonment intends to rely on the existence of special circumstances relating to the offence or the offender.

26.          At para.121, Lord Thomas stated:

In our judgement the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504, if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant's account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, of course, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one.

27.          The Court recommends that when an accused who pleads guilty to an offence which carries a mandatory minimum sentence of imprisonment wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his attorney-at-law. The purpose of this procedure is to ascertain from the prosecution whether they are in agreement with the circumstances set out by the accused. If the prosecution does not agree to the circumstances, the accused will have to decide whether he wants a hearing. Counsel should advise the accused that if he is disbelieved “he will lose some credit to which he would otherwise be entitled.” If there is agreement between the prosecution and the accused but the agreement is not approved by the judge, the accused will decide whether he wants a hearing. In such a hearing, the judge is required to determine the matters to a criminal standard of proof with the burden on the prosecution to disprove the defendant's account of the circumstances in which he acquired the firearm. If the prosecution fails to disprove the account of the accused the judge must proceed on the basis that the defendant's version is correct.

28.          However, it is necessary to bear in mind the admonition of Lord Thomas that it does not follow that because the judge accepts the defendant's version of the circumstances under which the defendant acquired the firearm, it does not mean that it amounts to exceptional circumstances. As the Chief Justice stated, the hurdle remains a high one.

Addendum

1.             Recently a number of cases have come before the Court in which the issue of whether exceptional circumstances exist. In R v Rogers [2016] EWCA 801, Lord Thomas of Cwmgiedd, Chief Justice, in a judgment to which the other members of the Court contributed, set out the procedure (?) which should be followed when an accused person who is facing a mandatory minimum sentence of imprisonment intends to rely of the existence of special circumstances relating to the offence or the offender.

2.             At para 121, it is stated:

“121. In our judgement the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing. As was explained in Lashari [2010] EWCA Crim 1504, if a hearing takes place, then the judge must determine the matters to the criminal standard of proof and the burden is on the Crown to disprove the defendant's account of the circumstances in which he acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant's version is correct. It does not, of course, follow that the judge, even if he accepts the defendant's version of events, will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing exceptional circumstances, remains a high one.”

3.             In this case, there was in fact a singed Basis of Plea.

4.             The Court recommends that when a person wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his attorney-at-law. The purpose of this procedure is to ascertain from the prosecution whether they are in agreement with the circumstances. If the prosecution does not agree to the circumstances, the defendant will have to decide whether he wants a hearing. Counsel should advise the defendant that if he is disbelieved “he will lose some credit to which he would otherwise be entitled.” If there is agreement between the prosecution and the defence but not approved by the judge, the defendant will decide whether he wants a hearing. In such a hearing, the judge is required to determine the matters to a criminal standard of proof with the burden on the prosecution to disprove the defendant's account of the circumstance in which he acquire the firearm. If the prosecution fails to disprove defendant account, the judge must proceed on the basis that the defendant's version is correct.

5.             However, it is necessary to bear in mind the admonition of Lord Thomas that it does not follow that because the judge accepts the defendant's version of the circumstances by which the defendant acquired the firearm, it does not mean that it amounts to exceptional circumstances.

Sir Elliott Mottley, P.

Adderley, JA

Hamel-Smith, JA