IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS
Appeal No. CR-AP 8/21
From CR 14/21
BEFORE: The Hon. Mr. Justice C. Dennis Morrison P
The Hon. Mr. Justice K. Neville Adderley JA
The Hon. Mr. Justice Stanley John JA
APPEARANCES: Mr. Finbar Grant for the appellant
Mrs. Nayasha Hatmin for the respondent
Date Heard: 25 May 2022
Date Delivered: 25 July 2022
- On 28th May 2021, the appellant Jude Denjour, on the advice of his counsel pleaded guilty to keeping a firearm contrary to Section 3(1) of the Firearms Ordinance Chap 18:09 and keeping ammunition contrary to Section 3(1) of the said Ordinance.
- On 17th November 2021, the appellant was sentenced by the Hon. Mrs. Justice Tanya Lobban Jackson, the Sentencing Judge, to a term of imprisonment of seven years, the mandatory minimum sentence for those offences.
- On 25th May 2022, we heard submissions from attorneys for the appellant and the respondent. At the conclusion of the hearing, we dismissed the appeals and indicated that written reasons would be given at a later date. This we now do.
- On 3rd March 2021, police carried out an operation at the appellant’s home to recover a firearm. As the officers approached the front of the house, the appellant started to come outside and when the officers identified themselves, the appellant quickly turned and ran inside to the back of the building where he punched a hole in the mosquito netting and then threw the firearm outside. The firearm was retrieved by the police and he was arrested and charged with the offences.
- He was subsequently interviewed by the police. During the interview, at which he was represented by Counsel, he did not respond to any questions put to him.
- On 30th November 2021, he filed an appeal against the sentences imposed on him by the Court.
Grounds of Appeal
- The Grounds of Appeal
- The sentence is manifestly excessive considering the circumstances of this case.
- The judge was wrong in law in failing to find exceptional circumstances.
The Legal Position
- The Firearms Ordinance provides that where a person is convicted of a firearm offence the court shall impose a mandatory minimum term unless there are exceptional circumstances relating to the offence or the offender:
“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)
(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 –
- whether the person pleaded guilty to the offence; or
- The main thrust of Counsel’s submission before us was that the Sentencing Judge failed to find exceptional circumstances which would have mitigated the sentence. Counsel for the appellant referred to several authorities including the following:
- R v Roberts (Mark)  2 Cr. App. R. (S.) 14 (2016)
- Regina v Robert Bartell  EWCA Crim 625
- Nancarrow  2 Cr App R (S) 4
- R v Avis  2 Cr App R (S) 178
- The principal issue on this appeal was whether exceptional circumstances existed either in the offence or the offender himself. In Forbes v Regina CR-AP 6 of 2019, the Court set out the procedure to be followed in determining whether exceptional circumstances exist. That procedure was followed in the instant case and the exceptional circumstances relied on by counsel for the appellant were as follows:
- The appellant pleaded guilty at the first opportunity.
- The appellant only had the firearm for a relatively short period of time.
- The appellant’s intention was to hand the firearm over to the police, but panicked.
- The appellant only had the firearm in the house for a very short time before the police showed up.
- The appellant had no contact with criminal elements.
- The appellant never put the firearm into public circulation.
- The appellant never used the firearm or brandished it in public.
- The appellant did not know, the circumstances in which he came in possession of the firearm that, he was committing an offence.
- The appellant believed that by relieving “T-Blanc” of the firearm he was protecting himself and his family from imminent danger.
- Counsel for the appellant referred to several personal circumstances of the appellant which he submitted should have been taken into consideration by the Sentencing Judge as ‘exceptional circumstances’. He submitted that:
- The appellant is a person of previous good character.
- The appellant is forty-four (44) years old.
- The appellant was in fear of his life and that of his family.
- The appellant had been assaulted repeatedly and his property attacked, causing him to relocate from his previous place of residence.
- The appellant lived in the country for the last twenty-one (21) years without running afoul of the law and is gainfully employed.
- The appellant is a father with sole custody of his two young children. Their mother is stuck in the Dominican Republic due to issues with a renewed work permit.
- Counsel for the appellant also relied on Regina v Avis which is an authority for the considerations taken into account when sentencing for firearm offences generally. There, Lord Bingham CJ posed these questions:
- What sort of weapon was involved?
- What use, if any, was made of it?
- With what intention, if any, did the Appellant possess it?
- What is the Appellant’s record?
- The first question posed by the Avis case can be answered easily as it was not in dispute that the appellant was found with a Beretta Pistol serial number BER352508. As to use and intention, Counsel for the appellant submitted that the appellant only came into possession of the firearm and ammunition in order to protect himself from people who were apparently attempting to kill him. However, we agreed with the learned Sentencing Judge’s findings that the appellant’s genuine fear for his safety and that of his family caused by previous incidents did not in fact make his particular circumstances ‘exceptional’.
- Counsel for the appellant further submitted that the Sentencing Judge found no exceptional circumstances since she focused primarily on the fact that a firearm had been recovered from the appellant’s home. He submitted, that the law required her to have taken a more holistic view looking at all the different elements that were before her. Counsel submitted that the Sentencing Judge should have been guided by the case of Nancarrow where Popplewell J set out the following principles:
- “The purpose of the mandatory minimum term is to act as a deterrent;
- Circumstances are exceptional if imposing the mandatory minimum term would amount to an arbitrary and disproportionate sentence;
- The Courts must not undermine the intention of Parliament by accepting too readily that the circumstances of a particular offence or offender are exceptional;
- It is necessary to look at all the circumstances of the case together, taking a holistic approach. It is not appropriate to look at each circumstance separately and conclude that, taken alone, it does not constitute exceptional circumstances;
- The Court should also have regard to the four questions set out in the Avis case.
- The circumstances of the offender are important regarding whether if he is unfit to serve such a sentence;
- Each case is fact-specific and the application of the principles is dependent upon the particular circumstances of each case;
- Unless the Judge is wrong in identifying exceptional circumstances where they do not exist or wrong in not identifying exceptional circumstances where they do exist, this Court will not readily interfere.”
- Counsel for the respondent referred to several authorities including:
- R v Bartell  EWCA Crim 625
- Lawrence Forbes v Regina CR-AP 5 of 2019;  TCACA 8
- Regina v Avis  2 Cr App R. 178
- Jim Kelly Joseph v Regina CR-AP 18 of 2018;  TCACA 11
- She submitted that the sentence was fair and just having regard to the circumstances of the case. She placed heavy reliance on Lawrence Forbes v Regina where the appellant was convicted and sought to have his sentence reduced on the ground that there were exceptional circumstances. In rejecting the appellant’s contention, the Court of Appeal stated with approval that in sentencing the appellant, the learned CJ had referred to the case of Merrion  1 Cr App. R (S) 70 where Thomas LJ stated:
“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 the minimum sentence. It is only in exceptional circumstances, rare as it is, that the court can exercise any degree of mercy.”
- The second issue was whether the sentence imposed was manifestly excessive in all the circumstances. Counsel for the appellant submitted that the sentence imposed was arbitrary and disproportionate and furthermore, that a term of seven years’ imprisonment was more excessive notwithstanding the adage that the punishment must fit the crime. Counsel highlighted the Avis case where, he submitted, that similar offences for firearms received lesser sentences. He also relied on a statement by Lord Simon in R v Bartell where he said;
“Ultimately the test would be whether the imposition of the minimum sentence would lead to a sentence that is arbitrary or disproportionate.”
- We were satisfied that based on information contained in the Record of Appeal, the Sentencing Judge was fully aware of all the extenuating circumstances with which the appellant was faced. The appellant admitted his guilt for possession of both the firearm and the ammunition and they had been in his possession for at least a couple weeks before the police searched his home. Furthermore, upon the arrival of police officers at his home, the appellant sought to discard the firearm instead of handing it over to the police.
- We quote with approval the statement of Sir Elliot Mottley P in delivering the judgement of the Court of Appeal in Jim Kelly Joseph v Regina  TCACA 11 at paragraph 88 where he said in relation to possessing a firearm unlawfully,
“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 this amendment to section 30 of the Firearms 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.”
- In the instant case, all the mitigating and aggravating factors were laid out before the Sentencing Judge by Counsel for the appellant and in the exercise of her discretion and following settled legal principles, she imposed the minimum sentence. It is clear that the procedure to determine whether exceptional circumstances existed was adhered to by the Sentencing Judge.
- While the sentence against the appellant may appear harsh, it is intended to act as a deterrent to other members of society regarding the possession of unauthorised firearms and/or ammunition. Accordingly, we saw no justification for interfering with the decision of the Sentencing Judge.
- The appeal was dismissed and the sentence affirmed.
/s/ John JA
/s/ Morrison P
I also agree
/s/ Adderley JA