Alcock v Commissioner of Police

JurisdictionBahamas
CourtSupreme Court
JudgeIsaacs, Sr. J.
Judgment Date21 Jun 2013
Docket NumberCRI.CON/ 25 of 2013

Supreme Court

Isaacs, Sr. J.

CRI.CON/ 25 of 2013

Alcock
and
Commissioner of Police
Appearances:

Messrs J. Henry Bostwick, Q.C. and Alexander Maillis for the applicant

Mressrs Collie and Munroe for the respondents

Constitutional law - Fundamental Rights and Freedoms — Mandatory minimum sentence — Mitigating factors — Whether imposition of mandatory minimum sentence infringed plaintiff's rights — Case remitted to Magistrate for re-sentencing — The Bahamas Constitution Articles 17, 28.

Isaacs, Sr. J.
1

On 28 June 2013 I concluded that the sentences of four years imposed by Stipendiary and Circuit Magistrate Joyanne Ferguson-Pratt (hereinafter referred to as “the Magistrate”) on Stevens Alcock, the applicant, were grossly disproportionate in contravention of Article 17 of the Constitution of the Commonwealth of The Bahamas (hereinafter referred to as “the Constitution”) in view of the circumstances of his case, to wit, he had no previous convictions, he cc-operated with the authorities and he pleaded guilty at the earliest opportunity. I promised to put my reasons in writing and I do so now.

2

The applicant filed an Originating Notice of Motion on 29 May 2013 seeking the following relief:

  • “1. A declaration that Article 17 of The Bahamas Constitution which affords the applicant the right Not to be subjected to torture or to inhuman or degrading treatment or punishment has been infringed; and,

  • 2. A declaration that the imposition of the mandatory minimum sentence per the Firearms Amendment Act, 2011 is in breach of the quintessential principle that it is the function of the court to impose sentences; and, that in the exercise of that function courts must ensure that in any particular case the sentence must fit the crime and must be in keeping with the principle of proportionality as embedded in Article 17 of the Constitution of The Bahamas and have regard to the circumstances of the commission of the offence and the offender, which may include any aggravating or mitigating circumstances as may be present in any particular cases; and,

  • 3. That the sentence be quashed and the applicant properly resentenced given all the circumstances unique to him.”

    • The grounds for the application are expressed as follows”

      • “a. That the applicant's rights have been severely infringed due to the imposition of the mandatory minimum sentence on him;

      • b. That the imposition of the mandatory minimum sentence on the applicant is disproportionate to the offence given all the circumstances;

      • c. That there is a clear Separation of Powers between the Legislature and the Judiciary and the imposition of a mandatory minimum sentence violates those fundamental principles. To remove the discretion from a sentencing Magistrate unreasonably trespasses on his/her functions as part of the judiciary; and

      • d. That the applicant has been severely affected due to the infringements.”

3

The applicant filed an affidavit in support of his application and exhibited thereto is a plea in mitigation made by Mr. Bostwick before the Magistrate. I have distilled the facts of the case from the explanation provided by the plea in mitigation and the rough transcript for the 15 May 2013 hearing in court number 9.

4

The applicant entered The Bahamas on his private vessel. He was in possession of five firearms which he failed to declare to Customs officials. The applicant had been on his way to the Turks and Caicos Islands when his vessel experienced mechanical difficulties. This caused him to put in at a Bahamian port so he could effect the necessary repairs. It seems that his exigent circumstances caused him to overlook the requirement to clear Customs. Further, he failed to renew a Cruising Permit issued to him on a previous excursion into the country in 2012.

5

On 9 January 2013 his vessel was boarded by members of the Royal Bahamas Defence Force and searched by them. They discovered his cache of weapons and ammunition; and arrested him. He appeared before the Magistrate on 22 February 2013 and pleaded guilty to four charges related to the firearms and ammunition. The Magistrate adjourned the matter of sentencing to 15 May 2013. On that date the Magistrate sentenced the applicant to four years imprisonment on each charge. The sentences were to run concurrently; and from 22 January 2013, the date of his arraignment.

6

In his affidavit at paragraphs 9 and 10 the applicant stated:

  • “9. That all of the above information was presented to the learned Magistrate at the time of my plea, and sentence was deferred ultimately to the 15th May, 2013. Notwithstanding the learned Magistrate voiced frustration at what she understood her limitation as a creature of stature to be, and her desire to see the law changed to prevent injustice being done, the learned Magistrate felt that she had no choice but to impose upon me the minimum mandatory sentence of 4 years imprisonment. Consequently I received a 4 year sentence in respect of each count to run concurrently. The learned Magistrate then undertook to refer the matter to The Supreme Court for the appropriate action to be taken and in respect of which I now make this Affidavit.

  • 10. That having regards to all of the circumstances of this case, including my age, lack of any criminal history, the fact that these weapons were personal weapons properly and lawfully owned by me in The United States, were not used in the commission of any offence, nor had they been intended for sale or distribution to any third party, the fact that I chose to acknowledge my guilt consequent on my failure to declare customs properly, took immediate steps to repair this customs breach through the payment of a $5, 000.00 fine etc., I verily believe that imposition of a 4 year mandatory sentence is harsh and unjust and disproportionate in the circumstances. As an American Citizen, we are used to our second amendment right to bear arms such that it is almost a part of our subconscious, and it was a serious and an egregious oversight born of confusion and complacency on my part which lead to these unfortunate circumstances.

    • Had I paused long enough to properly clear customs, I would have been able to lawfully retain my weapons and none of this would have subsequently transpired. I am very, very sorry for failing to properly declare for customs purposes, and I can honestly and truly say to the Court that have done everything within my power to correct and rectify this breach and it is a mistake which I shall never ever make again.”

7

The rough draft of the transcript bears out the contention that the Magistrate promised to refer the case to the Supreme Court. At lines 19 to 20 she says: “The Court will also indicate that I will send the matter to the Supreme Court for a reference.” The procedure suggested by the Court of Appeal in the recent case of Andrew Davis v Commissioner of Police MCCrApp & CAIS No. 190 of 2010 and Anthony Armbrister v. Commissioner of Police MCCrApp & CAIS NO. 191 of 2011 was enunciated by Allen, P. at paragraph 46:

46
    “Consequently, even if magistrates are of the view that the mandatory minimum sentence in any particular case would be unconstitutional, they must impose it and may thereafter refer the matter for determination by the Supreme Court pursuant to article 28 (3) of the Constitution.
8

Mr. Collie had submitted the applicant was resorting to the Constitution unnecessarily and his application should be dismissed as an abuse of process. He relied on the proviso to Article 28(2)(b) which provides:

“(2) The Supreme Court shall have original jurisdiction–

  • (b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:

    • Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress...

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