Freda Hart v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P,Mr. Justice Isaacs, JA |
| Judgment Date | 15 August 2023 |
| Neutral Citation | BS 2023 CA 119 |
| Docket Number | MCCrApp. No. 71 of 2023 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Charles, JA
MCCrApp. No. 71 of 2023
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
Criminal appeal — Possession of an unlicensed firearm — Possession of ammunition — Application for an extension of time within to appeal — Factors to consider for an application for an extension of time within to appeal — Appeal against sentence — Contested trial — Not guilty plea — Intended Appellant with medical condition — Fresh evidence — Prevalence of firearms — Seriousness of the offence — Age of the offender — Elderly appellant — Whether a custodial sentence of 1 year imprisonment was unduly harsh given the offender's age and medical condition — Whether the Bahamas Department of Correctional Services is unable to manage and treat the intended appellant's medical condition — Whether the Court has jurisdiction to interfere with the sentence — Whether the Court has jurisdiction to interfere with the sentence on the basis of the intended appellant's medical condition — Rule 19 of the Correctional Officers (Code of Conduct) Rules, 2014 — Rule 12 of the Correctional Services (Inmates) Rules, 2014
On 1 December 2020, officers executed a search warrant at a home in Freeport, Grand Bahama. During the execution of the search warrant, Freda Hart, an 81 year old great grandmother (“the intended appellant”) went into the bedroom of her grandson, James Hart, and retrieved a pink towel. After a struggle with one of the officers, it was discovered that the pink towel contained an unlicensed firearm and 8 rounds of ammunition. Both the intended appellant and her grandson were arrested and charged with possession of an unlicensed firearm and ammunition. Following their not guilty pleas, a trial ensued. The intended appellant was found guilty on one count of possession of an unlicensed firearm and one count of possession of ammunition. She was sentenced to one year imprisonment on each count, to run concurrently. The intended appellant now seeks the leave of this Court to extend the time within which to file and serve her Notice of Appeal against sentence on the basis that it is unduly severe, given her unblemished character, her age and medical condition.
Held: The application for an extension of time within which to appeal is allowed. The appeal against sentence is allowed and the sentence imposed by the Magistrate is quashed. A sentence of 6 months & 12 days imprisonment is substituted in its stead. The appellant, having served that sentence, is to be released forthwith.
per Barnett, P: The Court appreciates that it should be loathe to interfere with the sentence of a sentencing judge and should only do so in limited circumstances. However, the appellant's medical evidence was not before the Magistrate. At the time of sentencing, the appellant was not represented by Counsel. Had the Magistrate had the benefit of full argument and the appellant's medical report to assist him, he may well have come to a different sentencing decision. Therefore, the Magistrate was unable to fully consider all relevant factors, particularly the appellant's medical condition. This Court, having the benefit of that information, is satisfied that this is a proper case to interfere with the sentencing discretion of the Magistrate.
The appellant has already spent over 6 months & 12 days in prison. Given her age and medical condition, the Court is satisfied that this is sufficient punishment for her serious mistake. She should spend no further time in prison and should be released immediately.
per Isaacs JA: In this case, there has been no indication from BDOCS, via its medical officer and Commissioner, that it is unable to care for the intended appellant's conditions. Without a communication from the Commissioner pursuant to section 12(5) of the Inmate Rules, this Court lacks the jurisdiction to interfere with this sentence.
Notwithstanding my view that the Court lacks the jurisdiction to interfere with the sentence, in the circumstances of this case, the Magistrate considered all of the facts and circumstances of which he was seized, which did not include a medical report. He cannot be said to have failed to take into account a medical report that did not exist at the time of the sentencing. The Magistrate committed no error in principle that would permit this Court to interfere with the intended appellant's sentence.
A review of the cases reveals that the intended appellant's one-year sentence is well within the range of sentences for the possession of firearms or ammunition. Indeed, her one-year sentence is by far at the lower end of the spectrum.
Fred Ramsey v R VBI No. 353/12/2015 considered
Maillis v DPP MCCrApp No. 92 of 2021 distinguished
Moorhead v COP MCCrApp. No. 90 of 2022 considered
R v Clarke [2017] 1 W.L. R. 3851 considered
R v Hall (Daniel) [2013] EWCA (Crim) 82 considered
R v Umberto Shenato Criminal Case No. 41 of 2015 (Antigua and Barbuda) mentioned
R v Stevenson [2018] EWCA Crim 318 considered
Robin Jeantil v The Commissioner of Police; Rechard Charles Sr. v The Commissioner of Police MCCrApp. Nos. 82 & 83 of 2021 considered
Stanford Pinder v DPP; Leroy Fawkes v DPP SCCrApp. Nos. 3 & 4 of 2021 considered
Alexander Harris v The Commissioner of Police MCCrApp. No. 38 of 2020 mentioned
Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 considered
Dieuson Tomas v The Commissioner of Police MCCrApp. No. 122 of 2019 mentioned
Director of Public Prosecutions v Pericles A. Maillis MCCrApp. No. 92 of 2020 mentioned
Karchav v Commissioner of Police MCCrApp No 56 of 2015 considered
Keith Jones v. R SCCrApp. No. 11 of 2007 considered
Kirk Stuart v The Commissioner of Police [2022] 2 BHS J. No. 10 considered
Latario Rolle v The Commissioner of Police [2021] 1 BHS J. No. 271 considered
R v Clarke; R v Cooper [2018] 2 All ER 333 considered
R v Gumbs (1927) 19 Cr. App. R 74 considered
R v Hall (Daniel) [2013] EWCA Crim 82 considered
Regina v Fred Ramsey VBI No. 353/122015 considered
Rodriguez Jean Pierre v The King [2023] UKPC 15 considered
Ronald Ralph Moorhead Jr. v The Commissioner of Police MCCrApp. No. 90 of 2022 distinguished
Stanford Pinder v DPP; Leroy Fawkes v DPP SCCrApp. Nos. 3 & 4 of 2021 distinguished Teniro Minns v The Commissioner of Police MCCrApp. No. 254 of 2018 mentioned
Mr. Caleb Dorsett, Counsel for the Appellant
Mrs. Ashley Carroll, Counsel for the Respondents
Judgment delivered by The Honourable
. This is an application for an extension of time within which to appeal against sentence.
. The intended appellant, Freda Hart, is an 81 year old great grandmother. On 3 February 2023 she was convicted in the Magistrate's Court of one count of possession of an unlicensed firearm and one count of possession of ammunition. She was sentenced to one year imprisonment on each count to run concurrently.
. The facts of the offence were summarised in the Magistrate's Ruling. The intended appellant lives with her daughter and her grandson. The police attended the home to execute a search warrant directed toward her grandson. The Magistrate then said:
“ As it relates to the case against the Defendant Freda Hart I have consider (sic) all of the evidence particularly the unchallenged evidence of Officer Lynette Leadon. The Defendant, Freda opted not to cross-examine the Witness Lynette Leadon nor ask any questions. I have therefore given serious consideration to the facts and evidence contained in the testimony of Officer Leadon and find the same to be truthful. Officer Leadon stated among other things that the Defendant Freda Hart had physical custody of the firearm because the same was retrieved from her as result of [a] physical struggle between the Defendant, Freda Hart and Officer Leadon. Officer Leadon also testified that the Defendant willing[ly] went (sic) a closet in a bedroom in the residence where the Defendant resides and returned from that closet and bedroom with a Pink Towel which she used to conceal a .9mm Pistol mentioned herein as “Exhibit L.L.2”. The court there (sic) is satisfied that the Defendants actions demonstrated that she was aware of the presence of a firearm in her physical custody.
The Court also takes into account the remarks made by the Defendant, Freda Hart “he needs it to protect himself' when asked by her daughter what was she doing with a Firearm. Consequently, on the totality of the evidence this court finds that the Prosecution has proven beyond a
reasonable doubt that the Defendant, Freda Hart was in Actual Possession with knowledge of the .9mm Pistol Serial No 1776180 and eight (8) unfired rounds of Ammunition.”
. The Magistrate then convicted the intended appellant. His sentencing remarks were in the following terms:
“ The prevalence of Firearms in our society is becoming an increasing concern. It is rather disturbing the actions of the Defendant, Freda Hart concerning Possession of Unlicensed loaded Firearm. The evidence clearly shows that the Defendant knew what she was doing was wrong. By concealing a loaded firearm in a “ready to fire position” not only put the Defendant's life in jeopardy but, that of Officer Leadon and others. Likewise, the Court also finds the actions of the Defendant James Hart no less reckless and egregious. James Hart's admission to ownership and possession of the firearm clearly shows that he not only risk jeopardizing his future but that of his grandmother. Court (sic) have said time and time again that Firearm (sic) are dangerous and often times used to carry out other violent crimes in our communities.
Mitigation:
James Hart
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