Renaldo Armbrister v The Commissioner of Police

JurisdictionBahamas
CourtCourt of Appeal
JudgeMadam Justice Crane-Scott, JA
Judgment Date20 May 2022
Neutral CitationBS 2022 CA 074
Docket NumberMCCrApp. No. 111 of 2021
Between
Renaldo Armbrister
Appellant
and
The Commissioner of Police
Respondent
Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Madam Justice Bethell, JA

MCCrApp. No. 111 of 2021

IN THE COURT OF APPEAL

Extension of Time Application — Intended appeal from Magistrate's decision — Guilty pleas — Appeal against conviction and sentence — Whether conviction and sentence for possession with intent to supply firearm wrong in law and a nullity — Whether magazine is a component or part of a firearm as statutorily defined — Whether magazine is a firearm by virtue of statutory definition of firearm — Whether imposition of fine following conviction for possession of ammunition is a lawful sentence — Whether imposition of consecutive term of imprisonment for non-payment of fine is wrong in principle — Whether overall sentence thereby unduly severe - Sections 2(1), 9 & 9(A) Firearms Act — Sections 233 & 235(2) Criminal Procedure Code — Rule 36 Court of Appeal Rules -

Following his arraignment and guilty pleas taken before a Magistrate sitting in Court No. 2, Freeport, Grand Bahama, the intended Appellant was convicted of 2 offences contrary to the Firearms Act, Ch. 213 and 1 offence contrary to the Dangerous Drugs Act, Ch. 228.

Following a plea in mitigation made on his behalf by his legal representative, the intended Appellant was sentenced: on Count (1) — Possession of unlicense (sic) firearm with intent to supply — to 3 years imprisonment; on Count (2) — Possession of ammunition — to a fine of $2,000.00 or 1 additional year at BDOCS to run consecutively; and on Count (3) — Possession of Dangerous Drugs with intent to supply — to a fine of $2,000.00 or 1 additional year at BDOCS to run concurrently.

Following his convictions and sentences, the intended Appellant applied to the Court of Appeal seeking an extension of time within which to appeal against his convictions and his sentences.

On 5 April 2022, the Court acceded to the extension of time application and heard arguments in relation to the Appellant's grounds of appeal. In affirming his convictions and varying his sentence on Count 2, the Court undertook to provide written reasons for its decision. The Court's detailed reasons appear herein.

Held: For all the reasons explained in this written Decision we: (i) affirmed the Appellant's convictions for Possession of Unlicense (sic) Firearm with Intent to Supply (Count 1); Possession of Ammunition (Count 2) and Possession of Dangerous Drugs with Intent to Supply (Count 3); and (ii) quashed the sentence which the Magistrate imposed for Count 2 and substituted instead, a custodial sentence of 1 year which is to run concurrently with the other 2 sentences.

Having considered the definitions of “firearm” and “parts and components” respectively, in the Firearms Act (as amended), we had no difficulty in concluding that intended ground 1(ii) had absolutely no merit.

The law is that by virtue of section 2, a “firearm” is now expressly defined to include “component parts of a firearm or prohibited weapon”. This will include parts or components such as a “magazine”. A magazine is a “part” or “component” ofa “firearm” since it is clearly an element or replacement element specifically designed for a firearm and is essential to its operation. The facts disclosed that the intended appellant had pled guilty to possession of a semiautomatic firearm and 4 magazines. By virtue of section 9A (3), this means that he had been found in possession of and had pled guilty to possessing “two or more firearms”. His conviction on Count 1 for possession “with intent to supply” could not be a nullity as he suggested. In the circumstances, we were satisfied that section 233 was a complete bar to his intended appeal against his conviction on Count 1. Being satisfied that the fine which the Magistrate imposed relative to the Appellant's conviction for possession of ammunition (Count 2) was contrary to law; and being further satisfied that the consecutive default sentence was wrong in principle, as both offences were part of a single transaction, we quashed the sentence which the Magistrate imposed on Count 2 and substituted instead a custodial sentence of 1 year which is to run concurrently with the other 2 custodial sentences.

Attorney-General v. Omar Chisholm, MCCrApp No. 303 of 2014; mentioned

Charles Williams v. C.O.P., MCCrApp No. 57 of 2021 distinguished

David Moss v. Commissioner of Police, MCCrApp No. 74 of 2021; mentioned

Decarla Bullard v. C.O.P., MCCrApp No. 65 of 2018; considered

Eric Anthony Delancy v. C.O.P., MCCrApp No. 236 of 2017; considered

Karchav v. Commissioner of Police, MCCrApp No. 56 of 2015; considered

Pericles A. Maillis v. Director of Public Prosecutions, MCCrApp No. 92 of 2021; mentioned Suculoo Samuel Miller v. Commissioner of Police, MCCrApp No. 91 of 2020; considered Ziyang Li et al v. C.O.P., MCCrApp No. 175 of 2019; considered

APPEARANCES:

The Appellant pro se

Ms. Erica Kemp for the Respondent

REASONS FOR DECISION
Decision delivered by The Hon. Madam Justice Crane-Scott, JA
Introduction
1

The intended appellant appeared before a Freeport Magistrate on 12 March 2021 and was arraigned and pled guilty to 2 Firearms offences contrary to the Firearms Act, Ch. 213 and 1 offence contrary to the Dangerous Drugs Act, Ch. 228. After he had accepted the Prosecutor's outline of facts, he was convicted by the Magistrate, after which his attorney-at — law made a plea in mitigation of sentence.

2

He was then sentenced as follows:

  • i. Count (1) — Possession of unlicense (sic) firearm with intent to supply — 3 years imprisonment;

  • ii. Count (2) — Possession of ammunition — A fine of $2,000. 00 or 1 additional year at BDOCS to run consecutively; and

  • iii. Count (3) — Possession of Dangerous Drugs with intent to supply — a fine of $2,000. 00 or 1 additional year at BDOCS to run concurrently. [Emphasis added]

3

On 16 August 2021, whilst serving his sentences at the Bahamas Department of Correctional Services, he completed Criminal Appeal Forms 1 and 2 signaling his intention to appeal against his convictions and sentences and seeking the grant of an extension of time within which to appeal. Though the forms were ostensibly completed on 16 August 2021, they were, however, not lodged at the Court of Appeal until 7 September 2021 as clearly appears on the Registry date-stamp appearing on the original forms in the Court file.

The Extension of Time Application
4

As is well known, the statute law of The Bahamas mandates that a person who wishes to appeal a decision of a Magistrate must do so within 7 days after the day upon which the decision was given. If the statutory deadline is not met, the person aggrieved by the Magistrate's decision may nonetheless invoke the jurisdiction of the appellate court to extend the time within which to appeal. Sub-section 235(2) of the Criminal Procedure Code Act (“the CPC”) states:

“(2) An appellant, within seven days after the day upon which the decision was given from which the appeal is made, shall serve a notice in writing, signed by the appellant, or his counsel, on the other party or his counsel and on the magistrate's court of his intention to appeal and of the general grounds of his appeal:

Provided that the person aggrieved by the decision of a magistrate's court may upon notice to the other party or his counsel apply to the court to which an appeal from such decision lies, for leave to extend the time within which such notice of appeal prescribed by this subsection may be served, and the court upon the hearing such application may extend such time as it deems fit.” [Emphasis added]

5

The relevant provisions governing, inter alia, the institution of criminal appeals (whether from the Supreme Court, Magistrates Court or Courts-Martial) including the filing of applications for leave to appeal; or for an extension of time within which to appeal, are located in Part III of the Court of Appeal Rules, 2005. Rule 36 identifies the relevant prescribed forms (i.e. Criminal Forms 1 and 2) to be used which are found in Appendix B to the Rules.

6

In keeping with longstanding practice in the Court of Appeal, in addition to the prescribed forms, applicants seeking leave to appeal or an extension of time within which to appeal, must also file, an affidavit-in-support laying out facts directed to each of the 4 factors which the Court will consider on such applications. In particular, the supporting affidavit must explain the reasons for the delay and assert the applicant's belief that the grounds of the intended appeal have good prospects of success.

7

A supporting affidavit is required because, as is well established, when considering whether to grant an extension of time, the Court of Appeal will, in the exercise of its discretion, consider 4 factors, namely: (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospects of success of the intended appeal; and (iv) the prejudice, if any, to the Crown. See Attorney-General v. Omar Chisholm, MCCrApp No. 303 of 2014. Occasionally, where the Crown opposes an extension of time application, it may find it prudent to file an affidavit-in — response for the purpose of rebutting the applicant's assertions of fact and putting relevant facts before the Court. Unquestionably, affidavit evidence plays a critical role in assisting the Court in the exercise of its discretion.

8

On 16 November 2021, the intended appellant filed Amended Grounds of Appeal setting out grounds of appeal against conviction and sentence. The intended grounds of appeal are as follows:

1. “That some specific illegality or irregularity occurred in the trial that ultimately affected the fairness of the trial and the safety of the conviction, that is

i. The (sic) I pleaded guilty under duress and my plea was not unequivocal and was...

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