Ronald Ralph Moorhead Jr. v The Commissioner of Police

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 26 September 2022
• Neutral Citation: BS 2022 CA 129
• Docket Number: MCCrApp. No. 90 of 2022
• Court: Court of Appeal (Bahamas)
• Year: 2022

Between

Ronald Ralph Moorhead Jr.

Appellant

and

The Commissioner of Police

Respondent

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Sir Brian Moree, JA

MCCrApp. No. 90 of 2022

IN THE COURT OF APPEAL

Criminal appeal — Possession of an unlicensed firearm — Possession of ammunition — Appeal against sentence — Appellant with medical condition — Bahamas Department of Correctional Services unable to manage and treat the appellant's medical condition — Article 17 of the Constitution — Section 2 of the Abolition of Mandatory Minimum Sentences Act — Sections 5 & 9 of the Firearms Act — Section 15 of the Court of Appeal Act

A .380 pistol and 5 live rounds of ammunition were found in the appellant's checked luggage as he was attempting to depart the Leonard Thompson Airport in Marsh Harbour, Abaco. The appellant is an American citizen and is the holder of a firearm permit, issued in the United States, which authorizes him to possess the same. The police were notified, and the appellant was arrested and charged with the offences of possession of unlicensed firearm and possession of ammunition. Upon his guilty plea, the appellant was convicted and sentenced to one year imprisonment on each count, to run concurrently.

The appellant appeals the severity of his sentence. He spent three days in custody before he applied for and was granted bail pending appeal. The basis of his bail pending appeal application was his medical condition. His application was supported by an affidavit which outlined his medical condition, and an affidavit of the Acting Commissioner of the Bahamas Department of Correctional Services (BDOCS) which outlined BDOCS' inability to manage and treat the appellant's medical condition.

Held: Appeal allowed. Sentences quashed; sentence of three days imprisonment substituted on each count.

Sections 5(b) and 9(2)(a) of the Firearms Act, as amended, provide a term of imprisonment on summary conviction of 12 months to 10 years. By virtue of the Abolition of Mandatory Minimum Sentences Act, however, there is no minimum sentence attached to an offence against those sections of the Firearms Act. It appears that the Magistrate was influenced by her view that 12 months was the lowest sentence she could impose. Having regard to the Abolition of Mandatory Minimum Sentences Act the Magistrate erred in principle in sentencing the appellant to 12 months' imprisonment on each count.

This is an unusual case. BDOCS has informed the Court that it does not have the resources or manpower to adequately treat and care for the appellant given his particular requirements to manage his diabetic condition. The appellant has no antecedents and pleaded guilty early. Bearing this in mind, the Court finds that the sentences are unduly severe as a magistrate, properly advised of all the circumstances surrounding the commission of the offence as well as the peculiar medical circumstances of this particular offender, would have been driven to impose a lesser custodial sentence.

Counsel for the appellant urged the Court to vary the sentences to time served, that is, the three days the appellant spend in custody before being released on bail. Counsel for the respondent advised the Court that, in the circumstances of this case, three days was appropriate. The Court is satisfied that although short and bordering on the realm of unduly lenient, the time suggested is appropriate given the peculiar circumstances of this case. This decision turns on its own peculiar facts and circumstances and it should be viewed in that narrow context.

Birkett v James [1978] AC 297 mentioned

Caryn Moss v Director of Public Prosecutions and Director of Public Prosecutions v Caryn Moss SCCrApp. No. 230 of 2018 mentioned

Commissioner of Police v La Jewel Harbin (2022) unreported distinguished

Commissioner of Police v Matthew Wolcott (2017) unreported distinguished

Commissioner of Police v Timothy Hyde (2021) unreported distinguished

Director of Public Prosecutions v Pericles A. Maillis MCCrApp. No. 92 of 2020 considered

Karchav v The Commisssioner of Police MCCrApp. No. 56 of 2015 considered

Prince Hepburn v. Regina SCCrApp. No. 79 of 2013 considered

Taylor v Commissioner of Police [2015] 2 BHS J. No. 52 considered

APPEARANCES:

Ms. Christina Galanos, Counsel for the Appellant

Ms. Stephanie Pintard, Counsel for the Respondent

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1 . On 21 June 2022, the appellant was convicted by Stipendiary & Circuit Magistrate Ancella Evans (“the Magistrate”) for the offences of possession of an unlicensed firearm, contrary to section 5B of the Firearms Act (“the Act”) and possession of ammunition, contrary to section 9(2)(a) of the Act; and sentenced that same day to one year imprisonment on each count; with the sentences running concurrently.

2 . The background to this appeal may be derived from the record provided by the Magistrate. She indicates in the particulars of the charges that on 21 June 2022, the appellant was found in possession of a black .380 Kel-Tec pistol S/N K2W99 not being the holder of a special license in the prescribed form from the licensing authority, authorizing him to possess the same; and being in possession of 5 .380 rounds of ammunition without the requisite firearms certificate. The appellant appeared before the Magistrate pro se and pled, “Guilty”, to both counts.

3 . The facts as recorded by the Magistrate and which were agreed by the appellant, are as follows:

“On the day and time in question, Sgt 3427 Bain contacted the Marsh Harbour Police Station and reported that a .380 pistol with 5 live rounds of ammunition was found inside a checked luggage at the Leonard Thompson Airport. Investigation revealed that the luggage belonged to an American citizen namely Ronald Moorehead, date of birth: 14 ^th February, 1969 at Atlanta, Georgia. Shortly thereafter, D/Insp Roxbury arrived at the Airport inspected the luggage in the presence of the defendant and questioned him in reference to an unlicensed firearm and possession of ammunition. He was taken to the Marsh Harbour Police Station. A Record of Interview was conducted by PC 4230 Pickstock. During which, the Defendant admitted to offence of stating he is the holder of a firearm permit issued in the U.S. authorizing him to possess the same. He has no antecedents.”

4 . The Magistrate provided an explanation for the sentences she imposed under the rubric “ Reasons”:

“The Defendant pleaded guilty and did not waste the court's time with a lengthy trial. The court notes that the Defendant is 53 years old and has a young son. As has been observed by the Court of Appeal in DPP v Pericles Maillis, for possession of an unlicensed firearm a custodial sentence is mandatory. Such sentences range from 12 months to 10 years according to law.

Taking into consideration all of the mitigating factors, such as the Defendant's early guilty plea and lack of criminal record, the sentence of 12 months is appropriate. The court notes the Defendant is wearing a pump for diabetes and insulin sensor.

The defendant is advised of his right to appeal within 7 days. Upon completion of his sentence, the Court recommends deportation.”

5 . On 24 June 2022, the appellant filed a Notice of Appeal indicating his desire to appeal his sentence on the following grounds:

• “(i) That the sentences passed were such that a magistrate viewing the circumstances reasonably could not have so decided;

• (ii) That the sentences were unduly severe;

• (iii) Any other ground that arises upon receipt of the complete record.”

6 . The appellant also applied for bail pending appeal citing extreme urgency due to his medical condition, to wit, he has Type I Diabetes. He explained at paragraphs 7–9 of his affidavit filed on 24 June 2022 that:

• “7. I have to constantly wear an insulin pod that I have to change every 36 hours. The pod contains 200 units of Hummalog fast acting insulin. My pancreas does not make any insulin at all. The pod that I presently have in place now expires on 24th June, 2022 at 5:18pm, which means that I will have to place another pod in at that time. If this isn't done, then I will need to start administering insulin to myself with a needle. Once the pod is off, I cannot eat anything unless I inject myself with insulin. I presently have four of these pods in my possession. As I said, each pod will last me approximately 36 hours. A copy of a picture of myself showing the placement of the insulin pod, which was taken by my Attorney, Ms. Christina Galanos on 23 ^rd June, 2022 at the Central Police Station is now produced and shown to me and is attached hereto and marked Exhibit E.

• 8. I also have to constantly wear a sensor on my left arm that detects my blood glucose levels at all times. Once I place my cell phone next to this sensor, my cell phone informs me what my sugar level is and from there, using my Omnipod, I am able to determine how much sugar I can eat at the time and how much insulin I would need in order to process whatever it is that I can eat. The Omnipod is wirelessly connected to the insulin pod in my stomach and I use it to administer the correct amount of insulin to myself periodically throughout the day. Copies of pictures of myself showing the placement of he said sensor my left arm and showing the said Omnipod are now produced and shown to me and are attached hereto and marked Exhibit F. These pictures were also taken by my Attorney on 23 ^rd June, 2022 at the Central Police Station.

• 9. I have had Type I Diabetes for the past 15 years and I have been connected to these devices for the past seven years. At least three times per week, while I am asleep, my sugar levels would sometimes get too low and my cell phone would sound off, which alerts my wife or son to quickly awake me and get the right amount of...