The Commissioner of Police v Botham
| Jurisdiction | Bahamas |
| Judge | Isaacs,.J.A.,Allen, P. |
| Judgment Date | 03 November 2015 |
| Neutral Citation | BS 2015 CA 135 |
| Docket Number | MCCrApp & CAIS No. 134 of 2015 |
| Court | Court of Appeal (Bahamas) |
| Date | 03 November 2015 |
Court of Appeal
Allen, P.; Isaacs, J.A.; Crane-Scott, J.A.
MCCrApp & CAIS No. 134 of 2015
Ms. Cordell Frazer with Mr. David Cash, counsel for the appellant.
Mr. Kwasi Thompson, counsel for the respondent.
Attorney General's Reference No. 4 of 1989 11 Cr. App. R. (S) 517 mentioned
Attorney General's Reference Nos. 31, 42, 43, 45, 50 & 51 of 2003 mentioned
Attorney General's Reference No. 124 of 2001; R v. Davies E.W.C.A. [2002] Crim. 197 mentioned
Darryl Elmer Bartlett v. The Commissioner of Police MCCrApp & CAIS No. 36 of 2015 considered
Commissioner of Police v. Stevens Alcock Case No. 75/2013 considered
Dustin Taylor v. The Commissioner of Police MCCrAPP & CAIS No. 63 of 2014 followed
Galen Forbes v. The Commissioner of Police MCCrApp & CAIS No. 10 of 2013 followed
Kalaiarasi d/o Marimuthu Innasimuthu v. Public Prosecutor [2012] SGHC 58 applied
Kevin Cooper v. The Commissioner of Police MCCrApp & CAIS No. 318 of 2013 followed
R v. Richard George Campbell Criminal Appeal No. 30 of 2004 considered
Raphael Neymour v. R SCCrApp No. 172 of 2010 considered
Criminal Practice and Procedure - Possession of a firearm — Possession of ammunition with intent to supply — Appeal against sentence — Whether the sentence passed was such that a magistrate viewing the circumstances reasonably could not properly have so decided — Whether the magistrate erred in considering that an accused's contribution to the economy was a mitigating factor — Undue leniency — Whether the sentence was unduly lenient — Whether the Court should increase a sentence imposed on the accused person — Consideration of R v. Richard George Campbell Criminal Appeal No. 30 of 2004; Raphael Neymour v. R SCCrApp No. 172 of 2010 and Darryl Elmer Bartlett v. The Commissioner of Police MCCrimpp & CAIS No. 36 of 2015 — Deterrence as main factor governing a sentencer's consideration when sentencing to an accused person in possession of a firearm — Consideration of Galen Forbes v. The Commissioner of Police MCCrApp & CAIS N. 10 of 2013 and Kevin Cooper v. The Commissioner of Police MCCrApp & CAIS No. 318 of 2013 — Guidance to lower courts on sentencing for firearms offences — Consideration of Dustin Taylor v. The Commissioner of Police MCCrApp & CAIS No. 63 of 2014 — Whether the magistrate paid sufficient regard to those matters going to the seriousness of the offences — Whether the magistrate erred in principle when it purported to invoke section 209 of the Criminal Procedure Code in this case and this led to its decision not to convict and to conditionally discharge the respondent — Whether the decision of the magistrate was unreasonable and could not properly have so decided — Payments ordered — Whether the order directing that the Respondent make a financial donation to different charities was made without jurisdiction and out with the sentencing powers of the magistrate — Parity of treatment — Consideration of Commissioner of Police v. Stevens Alcock Case No. 75 of 2013 — Appeal allowed — Finding that the decision of the magistrate was unreasonable and could not have properly decided — Finding that the Respondent was sentenced to three years' imprisonment for possession of an unlicensed firearm — Finding that the Respondent was sentenced to five years' imprisonment for possession of ammunition with intent to supply — Sections 14 and 15 of the Court of Appeal Act — Sections 7, 115 and 209 of the Criminal Procedure Code.
Officers, armed with a search warrant, descended on the home of the respondent on 25 June 2012. Their search revealed a .9mm hand gun and 392 live rounds of ammunition. The four people home at the time the contraband was found were all arrested and arraigned before the Magistrate's Court shortly thereafter. They all plead not guilty. As their prosecution was about to call its last witness the respondent indicated that he wished to change his plea. At that time the charges were read to him, he plead guilty to both counts, the charges against the other three persons were withdrawn and the matter was adjourned for continuation. On the adjourned date, counsel for the respondent made a plea in mitigation and called a character witness. As a result, on 23 June 2015, he was granted a discharge on the conditions that he make payments of $3,500 to the Grand Bahama Home for the Aged, $6,500 to the Good Samaritan Home in New Providence, that he keep the peace and that he be of good behaviour for two years, failure of which would result in an eighteen months custodial sentence.
The appellant appealed on the ground that the decision of the magistrate was unreasonable and she could not have properly so decided. In support of its submission that the magistrate's decision was unreasonable the respondent invited the Court to have regard to the late entry of the guilty plea, the large amount of ammunition involved, the principle of deterrence and the age of the respondent.
In response, counsel for the respondent submits that the sentence imposed was within the range prescribed by law, that the magistrate properly considered the aggravating and mitigating factors at the time she imposed the conditional discharge, the power to interfere with a magistrate's sentencing discretion should be used sparingly, leniency is not sufficient to justify interference, rather the sentence must be made based on an error in principle resulting in undue leniency and the magistrate was right to consider the public interest when determining the appropriateness of a custodial sentence.
Held: appeal allowed. Respondent convicted and sentenced to three years' imprisonment for the offence of possession of an unlicensed firearm and five years' imprisonment for the offence of possession of ammunition with intent to supply. Sentences to run concurrently from the date the respondent surrenders or is reduced into custody.
As a result of the finding by this Court that the magistrate's decision was unreasonable and thereby allowing the appeal, the Court was bound to convict the respondent and sentence him accordingly.
While a magistrate is entitled to pass any sentence authorised by law in respect of offences for which a person is convicted, in the present case the magistrate's decision to conditionally discharge the respondent failed to give regard to the effect of the Firearms (Amendment) Act, 2014. That Act evidenced the disposition of Parliament towards firearms related offences. She also failed to give due consideration to a fundamental sentencing principle, namely, deterrence and the seriousness of the offences.
The money ordered to be paid, and already paid, to the charities was made without jurisdiction and ought to be returned to the respondent.
Pursuant to section 14 of the Court of Appeal Act (the CAA) the appellant appealed the decision of Chief Magistrate Joyann Ferguson-Pratt (the Chief Magistrate) made on 23 June 2015 to grant the respondent a conditional discharge. He had faced charges of Possession of an Unlicensed Firearm, contrary to section 5(b) of the Firearm Amendment Act, 2011 (the Act) and Possession of Ammunition With Intent to Supply, contrary to section 9(a)(2)(b) [the section is 9A(2)(b)] of the Act; and had pleaded guilty.
On 17 September 2015 we heard the submissions of counsel and reserved our decision. We are satisfied that this appeal must succeed for the reasons which follow.
On 25 June 2012 around 5:00p.m., a team of police officers armed with a search warrant for house No. 1 Bay shore Road, off Midshipman Road, and Red Beard Restaurant and Bar situated on King Road descended on the respondent's residence. On their arrival there they met the respondent and his wife in a truck in the driveway. After D/Cpl. 2467 Williams identified himself to the respondent, he and the other officers followed the Bothams into the residence.
The officers encountered John Botham and Amber Degregory in the foyer of the residence. The respondent said to the officers, “Don't tear my house apart” and he pointed to an area behind a sofa in the room that he said was his computer and T.V. room. The officers found a red and yellow box there that was resting on the floor. The box had a black .9mm hand gun on top of it. They also found 392 live rounds of .9mm ammunition in boxes lying on the floor. D/Cpl. Williams placed all of the persons under arrest.
On 27 June 2012 the respondent appeared with his co-accused before the Chief Magistrate to be arraigned on the above-mentioned charges. He and his co-accused pleaded not guilty and the matter was adjourned to a date for trial. The case proceeded with several adjournments intervening. On the adjourned date of 15 May 2015 when the prosecution was about to call their last witness the respondent's counsel indicated to the Chief Magistrate that the respondent wished to change his plea to guilty. The charges were read to him and he did plead guilty to both counts. Thereupon, the prosecution withdrew the charges against his co-accused; and the case was adjourned further to 22 June 2015 for continuation.
On 22 June 2015 the matter was again adjourned to the following day. On 23 June 2015 counsel for the respondent made a plea in mitigation and called a character witness. The Chief Magistrate granted the respondent a conditional discharge, directing payments be made to charities in Grand Bahama and New Providence and further, ordering him to enter into a recognizance to keep the peace and be of good behaviour for two years on pain of an eighteen month custodial sentence. She advised the respondent of his right of appeal. As it transpired, it was not he who exercised that right.
The appellant filed a Notice of Motion to Appeal Against Sentence on 1 July 2015 stating as their grounds of appeal:
“1. That the sentence passed...
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