Wilkie Arthur

Freelance Court Correspondent

#TurksandCaicos, March 21, 2024 – The Hon. Court of Appeal Justices minced no words in strongly criticizing the former Chief Justice of the Turks and Caicos Islands, Ms. Margaret Ramsey Hale, who now holds the same office in the Cayman Islands; her Ladyship TCI Justice, Mrs. Tanya Lobban Jackson; and the newly appointed Justice of the TCI, Mr. Chris Selochan, for not sending all firearm and ammunition offenders straight to prison.

In part one of this landmark decision, we only touched on how the Court of Appeal said all visitors and/or tourists must go to prison just like any other convicted firearms or ammunition offender. What is more severe is that the court of appeals said in its judgement handed down on February 29 that our TCI firearm ordinance doesn’t only make provisions for all persons to go to prison even if the learned judge finds exceptional circumstances, but also that, an additional fine and, in default, more prison time must also be imposed on each convicted offender, whether exceptional circumstances were found or not.

Our news reporters, including this writer, were contacted over the past week by several individuals and asked the questions, so that means our TCI judges and the former CJ that left were discriminating against locals by sentencing most locals straight to jail. Even when attorneys ask for exceptional circumstances for their local clients, it’s mostly refused, but for the visitors or tourists, it’s like automatic for them.

Someone else said, I must admit, this issue, which was a cry of the people,  was raised in the House of Assembly by Hon. Jameka Williams, a PNPappointed member. We never voted her in, but she sure was moved by the hearts of people to raise this very concerning matter in the house. The Honourable Attorney General did respond by saying that this Attorney General reference was in the works to be heard by the court of appeals. We are aware of the cry. The Hon. AG said she sought permission from the government to take this matter to the court of appeals, and the government said yes.

A male who has completed his full firearm and ammunition sentence of the then seven years mandatory minimum said that my lawyer begged the court for exceptional circumstances in my case. When I read the case law judgement of the court of appeals,. Some of the tourist cases the judges found are exactly the same in comparison to the local cases. In the judgement, the court of appeals found no difference between some of the local cases and the tourist cases. In my view, those judges acted in clear discrimination against the locals, and something must be done with them for that blatant unfairness and disrespect for the local people of the Turks and Caicos Islands. They were wrong all along. He asked, What happens to judges when they do things like that to people, man?

In the very detailed judgment, it clearly spells out rules, guidelines, and references to many local and international firearm and ammunition cases.

Here are some of the principles:

PRINCIPLES GOVERNING APPELLATE COURTS IN SENTENCING APPEALS

As drawn to our attention by Mr. Smith K.C., the authors in Archbold Criminal Pleading Evidence and Practice 2024 Ed. set out certain principles that guide the Court of Appeal in its review of sentences imposed by lower courts. At paragraphs 7-135, the following are the circumstances under which the court will interfere. The categories are not exhaustive:

“(a) where the sentence is not justified by law, in which case it will interfere not as a matter of discretion but of law;

(b) where sentence has been passed on the wrong factual basis;

(c) where some matter has been improperly taken into account or there is some fresh matter to be taken into account;

(d) where there has been a failure to honour a legitimate expectation; or

(e) where the sentence was wrong in principle or manifestly excessive.”

They further stated in paragraph…

“…the court will not interfere with the discretion of the sentencing court merely on the ground that it might have passed a somewhat different sentence.

In the local TCI case of Jim Kelly Josephs, this court cited with approval the following observation of Lord Chief Justice Woolf.

“The policy which led the Parliament in England to amend the Firearm Act to provide for mandatory minimum sentence applies with equal force to the reason why the Legislature in Turks and Caicos Islands amended the provision of the Firearm Ordinance to provide for a mandatory minimum of seven years’ imprisonment.”

Also in another local case of Stan Forbes v. Regina (CR-AP 6 of 2019) {2020] TCACA 9 (delivered on January 30, 2020), this Court explained further the legislative policy rationale for the mandatory minimum sentence of 7 years (before it was further raised to 12 years in 2022).

“The upsurge in offences involving the use of firearms in the Turks and Caicos may very well be at the root of the policy, which led to the Legislature amending the Firearm Ordinance to. require the courts to impose a mandatory minimum sentence. The statement by Lord Woolfe [in Lehman & Weep] that the mere possession of a firearm can create dangers for the public applies with equal or greater force in the Turks and Caicos Islands. It must be remembered that the economies of these islands depend on tourism and international business. The use of firearms will’ create a danger to the economy. This may be the reason why the Legislature said that offences against Section 3(1) and/or (2) are punishable by mandatory terms of imprisonment.” [emphass added]

DAYID CARROL O’CONNOR

The facts as narrated in the judgment by the learned judge are recited below.

The defendant is an American tourist who has been a visitor to the Turks and Caicos Islands for the past 12 years. He is a business owner, firearms instructor, and licensed firearm holder in three (3) of the United States, namely New York, Utah, and Florida.

On March 25, 2023, the defendant was at the Providenciales International Airport preparing to board a flight to return to the United States, where he resides, when a security screen of his backpack, using an x-ray screener, revealed a bag within containing forty-four (44) rounds of ammunition. The police were alerted, and Mr. O’Conner was arrested and interviewed on suspicion of unlawful possession of ammunition.

During his interview, the defendant said that he did not check that bag because he doesn’t use it to go to the shooting range and that it was “clearly an accident that there was ammo in that bag.” He went on further to say that he did not see the ammo until it was pulled out by security at the airport. And that “only a fool would try to knowingly bring ammunition onto an airplane.”

When asked in the said interview if he had anything he wished to say to the police in regard to the allegation, the defendant said, “I have been travelling for 25 years, and I have never intentionally disrespected a country’s culture, rules, or laws. And I had no intent to break any in Turks and Caicos. And additionally, in those 25 years of traveling, I have never had any trouble in any place I have visited.”

Mr. O’Connor had pleaded guilty to being in possession of the 44 rounds of 9 mm, hollow- point ammunition without being licensed to possess such ammunition.

The learned judge gave these reasons:

Having taken a holistic approach as outlined in the case of R.Y. Rehman and Wood, I consider that:

(i) the defendant had lawfully acquired the ammunition in the United States where he resides and is a licensed firearms holder in 3 states. (copies of the licenses were produced to the court.)

(ii) the Defendant did not possess the ammunition with any criminal intent,

(iii) the defendant had not been previously convicted of any offence under the Ordinance.

(iv) the public interest in preventing the unlawful possession or use of the subject matter of the charge would be served by the imposition of a lesser sentence.

Having regard to the quantity of ammunition, she decided that the appropriate sentence was a fine with a starting point of $10,000. The defendant was given a full discount for a plea of guilty at the earliest opportunity, which reduced the fine to $6,670. Taking into account his previous good character, the fine was further reduced to $5,670 to be paid forthwith or serve a term of 90 days’ imprisonment in default.

The imposition of a fine without a custodial sentence was wrong in principle and therefore unlawful.

Madam Attorney General submitted that in Jude Denejour v. R. (CR-AP 8 of 2021) [2022] TCACA 9, the matters taken into account were similar to this case, and Lobban-Jackson found in that case that they did not constitute exceptional circumstances with which this could be agreed. The learned judge did not state what she took into account to distinguish the two cases, and so it is not possible to say that she was clearly wrong.

One difference appears to be that Mr. O’Conner was a visiting tourist and Mr. Denejour had lived in Turks & Caicos for over 21 years, during which time he had never run afoul of the law. If that was a factor taken into consideration, it does seem to us that one set of circumstances cannot be exceptional by virtue only of the fact that the offender is a visiting tourist, and the same or similar facts are not exceptional for a resident. Exceptional circumstances cannot be a static term; what are exceptional circumstances today may not be exceptional circumstances tomorrow as they become more commonplace, for example, if the frequency of the occurrence in similar circumstances reaches a certain level. The courts must continue to be alive to this possibility.

In making her determination in this case, the learned judge appears to have correctly asked the four questions set out in R. v. Avis 11998 [2 Cr. App. R. (S.) 178], namely: (a) what sort of weapon was involved? (b) What use, if any, was made of it? (c) with what intention did the defendant possess it? (d) What is the defendant’s record? (See, for example, R. v. Mccleary [20141 EWCA Crim 302 at 111]). Also, she did not mention any record of the offender.

The offender had 5 character reference letters, and substantial personal mitigation. I cannot say that she was clearly wrong in finding exceptional circumstances.

However, in deciding on the sentence, the learned judge took into account item (iv), where she stated.

“1 consider that (iv) The Public interest in preventing the unlawful possession or use of the subject matter of the charge would be served by the imposition of a lesser sentence.”

That consideration is provided for in s. 30(3)(b) when the court is considering whether a term less than the mandatory minimum is just in all the circumstances. On the facts of this case, it is counter-intuitive that the public interest in preventing the unlawful use of firearms would be served by the imposition of a lesser sentence. In the absence of reasons under this head, it is not possible for an appellate court to determine whether or not a judge exercised his or her discretion properly or at all.

The imposition of a fine was clearly wrong in principle, with the inevitable result that the sentence was too lenient. However, using the correct test, it is not possible to say that the judge was clearly wrong in finding exceptional circumstances

ALEX GUZMAN

The facts briefly state that on Tuesday, April 25, 2023, Mr. Guzman proceeded to the JetBlue counter at the Providenciales International Airport to check in for his flight to the United States. He declared to the customer representative that he was in possession of a firearm and ammunition and wanted authorization from the airline to travel on his return journey to the United States with the firearm. This was in keeping with the circumstances under which he entered the TCI with the firearms that were afforded to him by Delta Airlines. The defendant was charged with possession of a firearm and ammunition, to which he pleaded guilty.

The following facts about Guzman’s circumstances were not disputed: (i) At the port of embarkation in the United States, the defendant was granted authorization (though erroneously) by Delta Airline and assured that it was legal for him to travel to the Turks and Caicos Islands with the firearm and ammunition. (ii) He at no time tried concealing the presence of the firearm and ammunition, and upon departure, in good faith, he approached JetBlue Airlines to declare the firearm and 17 rounds of ammunition, seeking permission to take them back in the manner in which he brought them into the TCI. (iii) There was no criminal intent on his part. He admitted being in possession of the firearm for his protection.

The court found exceptional circumstances based on the above facts and fined the offender $3500. The Avis questions were not asked, nor was consideration given to s. 30(3), namely, “(a) whether the offender has a previous conviction for an offence under the Ordinance, and (b) whether the public interest in preventing the unlawful possession, use, manufacture, transfer, sale, or acquisition of firearms would be served by the imposition of the lesser sentence.”

We are unable to say that the judge was clearly wrong in forming an opinion that there were exceptional circumstances.

The judge did not consider all that he ought to have in deciding on the appropriate sentence. In any event, even in this case, a non-custodial sentence was wrong in principle. However, it is clear that the judge would have had to consider whether Jiat was the appropriate term in the circumstances.

MIKEY WILLIAMS

The brief facts are that on Sunday, January 16, 2022, about I:08 a.m., police officers were off duty at the Chalkies Sports Bar located on South Dock Road, Providenciales, TCI. While in the parking lot, they heard several loud explosions sounding like gunshots. They ran towards the sounds. On their way, they saw a male running from the direction where the explosions originated. The male was holding on the right side of his waist what appeared to be a bulky black object. An officer then searched the male, and while searching the waist area on the right side, the male pulled out a black handgun and shouted “block 19 hot.”. He was arrested for the offence of carrying a suspected unlicensed firearm and cautioned. He made no reply. Eight (8) rounds of 9mm ammunition were found in the magazine to be inserted in the firearm, and one (1) round of 9mm ammunition was found in the chamber of the firearm. The police officer informed him of the offense of carrying ammunition, cautioned him, and arrested him on suspicion of the said offence. He replied

”The firearm is not mine I saw somebody drop when they were jumping the fence, and I picked it up.”

After a plea of guilty, the court sentenced him to 3 years imprisonment, suspended for 2 years. It was unclear how the learned judge decided that there were exceptional circumstances, but this seems to be a case where the learned judge was clearly wrong in finding exceptional circumstances.

The judge was therefore wrong not to impose the minimum mandatory sentence. In addition, the Attorney General correctly submitted, as determined by this court in the AG’s Reference No. 1 of 2017 [2018] TCACA 2, that there is no power under the Suspended Sentence Ordinance CAP 3.04 to suspend the 3 years’ sentence. A suspended sentence can only be applied to terms of not more than 2 years. Therefore, the sentence was unlawful on that ground as well.

ALEC KEITH NASH

The defendant was a 36-year-old resident of Kentucky in the United States of America. He left his home to fly to TCI to vacation with his girlfriend. Upon checking in with American Airlines in Kentucky, he declared that he had in his possession a firearm and twenty (20) rounds of ammunition, which he showed to the airline representative.

Rather than advising the defendant that he could not travel to TCI with these items, the representative completed a declaration ticket, which the defendant signed. The defendant was then advised that upon arrival at the TCI, he would be required to speak with a representative since he would have to collect his bag from a different area. It was not disputed that the defendant was in lawful possession of the firearm and ammunition in his home state.

The defendant subsequently entered TCI lawfully via the international airport in Providenciales on an American Airlines flight. The defendant had a conversation with a representative of American Airlines and advised the representative that he had a firearm in his bag and asked where he could collect it. The representative checked the system and advised the Defendant that the bag could be collected on normal luggage

The defendant collected the bag and left the airport. He remained in Providenciales on vacation until July 17, 2023 (4 days). During this time, the firearm and ammunition were stored in a box in the safe of his hotel room.

On July 17, 2023, the defendant went to the international airport in Providenciales to return to the United States of America and advised an American Airlines representative that he had a firearm and ammunition in his bag. It was at this point that the relevant authorities were alerted, and the defendant was arrested and subsequently charged with the offences of possession of a firearm and ammunition. He was charged under s.3(1) in relation to possession of an Elite SG 9mm pistol and under s.3(2) in relation to twenty (20) SIG SAUER 9mm rounds of ammunition and pleaded guilty.

MICHAEL GRIMM

The undisputed facts were that on August 1, 2023, the defendant, a resident of Indiana in the United States of America, was at the airport in Providenciales, TCI, to board an aircraft to take him to Atlanta, Georgia, United States of America. He was visiting the TCI on vacation. Prior to boarding a Delta Airlines aircraft, his luggage was scanned, and items appearing to be rounds of ammunition were detected. A search of his luggage was then conducted, and one black magazine containing twenty (20) 9mm hollow point rounds of ammunition was found. Later that day, the defendant admitted that the magazine and ammunition belonged to him and were in his possession. He pleaded guilty.

DISPOSITION

The court takes judicial notice that the use of unlicensed firearms is wreaking havoc by facilitating the explosion of murders and other firearms related crimes in the Turks and Caicos Islands.

Apart from the outrage sparked by the public, it is having untold adverse effects on important sectors of the nation’s economy, like tourism, for example, where because of the gun related crime, advisories are being issued by some countries warning their citizens of the dangers of vacationing in the TCI . It is also having an adverse effect on the public order, safety, security, and peace of mind of its people. In response and as a means of deterrence, the Turks and Caicos Islands Parliament has increased the minimum mandatory sentence for possession of an unlicensed firearm 3 times in the last 13 years, first to 5 years in the 2010 Ordinance, then to 7 years in the 2018 Ordinance, and now to 12 years imprisonment in the 2022 Ordinance.

Parliament could not have made its intention at deterrence clearer. If, in the Turks and Caicos Islands, a person is convicted of being found in possession of an unlicensed firearm, the offender will receive a term of imprisonment and may have to pay a fine as well. This provision has broken the mold of a sentence of imprisonment or a fine in lieu thereof. The judge may have discretion over the term of imprisonment imposed and the amount of the fine if he or she finds that there were exceptional circumstances relating to the offender or in relation to the offence, but that the offender must receive a custodial sentence is certain.

Parliament has made its intention of sending a message of deterrence clear by removing the power to grant bail from the magistrates and reposing it in the Supreme Court. So notice to the world is given that since 2010, the offender in an unlawful firearms case cannot get bail from a magistrate’s court, will serve a term of imprisonment and pay a fine. Unless and until it is changed, that is the law as it presently stands in the Turks and Caicos Islands.

We endorse the recommendations made to the TCI authorities by Selochan J. at paragraph 60 and 61 of his judgment in Nash in relation to publicising the TCI law in this regard, as well as his warning concerning foreign nationals who visit the TCI as tourists, not to assume that if they are found in possession of unlawful firearms, they will automatically fall into the category of “exceptional circumstances.”

“The Court finds it necessary to repeat what was said in paras 89 and 90 of the judgment of Jim Kelly Joseph v. R, CR-AP 18/18 where the Court said:

“Those who contravene the Firearms Act must, for the good of society, whatever the consequences are to their family, expect to receive the minimum sentence from Parliament. Judges must not feel sorrow or sympathy for any offender. The protection of the public demands nothing less than the imposition of minimum sentences. It is only in exceptional circumstances of the hind that have occurred in this case, rare as it is, that the court can exercise a degree of mercy”. [emphasis added]

For the reasons stated, the judges in the subject cases had no jurisdiction to impose non- custodial sentences. Sending a message of deterrence required that any leniency shown when having regard to mitigating circumstances must be reflected in the length of incarceration imposed, however short, and in the quantum of the fine, however small. All of the sentences that imposed a fine were wrong in principle.

The learned judges fell into error by using R v. Aloysius Ebner CR 45/19 as a precedent when none of the issues occurring in these eases were thoroughly ventilated in that case and the effect of s. 30 was not thoroughly considered.

For the reasons set out in this decision, Aloysius Ebner was wrongly decided. firearms will’ create a danger to the economy. This may be the reason why the Legislature said that offences against Section 3(1) and/or (2) are punishable by mandatory terms of imprisonment.”