Court of Appeal certifies application of Mandatory Minimum Firearms Sentences  

#TurksandCaicos, May 2, 2024

Section 3(3) of the Firearms Ordinance CAP 18.09 requires the Supreme Court to impose a mandatory minimum sentence and a fine for certain firearms offences, except in circumstances where the court finds that there are exceptional circumstances, in which case the court must still impose both a sentence of imprisonment and a fine but which are proportionality consistent with the exceptional circumstances.  The court must ensure that the custodial sentence and fine are in keeping with the dominant purpose of Parliament in enacting the law, deterrence, is reflected in the length of the term and the quantum of the fine.

The Firearms Ordinance applies to all persons present within the Turks and Caicos Islands, regardless of status or origin.  The Parliament of the Turks and Caicos Islands had amended the Ordinance in 2022 to stiffen the penalty for possession and use of firearms with the stated intention of deterring such crimes in the Islands.

In five separate cases within a two-year period the Supreme Court found that there were exceptional circumstances, and only imposed fines.  In those cases, the defendant pleaded guilty to charges of possession of an unlicensed firearm and ammunition under the Firearms Ordinance. The judges found that there were “exceptional circumstances” and concluded that sentencing was therefore at large. Four of the offenders were fined and one was given a custodial sentence below the mandatory minimum. The opinion of the Court of Appeal, the higher court, was sought to confirm the true position of the law.

At the request of the then Learned Director of Public Prosecutions, Mr. Eugene Otuonye KC, and instructed by the Cabinet of the Turks and Caicos Islands, Attorney General, Honourable Rhondalee Braithwaite Knowles OBE KC, applied to the Court of Appeal seeking clarification as to whether the facts of those cases did actually constitute exceptional circumstances in keeping with legal principles and whether, in any event the Ordinance allowed the Supreme Court to impose non-custodial sentences.

The decision handed down by the Court of Appeal clarified the law, certifying that where exceptional circumstances exist the court has no jurisdiction to impose a non-custodial sentence.  It can impose a custodial sentence for a term and a fine in a quantum that is fair and just in the circumstances, consistent with the exceptional circumstances and having regard to the dominant purpose of Parliament in enacting the law.

However, it must give its reasons for so doing so, including any reduction in sentence.

Acting Director of Public Prosecutions, Dr. Angela Brooks welcomed the certification by the Court of Appeal and confirmed that since the recent amendments to the Firearms Ordinance, 8 firearms and ammunition prosecutions in total were done involving tourists from the United States, 3 of which are currently before the court with each of the defendants on bail.