R v Ray K Smith - Sentence Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0086/2012 THE QUEEN V RAY KENNEDY SMITH Appearances: Ms. Candia James, Crown Counsel, on behalf of the DPP Ms. Prathna Bodden of Samson & McGrath on behalf of the Defendant Before: Honourable Mr. Justice Charles Quin Heard: 23rd January 2014 SENTENCE RULING

¶ [1] Following on a 3-day trial by Judge Alone the Defendant, on the 15th November 2013, was found guilty of Possession of an Unlicensed Firearm contrary to s.15 of the Firearms Law.

¶ [2] The particulars of the offence were that on the 31st July 2011 at West Bay, Grand Cayman, the Defendant, Ray Kennedy Smith, had in his possession a 9 mm Smith & Wesson model 5906 pistol. It was loaded with five (5) rounds of 9 mm ammunition. The Defendant did not have a Firearm User’s (Restricted) Licence and the firearm was found to be in an operable condition.

¶ [3] Section 15(5) of the Firearms Law states: "15 (5) Whoever contravenes this section is guilty of an offence and subject to section 39, is liable on conviction to a fine of one hundred thousand dollars and to imprisonment for twenty years."

¶ [4] Section 39 of the Firearms Law advises on minimum sentences as follows: "39 (1) This section applies where- a. an individual is convicted following a trial or a plea of guilty, by a court of summary jurisdiction or the Grand Court, of an offence under section 3(3), 15(5), or 18(6); b. the offence was committed on or after 15th November, 2005; and c. the offence is in respect of a machine gun, rifle, shotgun, pistol, or any lethal barrelled weapon from which any shot, bullet or other missile can be discharged. (2) Notwithstanding sections 6(2) and 8 of the Criminal Procedure Code (2006 Revision), the court of summary jurisdiction or the Grand Court before which the individual pleads guilty or is convicted shall- a. In a case where the individual pleads guilty, impose a sentence of imprisonment for a term of at least seven years (with or without a fine); or b. in any other case, impose a sentence of imprisonment for a term of at least ten years (with or without a fine.), unless the relevant court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so, and such exceptional circumstances shall be stated by the relevant court. (3) ......." THE CROWN'S SUBMISSIONS

¶ [5] The Crown refers the Court to \( R \) v. \( Avis \) [1998] 1 Cr. App. R. 420, CA, and the guidelines provided therein for sentencing in firearms cases. In \( Avis \) the Lord Chief Justice of England and Wales, Lord Bingham, stated that the sentencing Court should usually ask itself four questions: "1. What sort of weapon was involved? Genuine firearms were more dangerous than imitation firearms; loaded firearms were more dangerous than unloaded firearms. Unloaded firearms for which ammunition was available were more dangerous than firearms for which no ammunition was available. Possession of a firearm for which there was no lawful use (such as a sawn-off shotgun) would be viewed more seriously than possession of a firearm which was capable of lawful use. 2. What use had been made of the firearm? It was necessary for the court to take account of all the circumstances surrounding the use of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence was likely to be. 3. With what intention (if any) did the defendant possess or use the firearm? The most serious offences under the Act required proof of a specific intent. The more serious the act intended, the more serious the offence. 4. What was the defendant's record? The seriousness of any firearms offence was inevitably increased if the offender had an established record of committing firearms offences or crimes of violence."

¶ [6] In \( R \) v. \( Avis \) et al Lord Bingham went on to state: "Given the clear public need to discourage the unlawful possession and use of firearms both real and imitation, and the intention of Parliament expressed in a continuing increase in maximum penalties, the court should treat any offence against the provisions of the Firearms Act 1968 as amended, as serious."

¶ [7] The Cayman Islands Court of Appeal in the case of Chavarria-Atily v. R [2009] CILR 118 applied Lord Bingham’s dicta in R v. Avis et al. The Acting President Forte JA set out Lord Bingham’s guidelines and added the following words at paragraph 10 of his Judgment: "In the Cayman Islands, it has been the massive increase in offences under the Firearms Law that has led Parliament to enact the minimum sentences in respect of those offences, while at the same time making special provision for cases of exceptional circumstances. The mere possession of a firearm, even without any intention to use it for a criminal offence, can still be a danger to the public for the reason that it could get into the hands of someone who does have that intent."

¶ [8] In the case before this Court I follow the Court of Appeal in adopting Lord Bingham’s guidelines and ask myself the same questions. i. What sort of weapon was involved?: The Crown reminds the Court that the weapon, a 9mm Smith and Wesson pistol, was loaded with five (5) live rounds of ammunition and the firearm was found, by toolmark expert, Alan Greenspan, to be operable and a lethally barrelled firearm within the definition of the Firearms Law, that is, capable of causing death or serious injury if discharged with a projectile striking an individual. In addition Mr. Greenspan confirmed that the five 9 mm cartridges were viable and capable of causing death or serious injury if discharged at, and striking an individual. I remind myself that the Acting President of the Cayman Islands Court of Appeal, Forte JA, stated in Chavarria-Atily v. R: "The mere possession of a firearm, even without any intention to use it for a criminal offence, can still be a danger to the public."

¶ [9] What use was made of the firearm: The Crown concedes that there is no evidence of when or that the firearm was discharged and that the firearm was found by the police secreted behind the nightclub soon after the Defendant had returned from that area.

¶ [10] In relation to the Defendant’s intention in relation to his possession of the firearm: The Crown points to the fact that it is agreed that the Defendant does not have a Firearms Users (Restricted) Licence and therefore his possession of the pistol was unlawful. The Crown adds to that the pistol was found, loaded, after the Defendant had just returned from that area of the premises, along with gloves and a mask. The Crown submits that, finding these items alongside the pistol speaks to the intention to use the firearm, and refers to paragraph 153 of my Judgment which states: "Policemen and scenes of crime officers wear gloves so that there is no contamination on items found at the crime scene and to eliminate the possibility of DNA being transferred. Criminals wear gloves so that fingerprints and DNA don’t find their way on to an illegal firearm or other incriminating items. The gun in this case was hidden behind the AC unit, with the ski mask on top of it and the gloves on top of the ski mask. I find that it is not a coincidence that the gloves, ski mask and firearm were found together. Not only were the items found together, but, it is common for these items to be used together for an unlawful purpose."

¶ [11] And in relation to the Defendant’s record: The Crown states that the Defendant has no previous convictions for firearm offences or crimes of violence. SUBMISSIONS ON BEHALF OF THE DEFENDANT

¶ [12] The Defence accepts that the firearm was loaded but points to the fact that there is no evidence as to what use was made of the pistol.

¶ [13] On the question of intention: Whilst acknowledging that the pistol was found, loaded along with the mask and the gloves, Defence counsel submits that there is nothing that speaks clearly to the Defendant’s intention in relation to the firearm in question.

¶ [14] Defence submits that, with no previous convictions of this sort, the Defendant must be deemed of good character.

¶ [15] Defence asks the court to consider that the Defendant was only 18 years of age at the time of this incident and that he is now still a relatively young man of 20 years who is in 2-year relationship\( ^1 \) with his partner with whom he now has a 5-month-old child. Defence submits that the Defendant was employed prior to his incarceration and is sole income earner for his girlfriend and their infant child. \( ^1 \) The Defendant’s girlfriend stated when interviewed for the SIR that she has been with the Defendant for four (4) years. ANALYSIS

¶ [16] The SIR prepared by Mrs. Judye Garrahan-Mobley confirms that the Defendant is a young man of 20 years of age who was 18 at the time of the offence. Defendant is the first of two children of Caymanian parents. He had health difficulties from a birth defect with his heart in his childhood which meant that, as a young boy, he travelled overseas often for medical treatment to address health issues. Whilst this problem no longer plagued the Defendant as he grew older and approached in his teenage years, the Defendant told Mrs. Garrahan-Mobley that his parents’ marriage was "plagued with interpersonal difficulties" and, though his parents lived in same home, his father would "come and go". This ruptured the father-son relationship and the Defendant states that he has, in recent times, tried to repair broken relationship with his father.

¶ [17] The Defendant’s mother states that, though her son was suspended from school a few times, it was "never for bad things" just issues with his uniform, punctuality and attendance.

¶ [18] However, this information from the Defendant’s mother stands in stark contrast with the fact that the Defendant himself acknowledges in the report that he began using ganja at 13 years of age, was charged for consumption of ganja as a juvenile. In addition, the Defendant himself states very early in the report: "his father attempted to get him under control when he was a teenager and started getting into trouble." In addition it is noted that the Defendant’s suspensions and misbehavior resulted in him not being allowed to attend his graduation from John Gray High School and he left without achieving any academic qualifications. The mother’s comment also stands in stands in stark contrast with the mother’s own acknowledgment early in the report that the Defendant “went out with friends, they got caught with some weed and he was arrested.” Ms. Ebanks’ comment also is in contrast with the Defendant’s list of prior encounters as a juvenile with the RCIPS for offences including Common Assault, Possession of Ganja and Failing to Provide a Specimen of Urine - for which the Defendant was placed on a Probation Order. The Defendant stated that he in fact breached that Order when he submitted positive drug screens for ganja. It is concerning to the Court that the Defendant’s mother, in commenting on the Defendant’s troubling past states: “but it wasn’t like he was stealing, had a gun or murdered anyone, it’s just smoking.”

¶ [19] As an adult the Defendant was again the subject of a Probation Order in August 2012 for one year for the offences of Using Licence Plate with Intent to Deceive, Using Licence Coupon with Intent to Deceive, Using a vehicle without a Certificate of Roadworthiness and Driving without insurance. During the term of that supervision the Defendant was non-compliant with reporting instructions and was in breach of the Order – though a formal breach was never filed with the Court and the Order expired in August 2013.

¶ [20] The contradicting information in this report from the Defendant and the persons interviewed continues as, a lifelong neighbour states that she had never known the Defendant to be in trouble prior to this offence – even against the background of: a. the Defendant’s inability to graduate due to his errant behavior as well as his problems with the law from an early age; b. The Defendant’s encounters with the Court as a juvenile; c. The Defendant’s admission early in the report that he does have close friends and several have court matters pending or have been before the court. d. The fact that this longtime friend, at the same time, seems knowledgeable of the Defendant’s association with the “wrong crowd” as she states: “The current offence was due to the company he was keeping.”

¶ [21] The Court notes however that there is no offending history for the Defendant in relation to the use of a firearm or any offences of violence.

¶ [22] The Defendant has worked for periods of nine (9) and six (6) months in the water sports industry in the Cayman Islands – with his earnings dependent on how many boat trips are made. From his earnings, the Defendant stated that he contributed to the maintenance of his young family without having to turn to his mother for financial assistance. The Defendant states that he has the promise of employment once released from custody.

¶ [23] The Defendant is described by his partner as “a great father” but she also stated, “Sometimes the company that you keep is not good.” The Defendant’s mother also regards him as good father and the Court accepts this fact.

¶ [24] Regrettably the Court notes that the Defendant’s risk of reoffending is rated as high, and this stands in opposition to his good character and is related to the persons with whom he associates rather than to his own behaviour.

¶ [25] Before arriving at my decision I have also reviewed a number of cases heard before the Grand Court and the Cayman Islands Court of Appeal.: i. R v. Robert Terry Indictment 46/2011 and CICA 29/11: In this case the Defendant, who was 26 years of age, pleaded guilty to possession of a 9 mm Glock pistol. He was apprehended, with others in a car park on the Seven Mile Beach trying to switch the licence plates on a vehicle. The car in question contained a suitcase with a mask, a shoulder strap, a holster, a pair of gloves, two straps and one green and brown bag. There is evidence that, in addition to the possession of the unlicenced firearm, based on the paraphernalia in the car, the Defendant was planning to carry out other criminal offences. The Grand Court imposed a sentence of 12 years of imprisonment, which the CICA reduced to 9 years. ii. **R v. Rohan Marshall** Indictment 21/2009: This 29-year old Defendant pleaded guilty, on the 8th March 2010, to possession of a .38 firearm and was sentenced to 7 years imprisonment. iii. **R v. Leon Hydes** Indictment 28/2008: This 27 year old Defendant pleaded guilty on the 3rd October 2008 to possession of a Pietro Beretta handgun with magazine and ammunition. The firearm was found hidden in a sock, which was in the Defendant’s presence, and the firearm was loaded. A sentence of 8 years imprisonment was upheld by the CICA in CICA #26/2008 on the 2nd September 2009. iv. **R v. Christopher Kelvin Ebanks** Indictment 86/2007: This 21 year old Defendant was found guilty, on the 6th October 2007, of possession of an unlicenced firearm, namely a silver handgun, and sentenced to 10 years imprisonment. v. **Richard Parsons v. R** SCA #17/11: This 22 year old Appellant had pleaded guilty in the Summary Court to possession of a 12-gauge shotgun and was initially sentenced to a period of imprisonment of 9 years, which was reduced by the Chief Justice to 7 years. Mr. Parsons was cooperative with the police and pleaded guilty. CONCLUSION

¶ [26] The Court has taken the foregoing factors into account and is of the view that there are no factors which compel me to exceed the minimum sentence to be imposed in this case.

¶ [27] Accordingly, on the single count of Possession of an Unlicensed Firearm, the Defendant is sentenced to ten (10) years' imprisonment. Time spent in custody is to be deducted. Dated this the 6th day of February 2014 Honourable Mr. Justice Charles Quin Judge of the Grand Court