John, age 57, is a bank manager and a licensed firearm holder. He is the father of Adam, who is 19 years old and has consecutively been on his school’s honour roll for the past three years.

After an exhausting day at the office, John leaves in his vehicle to go home. Upon entering his vehicle, as was customary for him, he removes his firearm from his waistband and places it under his driver’s seat. This allows for quick access and prevents obstruction by his seatbelt, in the event that the need for quick access arises.

Upon arriving home, John forgets to retrieve his firearm from under the seat of his car. His son, Adam, then decides to use his father’s car to visit a friend in another community. While driving, Adam is forced to make a sudden stop to avoid hitting a taxi driver ahead of him, who had stopped to pick up a passenger without signalling. At this point, the firearm slides forward on the floor, hitting Adam’s feet. Adam now knows about the firearm. He is in possession of it, and he does not have a user’s permit.

Before moving off, Adam takes the firearm and places it in the glove compartment of the car. His action catches the attention of a police officer in a patrol jeep behind him. The police signals for Adam to pull over to the side of the road. Adam is now nervous and frantic, which causes the police to grow suspicious. When asked by the police, before a search is conducted, if he has any weapon in the car or anything illegal to declare, Adam, without giving it any thought, declares that he does not have any weapon or anything illegal in the car.

The scenario above, although fictional, is not difficult to imagine as a reality. However, what is a reality, yet hard to conceptualise, is that Adam, upon pleading guilty or being tried and found guilty of possession of a firearm without a licence or user’s permit, would face a mandatory minimum sentence of 15 years imprisonment. This is due to Section 5(2) of The Firearms (Prohibition, Restriction and Regulation) Act, 2022.

The Firearms (Prohibition, Restriction and Regulation) Act, 2022, in its current form, does not make any exceptions for the scenario described above. This is absurd. It does not accommodate anyone wishing to plead guilty for being in possession of a prohibited weapon. There is no longer a legitimate expectation of a reduced sentence in the face of a guilty plea. The consequence of this is that there are rarely any guilty pleas in the Gun Court. An accused would sooner take his/her chances at trial with the hope of an acquittal than plead guilty with the certainty of a 15-year prison sentence.

That there should be harsh penalties for certain categories of offenders, such as those convicted of killing children and those most vulnerable among us, is impatient of any debate. Of course, this after due process is observed and all avenues of appeal have been exhausted.

However, the notion held by some that the greatest deterrent to crime is severe sentences is misplaced. The true deterrence is the fear of the certainty of being caught and convicted. There can only be certainty of a conviction if, beyond an eyewitness account, the evidence against the accused is supported by either closed-circuit television (CCTV) footage, fingerprint analysis, cell site data, or DNA evidence.

Experience has shown that there is hardly a case in which, in the face of CCTV footage, an accused actually insists upon a trial. Invariably, there is a guilty plea. Therefore, the focus of our legislators should not be on imposing mandatory minimum sentences in an extreme manner, as is currently prevalent in many of our laws regarding criminal offences.

Whereas it is acknowledged that there have in the past been a few instances in which lenient sentences have been imposed that were disproportionate to the offence, this in and of itself can no longer justify a shift towards statutory mandatory minimum sentences. This is so because there now exists legislation that gives the prosecutor a right to appeal in instances in which the view is taken that the sentence handed down by a judge is too lenient. This is now by virtue of Section 2 (2) (b) (ii) of Judicature (Appellate Jurisdiction) (Amendment) Act, 2021. This provision was recently relied upon in the case of R v Lindell Powell [2022] JMCA Crim 53 in which the Court of Appeal increased the sentence of Lindell Powell to two life sentences, in contrast to the 12 years handed down by the trial judge.

As was noted by Justice Winston Anderson (now president of the Caribbean Court of Appeal) in the case of Jabari Sensimania Nervais v The Queen [2018] CCJ 19 (AJ) at paragraph 109, “The Courts have exclusivity of judicial power to sentence.” That this is so was recently demonstrated in the historic sitting and decision of our own Court of Appeal in the hearing of Cecil Moore v R. In treating with the issue of Moore’s appeal and the statutory mandatory minimum sentence of 15 years for wounding with intent, which was imposed upon him at this trial, the Court of Appeal ruled that this did not take into account time which was spent on remand pending his trial. As a consequence, Moore’s sentence was reduced to 12 years and three months.

Based on this decision, it is clear that statutory mandatory minimum sentences cannot be absolute. If it remains a part of the fabric of our jurisprudence and is allowed to flourish, we run the risk of one of the biggest institutionalised injustice in our system. In the words of Martin Luther King Jr, “Injustice anywhere is a threat to justice everywhere.”

The mandatory minimum sentence is 15 years imprisonment for anyone found guilty of possession of a firearm without a licence or user’s permit. (OkiDokiBot AI Art Generator)

Peter Champagnie, King’s Counsel, is an attorney-at-law. Send comments to the Jamaica Observer or peter.champagnie@gmail.com.

Peter Champagnie