R v Javard Clarke

• Jurisdiction: Anguilla
• Judge: Moise, J.
• Judgment Date: 27 May 2024
• Judgment citation (vLex): [2024] ECSC J0527-4
• Docket Number: CLAIM NO: AXAHCR2024/0010
• Court: High Court (Saint Christopher, Nevis And Anguilla)

Between:

Rex

and

Javard Clarke

Before:

His Lordship The Honourable Justice Ermin Moise

CLAIM NO: AXAHCR2024/0010

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTIICE

(CIVIL)

Appearances:

Ms. Erica Edwards for the Crown

Mr. Devin Hodge for the Defendant

Decision on Sentencing

Moise, J.

1 The Defendant, Mr. Javard Clarke, was indicted on one count of possession of a firearm and one of possession of ammunition. On 8 ^th April 2024 he pleaded guilty to the charge of possession of a firearm and the crown thereafter withdrew the second count on the indictment. He is therefore before the court for sentencing.

The Facts

2 The agreed facts presented to the court are that on 25 ^th August, 2022 members of the Royal Anguilla Police Force searched Mr. Clarke's car in the parking lot of the Albert Lake's Supermarket. Mr. Clarke was the driver of the motor car and there was one other passenger in the vehicle at the time. During the search, a 12-gauge shot gun was recovered between the passenger seat and the center console of the car. The firearm was partially covered with a black jacket. This firearm was later examined by Mr. Graham Husbands, who is an expert firearm and toolmark examiner. He determined that the shot gun was a Mossberg 12 gauge caliber shot gun. It bears serial number NV58655E on the left side of the receiver. During the examination of the firearm Mr. Husbands was able to successfully discharge rounds of ammunition from it. He determined that this was a firearm as defined in the Firearms Act 1.

3 Mr. Clarke, in an interview under caution, acknowledged possession of the firearm and accepted that it was his. In an affidavit filed during the sentencing hearing, Mr. Clarke indicated that he possessed this firearm because of genuine fear. He states that whilst he does not participate in a lifestyle of violence, there is an increased level of violence in West End, Anguilla where he lives. He states that the violence is purely territorial and that he has had peers and close relatives who have been injured or killed in this violence. He therefore took possession of a firearm in order to protect himself.

4 Mr. Clarke states that his sole focus in more recent years was his professional development and the ability to provide for his family. Mr. Clarke is the father of two children. His previous girlfriend now has custody of his daughter and lives in St. Martin. Mr. Clarke has kept custody of his son. He states that his ex-girlfriend is not gainfully employed and is therefore not capable of providing financially for the children. He is the one mainly responsible for their financial wellbeing.

5 In the Pre-Sentence Report, Mr. Clarke's mother speaks positively of him. Although she acknowledges some troubles in his past, she indicated that she thought he was over that phase in his life as he was older and now had children. She states that she helps him out with the children and has noticed that he has become more mature and has settled down. She describes her son as being generally jovial but with a temper. Once he is angry, she does not engage with him. Mr. Clarke's sister was also interviewed by the social worker, and she states that she has a close relationship with him. She was of the view that he is a good person and has matured since he became a father. Interviews with members of the community also indicated that Mr. Clarke was seen as a jovial person and never being angry. However, persons in the community were also aware of him getting into trouble in the past.

6 Mr. Clarke attended the Albena Lake Hodge Comprehensive School. The school record indicates that he displayed a bad temper and would be disruptive or fight at school. His academic performance was below average. He spent a considerable amount of time at the Ronald Webster Park near the

school instead of attending classes. There were incidents of disrespect to teachers and Mr. Clarke was eventually referred to the Pupil Referral Unit. He was reintegrated into the former Campus A in January, 2011 but thereafter reverted to negative patterns of behaviour

7 Mr. Clarke is currently employed with Mr. David Ebanks as a Boat Captain, Fisherman and Diver. He earns a salary of roughly $1,000.00US weekly. Mr. Ebanks has spoken very highly of Mr. Clarke and states that he would remain in his employment if he is not sent to prison as a result of this offence.

8 Mr. Clarke has an antecedent history. On 7 ^th October, 2014 he was convicted of Robbery and sentenced to 3 years in prison. It is noted that at the time of the offence he was 16 years old and was 18 at the time of sentencing. It is unclear as to when Mr. Clarke was released from prison. However, given the sentence, and the possibility of only service two-thirds of the time, it is likely that he would have been released sometime in 2016 at the earliest. That was 7 years ago. At the time of this offence, Mr. Clarke was considered an adult for the purpose of criminal responsibility. There was no diversionary legislation for persons below the age of 18, as there is now. It is, therefore, within the discretion of the court to determine how to treat this particular offence in light of Mr. Clarke's age at the time.

9 Since leaving prison Mr. Clarke has been convicted of a number of offences for possession of marijuana. However, on 20 ^th December, 2018, he was convicted of possession of marijuana with an intent to supply. For that he was fined the sum of $5,000.00EC.

The Sentencing Guidelines

10 It is agreed by counsel on both sides that the facts of this case fall within category 3 in stage 1 of the sentencing guidelines for firearm possession. This is a lesser offence because the firearm was concealed within the car. However, there is disagreement on Stage 2 of the process. The crown submits that this is a serious level B offence in that there was ammunition found in the firearm and...