R v Stephen Hughes
| Jurisdiction | Anguilla |
| Judge | Moise, J. |
| Judgment Date | 24 July 2024 |
| Judgment citation (vLex) | [2024] ECSC J0724-2 |
| Docket Number | CLAIM NO: AXAHCR2024/0002 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Year | 2024 |
His Lordship The Honourable Justice Ermin Moise
CLAIM NO: AXAHCR2024/0002
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Ms. Erica Edwards for the Crown.
Ms. Nakishma Rogers for the Defendant.
On 1 st July 2024, the defendant was sentenced to 6 years and 6 months and 8 years in prison, respectively, on two counts of possession of firearm without a valid permit. As a result of various submissions made at the sentencing hearing, I undertook to put my reasons in writing. I noted then, and continue to do so now, that various trends have emerged in the submissions put forward by defendants who are before the court for sentencing in firearm matters. Given the nature of those submissions and the precedent which the court inherently sets if it were to entertain or uphold those submissions, it is important to ensure that the court's position on such matters is clear.
Anguilla, like most of the countries of the Eastern Caribbean, has been gripped by increased levels of gun violence. As a result of this, this court is more frequently called upon to sentence persons found guilty, or who have pleaded guilty, to possession of firearms without a valid permit. As a result of this increase in violence, and due to the shift in approach to sentencing initiated by the promulgation of the new sentencing guidelines, it is also now accepted that terms of imprisonment are most appropriate for the illegal possession of firearms. However, three important trends have emerged in submissions before this court.
The first is that it is becoming customary for counsel to argue that there are exceptional circumstances which warrant a suspension of the prison sentence which the court deems appropriate. In fact, I note that in 3 of the last 4 occasions where the court has embarked on a sentencing hearing, it is submitted that the sentences ought to be suspended. Secondly, and in conjunction with the first, defendants have become more likely to submit that there are pre-existing medical conditions which makes it difficult to withstand the challenges of prison life. This is often the ground upon which the sentence is arguably to be suspended. The court is also called upon to consider the extent to which pre-existing medical conditions should operate as a mitigating factor in the sentencing of firearm offenders. The third and final trend which has emerged is the submission that defendants have decided to possess illegal firearms in order to protect themselves against the threats of violence which is prevalent in the society. In light of this, I thought it was important for the court to address each of those issues.
Section 45(1) and (2) of the Criminal Code 1 sets out the powers of the court insofar as it relates to suspended sentences. The section states as follows:
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(1) Subject to subsection (2), where a court passes a sentence of imprisonment for a term of not more than 2 years for an offence, it may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than 2 years from the date of the order, the offender commits in Anguilla another offence punishable with imprisonment .
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(2) A court shall not deal with an offender by means of a suspended sentence unless it is of the opinion that—
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(a) the case is one in which a sentence of imprisonment would have been appropriate even without the power to suspend the sentence; and
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(b) the exercise of that power can be justified by the exceptional circumstances of the case .
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There are 3 general observations which must be made in relation to this section. Firstly, the court must determine whether a term of imprisonment is appropriate in the first place. This much is now trite and needs little elaboration, except to say that a suspended sentence is not another way of imposing a lesser penalty. If a term of imprisonment is not warranted in the first place, then a suspended sentence is not a tool to mitigate against the harshness and inappropriateness of such a sentence. Secondly, the court cannot consider a suspended sentence if the appropriate term of imprisonment is more than 2 years. This underscores the fact that the more serious the crime for which a defendant is being punished, the less appropriate a suspended sentence is likely to be. Thirdly, the court should only order a suspended sentence if the exercise of that power can be justified by exceptional circumstances.
What constitutes exceptional circumstances is obviously a matter for the individual facts of each case. However, there have emerged various principles in case law which underscore some of the factors which the court may consider in determining whether a sentence should be suspended. In the case of DPP v. Elvis Richardson 2, Ramdhani J(ag) noted that he “would consider that a suspended sentence might be suitable in cases where a custodial sentence is appropriate but where such a sentence might have the effect of derailing the stability and future prospects of a man of good character in a case of
strong mitigating factors.” Whilst the legislation considered by Ramdhani J did not include the need for exceptional circumstances in considering a suspended sentence, I generally agree with this perspective and make two comments in relation to itFirstly, it would be difficult to justify a suspended sentence in circumstances where a defendant's antecedent history is significantly blemished. Where an individual has persisted in committing various crimes, especially one similar to the offence for which he is currently being sentenced, it would be a tall order for the court to decide that there are exceptional circumstances which warrant a suspension of the sentence. Secondly, the mitigating circumstances would have to be sufficiently strong in order for the court to consider them as exceptional. I am also of the view that if the mitigating factors are already considered in coming to an appropriate sentence of imprisonment, then they ought not to be considered in determining whether the sentence should be suspended. As it relates to section 45 of the Criminal Code, the court should not use the mitigating factors to reduce the sentence below 2 years purely as a means of suspending it. That would not be an appropriate way to exercise this discretion. The appropriate sentence and the suspension of that sentence are matters which ought to be considered separately.
The court can also consider the nature of the offence when balanced against a defendant's personal circumstances in order to determine whether there are exceptional reasons to suspend the sentence. This can include the level of disruption which may be caused to his family life and his employment. In the case of R. v Bowen (Ashley) 3 the court of appeal of England and Wales noted that:
“A sentence of 16 months' imprisonment imposed following a guilty plea to dangerous driving, where the offender had driven his car at a man fighting the offender's brother, was reduced to a suspended sentence of six months. The judge should have avoided immediate custody, given the risk that would have posed to the offender's employment, home and family, and where, although he had a criminal record, that was well in the past.”
Here the court is referring to a dangerous driving case and an offence which appears to be designed to protect a close family friend from immediate harm. The defendant's previous convictions were said to be “well in the past” and the risk posed to his employment, home and family life in such circumstances ought to have been considered. On the other hand, as this court has found in the more recent case of Rex v. Javard Clarke 4 persons ought not to be indifferent about the impact serious crime may have on their own families prior to the commission of offences which are premeditated. Possession of an illegal firearm is not a trivial matter, and it is important for the court to weigh in the balance the effect on family life with the willful and persistent disregard for the law which is becoming all too prevalent in our society.
Counsel for Mr. Hughes also referred the court to the case of R v. Rehman 5 where the English courts noted that the court should consider whether there are exceptional circumstances which, if not considered, may result in punishments that are excessively harsh in the circumstances. In that case, the court considered an elderly offender who was unfit to serve a 5-year sentence as a result of his advanced age.
The court was also referred to the case of R v. Alfonso Carty 6 which emerged from this jurisdiction. In that case, the defendant had pleaded guilty to one count of possession of a firearm and one count of possession of 111 rounds of ammunition. He was sentenced to 2 years imprisonment. The sentence was suspended on account of the fact that the defendant's mother was suffering from kidney failure and was taking dialysis on a regular basis. She was entirely dependent on him. It was also found that the defendant was 7 feet tall and over 300 pounds in weight. The size and nature of the prison cells in Anguilla were inadequate to house him. He also had no antecedent history. It was found that to imprison him would amount to cruel and inhuman punishment. His sentence was suspended.
In general, therefore, it must be underscored that the suspension of a sentence of imprisonment should only be considered in exceptional circumstances. Exceptional does not necessarily mean rare. However, given the frequency with which this court is called upon to exercise this discretion in relation to firearm matters, it is important to reiterate the general principles. Given the circumstances of this case and the submissions filed on behalf of Mr. Hughes, I...
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