Alexander v the Queen

• Jurisdiction: Barbados
• Judge: Williams, J.A.,Gibson, C.J.,Mason, J.A.
• Judgment Date: 13 June 2014
• Neutral Citation: BB 2014 CA 15
• Docket Number: Criminal Appeal No. 14 of 2007
• Court: Court of Appeal (Barbados)
• Date: 13 June 2014

Court of Appeal

Gibson, C.J.; Williams, J.A.; Mason, J.A.

Criminal Appeal No. 14 of 2007

Alexander

and

The Queen

Appearances:

Mr. Ralph Thorne Q.C., Mrs. Sally Comissiong and Miss Michelle Forde for the appellant.

Mrs. Donna Babb-Agard Q.C., Deputy Director of Public Prosecutions for the respondent.

Miss Donna Brathwaite and Miss Roslind Jordan for the Attorney-General.

Mr. Charles Leacock Q.C., Director of Public Prosecutions as amicus curiae.

Criminal Law - Appeal against conviction and sentence — Having in his possession a firearm contrary to section 3(1)(b)(A) of the Firearms Act, Cap 179 and having in his possession ammunition contrary to section 3(1)(b)(D) of the same Act — Whether the imposition of mandatory minimum sentences in section 30 of the Act violates the right of a person to be protected from inhuman or degrading punishment under section 15(1) of the Constitution-Separation of Powers — Proportionality — Reading down — Minimum sentences in the section declared to be null and void — Credit for time spent in custody — Whether the appellant was entitled to a reduction of time in his sentence by virtue of a breach of the reasonable time guarantee — Whether trial judge erred in admitting the written statement of the appellant — Sections 70 and 71 of the Evidence Act

Williams, J.A.

I. INTRODUCTION

1 A determination is long overdue of the constitutional validity of the mandatory minimum sentences for firearm offences. It is the function of the courts to protect the fundamental rights and freedoms of the individual against legislation that requires sentences to be imposed which constitute inhumane or degrading punishment for the offence committed. The Constitution is the supreme law of Barbados and the judges should be the supreme guardians of the Constitution.

II. INDICTMENT

2 The accused was indicted for two offences under the Firearms Act, Cap. 179 (the Act) as follows: first count, having in his possession a firearm, contrary to section 3(1)(b)(A) of the Act and second count, having in his possession ammunition, contrary to section 3(1)(b)(D) of the Act. The particulars of the offences were that on the 12 January 2003 the accused had in his possession a .22 calibre rifle and two .22 calibre cartridges without a valid licence.

III. FIREARMS ACT

3 The Act commenced on 1 November 1998 and was an act to revise the law relating to firearms. On 15 August 2003, it was amended by the Firearms (Amendment) Act, 2002–12 which commenced on that date. The Amendment Act increased the punishment for some offences and made a term of imprisonment mandatory for others. All references are to the Act as amended unless otherwise stated.

4 The Act contains complicated sentencing provisions:

• (1) Mandatory minimum sentences are provided in section 30 in respect of convictions on indictment of three offences in relation to (i) prohibited weapons and ammunition (section 3(9)); (ii) a dealer's licence (section 7(3)); and (iii) the use of a firearm while committing an indictable offence (section 29(1)).There is also a fourth mandatory minimum sentence in respect of a conviction on indictment in relation to endangering life or safety (section 21A).

• (2) Maximum fines and/or maximum terms of imprisonment are provided for in respect of convictions on indictment of four offences in relation to (i) possession of a firearm with intent to injure (section 18); (ii) use of a firearm to resist arrest (section 19); (iii) possession of a firearm with criminal intent (section 20); and (iv) the transfer or disposal of a licensed firearm (section 24).

• (3) Maximum fines and/or maximum terms of imprisonment are provided in respect of summary convictions of five offences in relation to (i) carrying a firearm in a public place (section 21); (ii) trespassing with a firearm (section 22); (iii) supplying a firearm to an incapacitated person (section 25); (iv) obstructing a police officer in search of a firearm (section 26); and (v) failing to produce a firearm licence or permit (section 27).

5 In relation to the indictments in this case, section 3(1) provides that no person shall have in his possession any firearm or any ammunition unless he holds a valid licence to do so. “Firearm” and “ammunition” are defined in the Act. It is not disputed that the police found a firearm and ammunition and that the accused did not hold a licence. Section 3(9) provides that a person who contravenes section 3(1) is guilty of an offence.

6 Section 30 provides for punishment of the offences charged as follows:

“30.(1) A person who is guilty of an offence under section 3(9), 7( 3), or 29(1) shall on conviction on indictment

• (a) in the case of a first offence, except as provided in paragraph (b)(ii), be sentenced to imprisonment for not less than 7 years and not more than 15 years;

• (b) in the case of

  • (i) a second or subsequent offence; or

  • (ii) a first offence committed by a person who prior to the commencement of the Firearms (Amendment) Act, 2002 was convicted of an indictable offence in the course of which or during his flight after the commission of which he used a firearm,

  Be sentenced to imprisonment for not less than 15 years and not more than 25 years.” (Emphasis added.)

7 Prior to coming into force of the Amendment Act, a person who had in his possession a firearm or ammunition was liable on conviction on indictment to a fine of $100,000 or to imprisonment for a term of 20 years or to both. However, the Amendment Act removed the option to impose a fine and the discretion to impose a term of imprisonment of less than 7 years for a first offence and 15 years for a second offence. Section 30 of the Act as amended therefore provided mandatory minimum sentences of 7 or 15 years for possession of a firearm or ammunition. Further, the Act as amended does not, as in some jurisdictions, provide for an escape from the minimum sentence by an “exceptional circumstances” proviso, thereby permitting the court to take into account exceptional circumstances relating to the offence or the offender which would justify the court not imposing the mandatory sentence.

8 An appeal to this Court is with leave of this Court when it is an appeal against sentence, not being a sentence specifically fixed by law (section 3(3)(c) of the Criminal Appeal Act, Cap. 113A). Although the Firearms Amendment Act stipulates a fixed sentence for this case, by section 3(3)(b) of the said Criminal Appeal Act an appeal to this Court is with leave also when it is an appeal on any other ground that appears to the Court to be a sufficient ground of appeal. A sufficient ground is the important constitutional point on the mandatory fixed sentence. Leave was therefore granted.

9 On 12 September 2007, Blackman, J. sentenced the appellant to ten years' imprisonment for possession of the rifle and three years' imprisonment for possession of the ammunition, the sentences to run concurrently from 18 May 2007, the date of conviction. The sentences purported to comply with the Firearms Act before the Amendment Act. The sentencing court was not made aware of the Amendment Act which was applicable at the time of sentence and which required the judge to impose a minimum sentence of 15 years' imprisonment for both offences because the appellant was being sentenced in respect of a second offence on indictment. Prior to the Amendment Act there was no mandatory minimum sentence for possession; the court had power to impose a sentence or a fine or both. The court therefore did not take account of the applicable Amendment Act and in any event misapplied the Firearms Act prior to its amendment because there was no mandatory minimum sentence for possession prior to the amendment.

IV. APPEAL AGAINST SENTENCES

10 The appeal against the sentences was argued “on the basis of the amended grounds filed on 26 March 2010”. This judgment addresses Ground 6 which was as follows:

“That the sentence imposed by the Court pursuant to Section 30 of the Firearms Act is invalid on the ground that the said Section 30 of the Firearms Act is inconsistent with the Constitution of Barbados, thereby rendering the sentence and the trial a nullity”.

V. MANDATORY MINIMUM SENTENCES

(a) SEPARATION OF POWERS NOT DETERMINATIVE OF ISSUE

11 The Constitution prohibits a person being subjected to inhuman or degrading punishment or other treatment. The prohibition has been interpreted widely as encompassing the principle that no one should be subjected to a grossly disproportionate sentence. This is a huge topic with a vast and varied jurisprudence in many jurisdictions. The discussion in this judgment must therefore inevitably be limited to the simple facts of the offences and the applicability of mandatory minimum sentences to them.

12 The doctrine of the separation of powers is a convenient starting point of the discussion. The structure of the Barbados Constitution is based on the separation of the functions of government between the legislature, the executive and the judiciary. The concept was explained by the Privy Council in the Jamaican Gun Court case of Hinds v. R. [1977] A.C. 195. However, in practice there is frequently no rigid demarcation of functions and the three powers overlap and encroach upon each other. The demarcation of functions was recently discussed by Mendes, J.A. in the Belize Court of Appeal decision of Zuniga and Others v. Attorney General of Belize (2012) 81 W.I.R. 87 at paragraphs [76] and [77].

13 There is in our Constitution no absolute separation of powers in relation to punishment. The role of the three powers in relation to sentencing was neatly explained under the South African Constitution in Dodo v. State [2001] 4 L.R.C. 318 by the Constitutional Court. Ackermann, J. delivering the judgment of a panel of eleven judges stated as follows:

“[22] When the nature and process of punishment is considered in its...