Carter J
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL DIVISION
IND0005 OF 2024
IND0006 OF 2024
THE CROWN
-V-
JAY CALVERT EBANKS
Coram:
Hon. Justice Marlene Carter
Crown:
Mr. Scott Wainwright, Assistant Director of Public Publications
Defence:
Mr. Oliver Grimwood of Samson Law
Hearing:
25 October 2024
Sentence:
12 November 2024
Criminal Law – Possession of unlicenced firearm – Sections 18 (6) and Sections 39 (2) of
the Firearms Act (2008 Revision), Possession of Cocaine with Intent to Supply - Sections
3 (1) (k) and (m) of the Misuse of Drugs Act (2017 Revision), Concurrent sentences
SENTENCE JUDGMENT
Background
1.
The Defendant faces an indictment containing three counts. His first appearance
in the Grand Court was on the 2nd of February 2024. On the 7th of March 2024,
pleas were entered to the first two counts on the indictment. These counts were as
follows:
i.
Count 1: Possession of an unlicensed Firearm contrary to section 15(1)
and (5) of the Firearms Act (2008 Revision) in that on the 10th of
January 2004 within the jurisdiction of the Cayman Islands, [the
Defendant], had in his possession a firearm, namely a 9mm Glock 26
pistol, serial number HBH019, otherwise in accordance with the terms
of a Firearms Users (restricted) licence.
ii.
Count 2: Possession of an unlicensed firearm contrary to section 15(1)
and (5) of the Firearms Act (2008 Revision) in that on the 10th of
January 2004 within the jurisdiction of the Cayman Islands [the
Defendant] had in his possession, seven rounds of ammunition,
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
otherwise in accordance with the terms of a Firearms Users (restricted)
licence.
2.
As to the third count on the Indictment, the Crown has indicated that the pleas to
Counts 1 and 2 are acceptable to the Prosecution in full satisfaction of the
Indictment.
3.
The Defendant is also to be sentenced with regard to the following offences which
were transmitted to the Grand Court by virtue of section 88A of the Criminal
Procedure Code:
i)
Possession of ganja contrary to Section 3 (1) (k) of the Misuse of
Drugs Law (2017 Revision), the quantity of drugs being 120.3 grams
or 4.24 oz.
ii)
Possession of cocaine contrary to Section 3(1) (k) of the Misuse of
Drugs Law (2017 Revision) the quantity of drugs being 26.89 grams
or .95 oz.
iii)
Possession of cocaine with intent to supply contrary to Section 3
(1)(m) of the Misuse of Drugs Law (2017 Revision) the quantity being
287.75 grams or 10.15 oz.
4.
On the 13th of March 2024, the Defendant entered guilty pleas with respect to those
offences.
5.
The following facts are taken from the Prosecution’s note on sentence. The
Defendant takes no issue with the facts presented:
6.
On the 10th of January 2024 officers from the RCIPS
conducted an operation in the Pedro Castle area with a
view to recovering a firearm(s).
7.
A blue Honda Fit vehicle being driven by the defendant was
stopped. The defendant then reversed into oncoming traffic
and sped away, colliding with a police vehicle and a CUC
pole in the process.
8.
Officers gave pursuit. The defendant was seen to open the
driver’s door and throw a brown backpack into a nearby
hedgerow.
9.
When the backpack was recovered and searched it was
found to contain a 9mm Glock-26 pistol. Also within the
backpack was an ammunition box containing seven (7)
rounds of 9mm ammunition.
10.
The vehicle was followed to #86 West Lane, Savannah, the
home address of the defendant, where he was detained by
the police.
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
11.
A quantity of cocaine and ganja was recovered from the
vehicle and from the defendant’s person. An electronic
scale was also recovered from the vehicle.
Interview under caution
12.
The defendant was interviewed under caution, in the
presence of an Attorney, on the 11th of January 2024.
13.
[In interview the defendant submitted a prepared statement
in which he denied possession of the firearm or drugs found
in the vehicle.]
DNA evidence
14.
The firearm and ammunition were swabbed. A DNA profile
was obtained from the swab of the overall firearm. A match
was obtained with a DNA profile obtained from a buccal
swab taken from the defendant.
15.
The probability ratio was 1 in 150,000.
Firearms examination
16.
On the 11th of January 2024, the recovered firearm and
ammunition were examined by RCIPS firearms examiner
Anthony Stewart. The Glock pistol was test fired with three
of the recovered rounds. The firearm discharged with no
issue.
17.
It was further discovered that the firearm had been fitted
with an “autosear” accessory which converts the weapon
from a semi-automatic to an automatic. The automatic
capacity of the weapon was tested and it fired flawlessly.
18.
In the opinion of Mr. Stewart, the items constituted a
firearm and ammunition for the purposes of the Firearms
Act.”
The Firearm Offences
6.
Section 39 of the Firearms Act (2008 Revision) imposes a mandatory minimum
sentence on a plea of guilty to Possession of an Unlicensed Firearm. Section 39 (2)
states as follows:
“(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 —
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
(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.”
7.
The mandatory minimum sentence applies with respect to the Count 1 for
Possession of Unlicenced Firearm, but there is no mandatory minimum sentence
in respect of the offence of Possession of Ammunition, Count 2 of the Indictment.
8.
Counsel for the Defendant has submitted that there are factors that could amount
to exceptional circumstances in this case. The Crown does not agree with those
submissions. The Court has considered these and does not agree that its discretion
should be exercised in this case.
9.
The most relevant authority to be considered in sentencing for an offence of this
sort is that of Tony Avis and others [1998] 1 Cr. App. R. 420, in which the English
Court of Appeal stated that the appropriate level of sentence for a firearm offence
will depend on all the facts and circumstances relevant to the offence and the
offender. It will usually be appropriate for the sentencing court to ask itself a series
of questions:
i)
What sort of weapon is involved? In this case the weapon which the
Defendant had in his possession was a 9mm Glock 26 pistol. The
firearm had been fitted with an “autosear” accessory. This converted
the firearm from a semi-automatic weapon to a fully automatic
weapon. The weapon, as adapted, was thereby made more dangerous
than as originally manufactured.
ii)
What, if any, use has been made of the firearm? There is no
evidence of the weapon having been used to commit any other offence.
iii)
With what intention, if any, did the Defendant possess or use the
firearm? There is no evidence of the Defendant’s intention.
iv)
What is the Defendant’s record? The defendant does not have any
conviction for a firearm offence nor for offences of violence.
The Drugs offences
10.
The Chief Justice’s Statement on Tariffs and Guidelines for Sentencing for Certain
Offences, published in 2002, remains the most relevant guide to the sentencing
Court:
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
“At the other end of the scale of gravity, that is to say, trafficking
in hard drugs in any quantity as defined in the Misuse of Drugs
Law, the maximum penalty prescribed for offences involving 2
ounces or more is 20 years for the first offence and 30 years for a
second or subsequent offence with an unlimited fine in each case.
That of course is the maximum – the sentence for the worse
possible offence by the worse possible offender.
The tariff for a first such offence, involving less than 2 ounces of
cocaine or less than 4 grams of cocaine base without mitigating
circumstances, will be 8 years. For offences involving 2 ounces or
more or 4 grams or more of cocaine base without mitigating
circumstances the tariff will be 10 to 12 years. 15 years or more
will be imposed where such an offence involves substantial
importation or dealing in anyway either in powder or crack
cocaine. We would define ‘substantial importation or dealing’ as
any transaction involving several ounces or kilo quantities.”
11.
The Crown submits that for the offence of Possession of cocaine with intent to
supply, based on the quantity of drugs, here 10.15 oz, the starting point could be
between 10-12 years and 15 years. Very properly, counsel for the Prosecution
submitted that given the sentence to be imposed in respect of that count, the Court
may consider that the sentences on the possession simpliciter offences could be
ordered to run concurrently to the greater sentence.
12.
Counsel submitted that the Court in seeking to arrive at an appropriate sentence
and in support of the Defendant dealing in cocaine, should consider the finding of
the electronic scale in the Defendant’s vehicle. Counsel identified as aggravating
factors that the drugs recovered from the person and vehicle of the Defendant were
found in proximity to the firearm for which he is charged and the fact that the
Defendant had both in a public place.
13.
In mitigation, counsel for the Defendant submitted, regarding the suggestion of the
Defendant being in possession of the cocaine for substantial dealing, that the scales
that were recovered were not connected to drugs in particular, alluding to there
being was no forensic evidence regarding the scales. He submitted too that the
Court should consider that this was a case where there was no telephone evidence
to support a case for significant drug dealing. Neither was there any other drug
paraphernalia present, debtors list or substantial cash recovered, all factors which
would go to support an assertion of substantial dealing.
14.
Counsel also referred to the personal circumstances of the Defendant. The
Defendant suffers from an autoimmune disease, multiple sclerosis (MS). As such,
he will need proper care while incarcerated. The SIR notes that the Defendant was
diagnosed with MS in 2020. He must receive infusions every six months and must
have certain tests as part of his treatment for that condition. The Defendant
reported to the Probation Officer that he has not had any physical challenges since
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
his diagnosis. Counsel submitted that the nature of the Defendant’s condition was
significant and serious and that the time that this Defendant will spend in custody
will be significantly more onerous because of his condition.
15.
This Court has had the benefit of the SIR of the 9th of May 2024, prepared by the
Department of Community Rehabilitation. The SIR paints a picture of a young
man who had a good upbringing, with involvement and support from his mother
and close relationships with his siblings and the company of friends whom he
described as smart, hardworking, trustworthy and determined. He had never known
these close friends to be involved with the law or to use illegal drugs. It is obvious
and as noted by the probation officer that the Defendant has other friends who are
involved in offending behavior and who seem to have had negative influences on
his actions.
16.
The Defendant had a sound education, he was variously employed and, in the years
leading to the commission of the offences before the Court, had been working as a
boat captain for approximately three years and had started his own company. The
Defendant did not report being heavily involved in the use of alcohol or hard drugs
and had, during the period of his work life, an income that never went below
$2,500.00.
17.
This is a man who had received and taken advantage of opportunities in his life.
This Court notes that the Defendant did acknowledge in the SIR that the offences
for which he is to be sentenced are very serious in nature. The SIR noted that he
expressed remorse for his actions. The Defendant was assessed as being at Medium
risk of reoffending based on the LS/CMI Risk/Need Assessment Tool.
18.
In arriving at the appropriate sentence in this case, the Court is mindful that it must
be a sentence that takes fully into account the offence and the offender. In
particular, the Court must look at the aims of sentencing as well as the principle of
proportionality and totality.
19.
Section 39 (2) of the Firearms Act prescribes the mandatory minimum sentence on
a guilty plea for Possession of an Unlicensed Firearm of 7 years imprisonment.
This Court has found that the appropriate sentence for the offence of Possession of
an Unlicensed Firearm is 8 years imprisonment, applying the Avis principles and
in light of the aggravating factor here, that this was a firearm converted from a
semi-automatic to a fully automatic weapon. For the second count on the
Indictment, Possession of Ammunition, the sentence of the Court is 3 years,
reduced to 2 years imprisonment for his guilty plea, which sentence will run
concurrent to the sentence for the Possession of Firearm.
20.
For the offence of Possession of cocaine with intent to supply, the quantity of
cocaine recovered in the Defendant’s vehicle, 10.15 oz, is sufficient to sustain the
offence as charged. The guidelines indicate that a range of 10-12 years going up to
15 years as a starting point would not be inappropriate in this case.
241112 – R v. Jay Calvert Ebanks – IND0005-6/2024 – Sentence Judgment
21.
I assume a starting point of 12 years imprisonment. Taking into account the
aggravating factors identified, the starting point is raised to 14 years. The
Defendant will receive the full discount for his guilty plea of 1/3 to take the
sentence to 9 years and 3 months imprisonment. I consider the defendant’s medical
condition, and I take this into account and reduce that sentence by 6 months for
person circumstances. This takes the sentence to 8 years and 9 months
imprisonment. For the offence of Possession of ganga, 4.24 oz, the sentence is 1
year and 6 months custody. For his guilty plea, this will be reduced to 1 year
custody.
22.
For the offence of Possession of cocaine, here .95 oz, a hard drug less than 2 oz,
the tariff maximum sentence of 8 years imprisonment. For this offence, the
sentence is 3 years imprisonment. For his guilty pleas, this will be reduced to 2
years custody.
23.
The sentences for the offences of Possession of ganja and Possession of cocaine
will run concurrently to the sentence for Possession of cocaine with intent to
supply.
24.
The Cayman Islands Sentencing Guidelines state that it is wrong in principle to
impose sentences to run consecutively where those offences, though distinct in
law, arose out of a single act so that the overall criminality for the offender can be
represented by concurrent sentences. These offences are offences which arose out
of a related incident or facts. The Court is mindful of the overriding principle in
sentence that the overall sentence must be just and proportionate.
25.
With these in mind, the determination of the Court is that the sentences for
Possession of an Unlicensed Firearm and that of Possession of cocaine with intent
to supply should run concurrently. This will take the overall sentence to 8 years
and 9 months custody. In all the circumstances I find that this is the appropriate
sentence in this case. Time in custody to be deducted.
26.
The drugs and firearms are ordered forfeited to the Crown.
Hon. Justice Marlene I. Carter
Judge of the Grand Court