R v Corey Alexei Diaz - Sentence Judgment

¶ 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 1 of 9 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 33 of 2024 4 5 6 7 R 8 9 V. 10 11 COREY ALEXEI DIAZ 12 13 14 Appearances: Mr. Scott Wainwright, Assistant Director, Office of the Director 15 of Public Prosecutions for the Prosecution 16 17 Mr. Jonathon Hughes of Samson Law for the Defence 18 19 Before: The Hon. Justice Cheryll Richards KC 20 21 Submissions Heard: 2nd July 2024 22 23 Sentence Judgment: 2nd July 2024 24 25 26 27 Criminal Law - Sentencing – Possession of Unlicensed Firearms (Ammunition), Firearms Act 28 (2008 Revision), Principles on Sentencing. 29 30 31 32 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 2 of 9 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his guilty plea to Count 1 of 3 the Indictment. This charges him with the offence of Possession of an Unlicensed Firearm 4 (Ammunition) contrary to s.15 (1) and (5) of the Firearms Act (2008 Revision). The 5 particulars are that he on or about the 8th day of March 2024, within the jurisdiction of 6 the Cayman Islands, had in his possession a firearm, namely fifteen (15) rounds of 7 ammunition which were not under and in accordance with the terms of a Firearm Users’ 8 (Restricted) Licence. 9 10

¶ [2] The maximum penalty is 20 years imprisonment and a fine. 11 12

¶ [3] The defendant first appeared before the Grand Court on the 12th April 2024. He was 13 arraigned and entered the plea to Count 1 as aforesaid. Count 2 was not put. The plea is 14 acceptable to the prosecution. No evidence is offered on Count 2 of the Indictment which 15 charges him with Possession of Firearm (a magazine clip). A formal verdict of not guilty 16 is entered on this Count and the defendant is discharged thereon. 17 18 THE FACTS 19 20

¶ [4] The prosecution has provided a summary of facts which is set out below: - 21 22 i. At about 1:00pm on the 8th March 2024, police officers stopped a Kia motor 23 vehicle, registration 223 776, which was being driven by the defendant on 24 Shamrock Road. He was the only person in the vehicle. 25 26 ii. A black bag was recovered from the centre console within which was a plastic bag 27 containing fifteen (15) rounds of 9mm ammunition. There were also three (3) 28 rounds of .38 caliber ammunition. 29 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 3 of 9 iii. When asked about the ammunition, the defendant said, “I found the black bag on 1 the beach.” He was asked whether there were any other illegal items in the vehicle 2 and he stated “One black extension was in the bag too”. 3 4 iv. From under the front passenger seat a magazine clip was recovered and when asked 5 about this item he stated that he had found it, “I told you, [you] found it”. 6 7 v. A jar containing ganja was recovered from the centre console. An amount of cash, 8 $2,950.00, was also recovered from the vehicle. 9 10 vi. When the defendant was arrested and taken to the Cayman Islands Detention 11 Centre, he was searched and a clear ziplock bag was recovered from his pants 12 pocket. The bag contained a further four Ziplock bags containing white powder 13 which has tested positive for cocaine. 14 15 vii. Two of the 9mm rounds were test-fired by police firearms examiner Anthony 16 Stewart. They discharged without issue. Mr. Stewart is of the opinion that the 17 rounds were viable and constitute ammunition for the purposes of the Firearms Act 18 in the Cayman Islands. 19 20 viii. The .38 caliber rounds were test-fired. All three failed to discharge. In the opinion 21 of Mr. Stewart those three rounds were not viable. Mr. Stewart examined the 22 magazine clip. He found it to be inoperable. 23 24 ix. The defendant was interviewed under caution in the presence of an Attorney on the 25 following day the 9th March 2024. He submitted a prepared statement which reads 26 as follows: - 27 28 I, Corey Diaz, wish to say the following: - 29 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 4 of 9 I am a user of both ganja and cocaine, however I do not sell or supply either. 1 The cash found in the car was from a recent sale of my dirt bike to a guy called 2 Demari who works at NRA. This is all I know about him. 3 4 The ammunition and magazine that was found in my car was not mine. I found it 5 on the beach a little North of the Kimpton about 3 hours previously and I picked it 6 up because I was curious. 7 8 In hindsight this was a stupid thing to do, and I should have just left it or called the 9 police. 10 11 This is all I have to say at this time. …”. 12 13

¶ [5] Costs in respect of this case are assessed at $500.00 by the prosecution. 14 15 ANTECEDENT HISTORY 16 17

¶ [6] The defendant has no previous convictions recorded against him. 18 19 SOCIAL INQUIRY REPORT 20 21

¶ [7] The Department of Community Rehabilitation has provided a Social Inquiry Report 22 (“SIR”) dated 13th June 2024 in respect of the defendant. The Court has read this report 23 in its entirety and takes into account everything said therein in favour of the defendant. 24 25

¶ [8] The defendant is twenty-six years old and gainfully employed in his father’s construction 26 business for the past six years. He reports no childhood issues but says that he witnessed 27 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 5 of 9 instances of violence in the home. He completed high school and Level 1 studies at a 1 tertiary institution without incident. 2 3

¶ [9] There is some substance misuse from teenage years but the defendant reports that he 4 stopped this practice following his arrest for this offence in March 2024. 5 6

¶ [10] Two of his family members have faced serious illnesses and he has had to deal with this. 7 The best friend of the defendant was recently killed in a shooting incident. This is said to 8 have affected the defendant emotionally. He became withdrawn and fearful for his own 9 life as threats have also been made to him. 10 11

¶ [11] The defendant was assessed as being at medium risk of re-offending with only one of the 12 eight criminogenic factors in the High category. This is leisure/recreation based on his 13 problems with ganja and cocaine. The Officer notes that he appears to be involved in a 14 criminal drug sub-culture. 15 16

¶ [12] The defendant has been on bail for this offence and is reported to have been highly 17 compliant with the electronic monitoring programme. 18 19 CHARACTER REFERENCES 20 21

¶ [13] Two character references have been provided.1 Both persons have known the defendant 22 for a significant period of time, in one case for more than twenty years. The defendant is 23 described as a helpful, well-mannered and respectful young man who is mature and has 24 good judgment. He is not one to get into trouble or break laws. He is said to be remorseful 25 and to recognise that he made a poor choice. He is also described as “saveable” and 26 desirous of rebuilding his life. 27 28 1 Troy O. Claxton dated 11th May 2024 and Griscela Ebanks dated 28th May 2024. 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 6 of 9 THE SUBMISSIONS 1 2

¶ [14] Defence Counsel submits that many cases involving visitors to this Country have resulted 3 in non-custodial sentences and that given the basis for his plea which is not accepted but 4 not challenged by the prosecution, the defendant should not be treated any differently. 5 Counsel relies on the case of R v David Meadors2 in which the defendant had two 6 hundred and forty rounds of ammunition and despite absconding back to the United 7 States and refusing to return to the Cayman Islands he received a financial penalty. 8 9

¶ [15] Counsel submits that the defendant now before the Court is a young man with potential. 10 He has gone through a difficult period of his life and would benefit from intervention. 11 This offending is a wakeup call for him. He is said to be genuinely remorseful. Counsel 12 submits that the defendant has successfully given up a drugs habit and shown himself 13 and the Court that he is someone capable of making positive change. 14 15

¶ [16] Counsel asked the Court to take the following pieces of personal mitigation into 16 consideration, the defendant’s hitherto unblemished criminal record, his young age, his 17 strong family and employment background, the positive character references, recent 18 bereavement and two serious health diagnoses within his family in the recent past. 19 20

¶ [17] Counsel also asks the Court to consider that a sentence of immediate imprisonment could 21 do more harm than good in this particular case where the defendant has already spent a 22 week on remand before being granted bail. He has been on a restrictive 12-hour curfew 23 from 7:00am to 7:00pm. He has complied fully and there have been no issues. Counsel 24 urges that a suspended sentence, with or without a Supervision Order in tandem with any 25 other components the Court deems fit would be most appropriate in this case. Counsel 26 said that the defendant is willing and will comply with any financial penalties which the 27 Court may seek to impose. 28 2 Grand Court Unreported Judgment in Ind. 60 of 2017 dated 12th March 2021 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 7 of 9 THE SENTENCE 1 2

¶ [18] The Court is mindful of the principles set out in the case of R. v. Avis3. Although defined 3 as a firearm, the Court is here dealing with ammunition. There is no evidence as to any 4 use or intended use of the ammunition. There is no evidence that they were possessed 5 with any particular intention. The defendant has no record of committing firearm offences 6 or crimes of violence. He is a person with no previous convictions and is said to be of 7 good character. 8 9

¶ [19] Nevertheless, these were viable rounds in a significant quantity. The defendant on his 10 own account knowingly took possession of them and was driving around with them for 11 some three hours before he was stopped by the Police. He had ample time to report the 12 find to the Police or to dispose of them as he said he wanted to do. He did neither of the 13 two. 14 15

¶ [20] In the view of this Court this offending is serious and passes the custody threshold. 16 Although the mandatory minimum does not apply, the legislature by the level of penalties 17 imposed for these offences plainly stresses the seriousness with which the possession of 18 firearms, in this case, ammunition is to be regarded. 19 20

¶ [21] Defence Counsel relies on the case of Meadors where the circumstances were somewhat 21 different. That defendant had a firearm license albeit in the United States of America. 22 This defendant has no license. He is on Island and is subject to incarceration and or the 23 appropriate oversight. The aims of sentencing in this case must be deterrence, punishment 24 and rehabilitation. The defendant and other like-minded individuals must be deterred 25 from possessing firearms and ammunition. 26 27 3 1998 1 Cr. App. R 420 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 8 of 9

¶ [22] Noting the nature of the offending the Court adopts a starting point at the lower level of 1 30 months imprisonment. 2 3

¶ [23] In mitigation, account is taken of everything which has been written and said in the 4 defendant’s favour including all that was urged by his Counsel. These include: - 5 6 i. The defendant has no previous criminal history and is of good character. 7 ii. His remorse. 8 iii. His level of maturity for his age. 9 iv. His strong family and employment background. 10 v. The positive character references. 11 vi. Recent bereavement. 12 vii. Two serious health diagnoses within his family in the recent past. 13 14

¶ [24] All taken together these serve to reduce the sentence by 9 months to 21 months 15 imprisonment. 16 17

¶ [25] The defendant is afforded the full one third credit for his guilty plea. This reduces his 18 sentence by 7 months to 14 months imprisonment. 19 20

¶ [26] The Court notes his personal circumstances including that he is of medium risk of re- 21 offending and considers that a sentence of immediate custody is avoidable. The sentence 22 of 14 months is therefore suspended for two years. 23 24

¶ [27] Pursuant to s.21 of the Alternative Sentencing Act (2008 Revision), a Supervision Order 25 is made. The defendant is therefore placed under the supervision of a Probation Officer 26 for the period of two years while the sentence is suspended. 27 28 240702 R v Corey Alexei Diaz: Ind. 33 of 2024. Coram Richards J, KC - Sentence Judgment Page 9 of 9

¶ [28] The Officer has indicated in the SIR that the conditions which will be imposed on him 1 will include:- 2 3 • Random drug testing. 4 • Assessment and engagement with treatment at the Counselling Centre. 5 • Completion of other recommended programmes. 6 7

¶ [29] In addition, pursuant to s.42 of the Penal Code (2024 Revision), the defendant is to 8 undertake 240 hours of community service under the direction of the Probation Officer, 9 and he is to complete this within one year. 10 11

¶ [30] In each case the consequences of any breach are explained to the defendant. 12 13 COSTS 14 15

¶ [31] The defendant is to pay costs of $500.00 or 4-months imprisonment. Time to pay is given 16 until Tuesday 9th July 2024 at 3:00pm. 17 18 ANCILLARY ORDERS 19 20

¶ [32] The magazine and ammunition are ordered forfeited to the Crown to be destroyed. 21 22 Dated this the 2nd July 2024 23 24 The Hon. Justice Cheryll Richards KC 25 Judge of the Grand Court 26