R v Thalia Barnes and Marcus Manderson - Sentence Judgment

¶ 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. 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: 11 OF 2022 4 5 6 R 7 8 V. 9 10 THALIA ASHANTI BARNES 11 12 13 Appearances: Mr. Scott Wainwright, Assistant Director of Public 14 Prosecutions for the Prosecution 15 16 Mr. Crister Brady of Brady Law for the Defence 17 Before: The Hon. Justice Cheryll Richards KC 18 Submissions Heard: 27th June 2023 19 20 Sentence Judgment: 29th June 2023 21 22 23 Criminal Law - Section 15 and Section 39 of the Firearms Act (2008 Revision), Possession of 24 Unlicensed Firearm, Sentencing After Trial, Whether Exceptional Circumstances. 25 26 27 28 29 30 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 2 of 9 SENTENCE JUDGMENT 1

¶ [1] The defendant was convicted after trial of two counts of Possession of an Unlicensed 2 Firearm contrary to s.15 of the Firearms Act (2008 Revision). Count 1 charges her 3 jointly with Marcus Manderson with possession of a .380mm Hi-point semi-automatic 4 pistol which was not under and in accordance with the terms of a firearm user’s 5 restricted license. Count 2 charges her jointly with Marcus Manderson with possession 6 of one round of .380mm ammunition which was not under and in accordance with the 7 terms of a firearm user’s restricted license. The maximum penalty is 20 years 8 imprisonment in respect of both counts. 9 10

¶ [2] In respect of Count 1, s.39 of the Act provides for the imposition of a mandatory 11 minimum sentence of 10 years imprisonment after trial, unless the Court is of the 12 opinion that there are exceptional circumstances relating to the offence or to the 13 offender which justify it not doing so. 14 15 ANTECEDENT HISTORY 16 17

¶ [3] The defendant has one previous conviction in April 2021 for Possession of Ganja with 18 Intent to Supply for which she received a sentence of imprisonment of 12 months, 19 which was suspended for 2 years. This offence for which she is now before the Court 20 was committed during the concurrence of that suspended sentence. 21 22 THE FACTS 23 24

¶ [4] The brief facts are that on the night of the 9th December 2021, the firearm which was 25 loaded with a single round of ammunition was found in a printer in a bedroom which 26 she occupied with the co-defendant, her gentleman friend Marcus Manderson. 27 28

¶ [5] A swab of the sights and grips of that firearm (“SH 1”) before fuming produced a 29 mixture of DNA which was analysed. The defendant could not be excluded therefrom 30 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 3 of 9 to an estimated ratio of 17 million times more likely if they originated from the 1 defendant and two unknown people, than if they originated from two unknown people 2 unrelated to her. 3 4 SOCIAL INQUIRY REPORT 5 6

¶ [6] The Department of Community Rehabilitation (“DCR”) has provided a Social Inquiry 7 Report “SIR”) dated the 4th May 2023 in respect of the defendant. The Court has read 8 the Report in its entirety and takes into account everything written therein in favour of 9 the defendant. 10 11

¶ [7] The defendant is twenty-five years old. She has a young child who is only six years 12 old. The defendant was in full-time employment for four years up to the point in time 13 of her arrest. 14 15

¶ [8] Her background history is noted. This includes traumatic childhood issues as set out on 16 page 3 of the SIR and the relationships as detailed on page 5 and the nature of them. 17 The details under the heading Community Institutional Functioning are particularly 18 noted together with the fears that she has expressed. 19 20

¶ [9] The defendant is assessed by the Probation Officer as being at medium risk of re- 21 offending. There is one criminogenic factor in the Very High category. It is 22 Companions. The Officer states, “It would seem though that she has criminal 23 associates and is drawn to persons with a history of criminality.” 24 25 LETTER TO THE COURT 26 27

¶ [10] The defendant has also written a letter to the Court dated 5th May 2023 which the Court 28 has read and takes into account. In the letter, the defendant explains her circumstances, 29 takes full responsibility for ‘bad partner choice’ and asks for leniency so that she can 30 raise her young son: - 31 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 4 of 9 1 “I write to you today very apologetically. I am not the type of person to get in 2 a situation like what I am being accused of. Some people might have their own 3 pre-conceived idea of me looking at the choice of partner I made, and now the 4 seriousness of the offences for which I have been found guilty. I take full 5 responsibility for the bad choice of a partner I made, but I truly wanted better 6 for him. I suggested we go counselling to better our relationship, but this did 7 not work because I was not the problem and because of school. His choice was 8 associating with bad company. And there are moments he would threaten to kill 9 me when we fought, and I called the police every time he did this. I am sorry 10 again for being in this terrible situation especially growing my little one, I beg 11 you as a young woman working towards building a bright future for myself and 12 young one, which I was focused on doing for leniency and any other help other 13 than imprisonment. I am no harm to anyone; I abide by the law, and I told the 14 truth and nothing but the truth when I said that the gun was not mine. I have 15 never owned a gun before and do not intend to ever own one. I cannot speak 16 for anyone else, but I am 100% sure of myself. I don’t want this to tarnish my 17 reputation and the opportunities I have built for myself. This experience has 18 taught me to open my eyes to what bad associations can cause and moving 19 forward I will share my experience with my son to ensure that he does not make 20 the same mistakes I have made. I want to continue to grow and be a great 21 influence to him and others. I would like to be able to affirm his needs and wants 22 and provide him with opportunities while helping him to internal controls. 23 Overall, I want to help raise my little one and guide him on the right path. I 24 want to be able to support and encourage him as he grows. Once again, I beg 25 The Honorable Court to be lenient with my situation.” 26 27 THE SUBMISSIONS 28 29

¶ [11] Before this Court, Counsel on the defendant’s behalf submitted that her circumstances 30 are not typical of most defendants. Counsel submits that the defendant’s fear of 31 repercussions and consequences to her is real, particularly so in light of the killing of 32 her former partner. Counsel submits that the defendant feared being killed if she left 33 the co-defendant or gave evidence against him. 34 35

¶ [12] Counsel adopts the SIR in its entirety and submits that all the circumstances taken 36 together are exceptional. 37 38 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 5 of 9

¶ [13] The prosecution submitted that there are no exceptional circumstances in this case and 1 referred the Court to the unreported judgment in the case of R v Dean Ryan Derby1. 2 3 THE SENTENCE 4 5

¶ [14] Under the 2002 Statement of Tariffs and Guidelines which predated the imposition of 6 mandatory minimum terms, the then Chief Justice said this: - 7 8 “As regards to firearm offences contrary to the Firearms Law, the legislation is 9 quite clear that the possession or use of an unlicensed lethal barrelled firearm is 10 an extremely serious offence. Under the Firearms Law the maximum penalty for 11 possession of an unlicensed firearm is 20 years and a fine of $100,000. The tariff 12 for that offence unless there are very mitigating circumstances will be 10 years. 13 14 If on the other hand aggravating circumstances exist for instance, the use of the 15 firearm for the commission of a serious offence, the tariff will be in keeping with 16 the decided cases and will be significantly higher.” 17 18

¶ [15] This Court has also considered the case of Chavarria-Atily v R2. A decision of the 19 Cayman Islands Court of Appeal in which the Court said this: - 20 21 “In the Cayman Islands, it has been the massive increase in offences under the 22 Firearms Law that has led Parliament to enact the minimum sentences in respect 23 of these offences, while at the same time making special provision for cases of 24 exceptional circumstances. 25 26 The mere possession of a firearm even without any intention to use it for a criminal 27 offence can still be a danger to the public for the reason that it could get into the 28 hands of someone who does have that intent.” 29 1 Ind. 15 of 2020, Unreported Judgment dated 15th September 2020 2 [2009] CILR 118 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 6 of 9 1

¶ [16] In the case of R v Zakir Rehman and Gary Wood3 the English Court of Appeal said 2 that in considering whether there are exceptional circumstances in a case such as this 3 one, a holistic approach is needed. There would be some cases where there is one single 4 striking feature relating to the offence or the offender and others in which there is no 5 single factor by itself but the combination of all circumstances may be of such 6 collective impact as to amount to exceptional circumstances. 7 8

¶ [17] Consideration has also been given to the relevant principles as set out by the English 9 Court of Appeal in the case of R v Nancarrow4 as cited in the Judgment of the Court 10 in R v Derby. 11 12

¶ [18] In coming to a decision in the instant case, this Court has asked the relevant questions 13 as set out in the case of R v Avis5. 14 15

¶ [19] What sort of weapon is involved in this case? It is a genuine firearm that was loaded, 16 and as the Court in R v Avis noted, genuine firearms are more dangerous than imitation 17 firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded 18 firearms for which ammunition is available are more dangerous than firearms for which 19 no ammunition is available. 20 21

¶ [20] There is no evidence that any use was made of this firearm or with what intention if 22 any, the defendant possessed the firearm. 23 24

¶ [21] In relation to the fourth question, the defendant has no record of convictions for firearm 25 offences. 26 27 3 [2006]1 Cr. App. R. (S) 77 4 [2019] EWCA Crim 470 5 [1998] 1 Cr. App. R. 420 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 7 of 9

¶ [22] Is the fact of an abusive relationship and fear of a partner an exceptional circumstance? 1 In this Court’s view, regrettably it is not. The defendant could have made the choice 2 to seek help to end the relationship. 3 4

¶ [23] Is the fact that the defendant felt unable through fear to leave the relationship or to 5 speak out because of her past history an exceptional feature? In this Court’s view, 6 regrettably it is not. The defendant is an adult and could have made the choice to seek 7 help. 8 9

¶ [24] In the case of R v Nancarrow, in respect of similar mandatory minimum provisions for 10 firearm offences in the United Kingdom, the Court identified eight (8) principles from 11 decided cases which apply: - 12 13 “19. The authorities in this court establish the following principles as to the application 14 of section 51A (2): 15 16 (1) The purpose of the mandatory minimum term is to act as a deterrent 17 (R v Zakir Rehman and Wood) [2005] EWCA Crim 2056; [2006] 18 1 Cr App R 77 at paragraph 12. 19 20 (2) Circumstances are exceptional for the purposes of subsection (2) if to 21 impose five years' imprisonment would amount to an arbitrary and 22 disproportionate sentence (Rehman at paragraph 16). 23 24 (3) It is important that the courts do not undermine the intention of Parliament 25 by accepting too readily that the circumstances of a particular offence or 26 offender are exceptional. In order to justify the disapplication of the five- 27 year minimum, the circumstances of the case must be truly exceptional (R 28 v Robert Dawson [2017] EWCA Crim 2244 at paragraphs 12 and 19). 29 30 (4) It is necessary to look at all the circumstances of the case together, taking 31 a holistic approach. It is not appropriate to look at each circumstance 32 separately and conclude that, taken alone, it does not constitute an 33 exceptional circumstance. There can be cases where no single factor by 34 itself will amount to exceptional circumstances, but the collective impact 35 of all the relevant circumstances makes the case exceptional (Rehman at 36 paragraph 11). 37 38 (5) The court should always have regard, amongst other things, to the four 39 questions set out in R v Avis [1998] 2 Cr App R (S) 178, namely: (a) What 40 sort of weapon was involved? (b) What use, if any, was made of it? (c) 41 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 8 of 9 With what intention did the defendant possess it? (d) What is the 1 defendant's record? (See, for example, R v MccLeary [2014] EWCA Crim 2 302 at paragraph 11.) 3 4 (6) The reference in the section to the circumstances of the offender is 5 important. It is relevant that an offender is unfit to serve a five-year 6 sentence or that such a sentence may have a significantly adverse effect 7 on his health (Rehman at paragraph 15; R v Shaw [2011] EWCA Crim 8 167 at paragraphs 6-7). 9 10 (7) Each case is fact-specific and the application of the principles dependent 11 upon the particular circumstances of each individual case. Limited 12 assistance is to be gained from referring the court to decisions in cases 13 involving facts that are not materially identical (see, for example, R v 14 Stoker [2013] EWCA Crim 1431 at paragraph 22). 15 16 (8) Unless the judge is clearly wrong in identifying exceptional circumstances 17 where they do not exist or clearly wrong in not identifying exceptional 18 circumstances where they do exist, this Court will not readily interfere 19 (Rehman at paragraph 14).” 20 21

¶ [25] In essence, in the instant case the defendant describes herself as a victim of her 22 circumstances. In summary it is said that childhood incidents and trauma may have led 23 to the choices that she has made in her adult life. Having made the choices, she ended 24 up in this relationship and as she says in her own words, “made a bad partner choice”. 25 26

¶ [26] The Court does not consider that it can be said that, making bad relationship choices, 27 despite what happened in the past to her and despite the intervention of the Court by 28 way of a suspended sentence, or that her fear of reprisals, or personal circumstances 29 each on their own or taken together constitute exceptional circumstances. 30 31

¶ [27] In the Court’s view there is nothing in the circumstances looked at holistically which 32 can be regarded as exceptional, either in relation to the defendant or to the offence. 33 Neither is there any such single striking or specific feature which in this Court’s view 34 would justify a finding of exceptional circumstances. 35 36

¶ [28] The Court has also considered whether the minimum sentence would be 37 disproportionate and/or arbitrary in light of all the circumstances of this case. The Court 38 230629 R v Thalia Barnes and Marcus Manderson – Ind. 11 of 2022. Coram: Richards, J KC – Sentence Judgment Page 9 of 9 is satisfied that imposing the minimum term in this case would not result in such a 1 sentence. 2 3

¶ [29] The sentence therefore in respect of Count 1 is the minimum term of 10 years 4 imprisonment. 5 6

¶ [30] In respect of Count 2, the sentence is 12 months imprisonment, which is to be served 7 concurrently. 8 9

¶ [31] Time served on remand is to be deducted. 10 11

¶ [32] The defendant was on a curfew for the period, 24th December 2021 to 2nd December 12

¶ [2022] Time spent on curfew is credited to her of 171½ days. The time credited is 50% 13 of the total number of curfew days. 14 15

¶ [33] The firearm and ammunition are ordered forfeited to the Crown to be destroyed. 16 17 Dated this the 29th day of June 2023 18 19 The Hon. Justice Cheryll Richards KC 20 Judge of the Grand Court 21