R v Smith (Kevan Maxhoward) and Ford (Sharis Alexandra) - Sentence Judgment

¶ _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 1 of 14 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT Nos: 7 & 32/2022 4 5 6 REX 7 8 v 9 10 KEVAN MAXHOWARD SMITH 11 12 SHARIS ALEXANDRA FORD 13 14 Appearances: Mrs. Nicole Petit for the Crown 15 16 Mr. Jonathon Hughes of Samson Law for 17 the Defendant Kevan Smith 18 19 Mr. Crister Brady of Brady Attorneys for 20 the Defendant Sharis Ford 21 Before: Justice Frank Williams (Actg.) 22 Heard: 10th March 2023 23 24 25 26 HEADNOTE 27 Criminal Law – Possession of an unlicenced firearm and ammunition – 28 Sections 15 (1) and 15(5) of the Firearms Act – Exceptional circumstances 29 argued - Sentences following jury trial. 30 31 32 SENTENCE JUDGMENT 33 34 35 36 37 38 39 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 2 of 14

¶ [1] The defendants - Kevan Maxhoward Smith and Miss Sharis Alexandra Ford - 1 pleaded not guilty to the offences of possession of an unlicensed firearm, and, 2 possession of an unlicensed firearm (ammunition), contrary to s.15(1) and s.15(5) of 3 the Firearms Act (2008 Revision) and elected trial by jury. I presided over the trial, 4 which ran for five days – from Wednesday the 2nd November to Tuesday the 8th 5 November 2022. On the 8th November, the jury rendered guilty verdicts in relation 6 to both offences for both defendants. Therefore, the defendants now appear before 7 me for sentencing. 8 9

¶ [2] The conviction came about on the jurors’ accepting that a Tanfoglio nine-millimeter 10 (9 mm) pistol was found in a compartment of a stove beneath the oven when the 11 police conducted a search of an apartment leased to the second defendant, Miss Ford. 12 On the evidence of the condominium manager, Miss Blanca Banks, the apartment 13 was occupied by both defendants - Miss Ford and Mr. Smith. 14 15

¶ [3] A further part of the case against the defendants, accepted by the jury, was that 16 deoxyribonucleic acid (DNA) evidence belonging to both defendants was also found 17 on the firearm and ammunition. 18 19 SUBMISSIONS ON SENTENCING 20

¶ [4] At the mention for sentencing (MFS) hearing, several submissions were made on 21 behalf of both defendants. 22 23

¶ [5] On behalf of the first defendant, Kevan Maxhoward Smith, it was submitted by 24 Counsel, Mr. Hughes, that the Court should regard the possession of the firearm on 25 the part of Mr. Smith as a kind of fleeting possession, as: 26 27 28 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 3 of 14 a. there is no real evidence as to how long the defendant would have had the firearm 1 and ammunition in his possession, and 2 3 b. the jury rejected, by returning a not-guilty verdict, the evidence in respect of the 4 other charge which the Crown had proffered against Mr. Smith (causing 5 harassment, distress and alarm pursuant to s.88B(1) of the Penal Code (2017 6 Revision)). 7 8

¶ [6] It is important to note that, pursuant to s.39(2)(b) of the Firearms Act, there is a 9 mandatory minimum sentence that the Court should apply where a conviction occurs 10 after a trial. The mandatory minimum for a conviction following a trial is ten (10) 11 years’ imprisonment. Had it been the case that there were guilty pleas by both 12 defendants, the mandatory minimum sentence would have been seven (7) years’ 13 imprisonment. 14 15

¶ [7] In this case it is important to note what the relevant section of the Act states in 16 relation to the circumstances in which the court is permitted to go below the 17 mandatory minimum sentence. The relevant part of the section reads as follows: 18 "Minimum sentences for certain offences 19 20

¶ [39] (1) This section applies where- 21 (a) an individual is convicted following a trial or a plea of 22 guilty, by a court of summary jurisdiction or the Grand 23 Court, of an offence under section 3(3), 15(5) or 18(6); 24 (b) the offence was committed on or after 15th November, 25 2005; and 26 (c) the offence is in respect of a machine gun, sub-machine 27 gun, rifle, shot gun, pistol, or any lethal barrelled 28 weapon from which any shot, bullet or other missile can 29 be discharged. 30 (2) Notwithstanding sections 6(2) and 8 of the Criminal Procedure 31 Code (2006 Revision), the court of summary jurisdiction or the 32 Grand Court before which the individual pleads guilty or is 33 convicted, shall- 34 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 4 of 14 (a) in a case where the individual pleads guilty, impose a 1 sentence of imprisonment for a term of at least seven 2 years (with or without a fine); or 3 (b) in any other case, impose a sentence of imprisonment 4 for a term of at least ten years (with or without a fine), 5 unless the relevant court is of the opinion that there are 6 exceptional circumstances relating to the offence or to the 7 offender which justify its not doing so; and such exceptional 8 circumstances shall be stated by the relevant court. (Emphasis 9 added) 10 (3) …” 11 12 13 EXCEPTIONAL CIRCUMSTANCES EXAMINED 14

¶ [8] Section 39(2) allows a Court to go below the statutory minimum in certain limited 15 circumstances. The main circumstance pursuant to which the court can impose a 16 sentence below the mandatory minimum is where there exists in any particular case 17 what the law refers to as “exceptional circumstances”. 18 19

¶ [9] The meaning of the phrase “exceptional circumstances” has been explored in a 20 number of cases and, among them is the case of R v Kelly1. In that case, at para 11, 21 it was observed as follows: 22 “We must construe 'exceptional' as an ordinary, familiar English 23 adjective, and not as a term of art. It describes a circumstance which is 24 such as to form an exception, which is out of the ordinary course, or 25 unusual, or special, or uncommon. To be exceptional a circumstance 26 need not be unique, or unprecedented, or very rare; but it cannot be one 27 that is regularly, or routinely, or normally encountered.” 28 29 30

¶ [10] In the Concise Oxford English Dictionary, the word “exceptional” is defined as: 31 “unusual; not typical”. 32 33 34 35 1 [2000] QB 198 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 5 of 14

¶ [11] Also referred to by both Crown and Defence Counsel before me is the case of R v 1 Avis2, which discussed the considerations to be borne in mind when trying to decide 2 on what sentence is appropriate. The following is the dictum of Lord Bingham of 3 Cornhill: 4 ‘The appropriate level of sentence for a firearms offence, as for any 5 other offence, will depend on all the facts and circumstances relevant to 6 the offence and the offender, and it would be wrong for this court to seek 7 to prescribe unduly restrictive sentencing guidelines. It will, however, 8 usually be appropriate for the sentencing court to ask itself a series of 9 questions: 10 11 (1) What sort of weapon is involved? Genuine firearms are more 12 dangerous than imitation firearms. Loaded firearms are more 13 dangerous than unloaded firearms. Unloaded firearms for 14 which ammunition is available are more dangerous than 15 firearms for which no ammunition is available. Possession of a 16 firearm which has no lawful use (such as a sawn-off shotgun) 17 will be viewed even more seriously than possession of a firearm 18 which is capable of lawful use. 19 (2) What (if any) use has been made of the firearm? It is necessary 20 for the court, as with any other offence, to take account of all 21 circumstances surrounding any use made of the firearm: the 22 more prolonged and premeditated and violent the use, the more 23 serious the offence is likely to be. 24 (3) With what intention (if any) did the defendant possess or use the 25 firearm? Generally speaking, the most serious offences under 26 the Act are those which require proof of a specific criminal 27 intent (to endanger life, to cause fear of violence, to resist arrest, 28 to commit an indictable offence). The more serious the act 29 intended, the more serious the offence. 30 31 (4) What is the defendant's record? The seriousness of any firearm 32 offence is inevitably increased if the offender has an established 33 record of committing firearms offences or crimes of violence.” 34 35 36

¶ [12] In addition to this guidance on which Counsel for the Crown and Counsel for the 37 Defence agree, Counsel cited a number of cases. These will be considered briefly 38 further on in this judgment. 39 40

¶ [13] I note here that I have read the Social Inquiry Reports (SIRs) in relation to both 41 defendants. 42 2 [1998] 1 Cr. App. R. 420 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 6 of 14

¶ [14] Against the background of all the foregoing, there is nothing that would make me 1 deviate from what the Crown has put forward in relation to the first defendant, Mr. 2 Smith, for the imposition of a sentence which ties in with the Firearms Act and the 3 usual sentences imposed. 4 5

¶ [15] In relation to the defendant Mr. Smith, I have taken into account some of the positive 6 features of his SIR, such as, (a) the fact that he has, for some time, been, (up to the 7 time of trial), gainfully employed and, (b) the fact that he has no criminal convictions 8 that are relevant. 9 10

¶ [16] However, in terms of there being anything put before me that would qualify as 11 exceptional circumstances in relation to the first defendant, I find that there are no 12 exceptional circumstances in relation to the first defendant. 13 14

¶ [17] I have looked at the cases cited and referred to by counsel Mr. Hughes, on the one 15 hand, and, on the other hand, I have also looked at those cited and referred to by Mrs. 16 Pettit in her written submissions. After examining these cases, I am of the view that 17 the circumstances of the case before me do not lead to a proper finding of exceptional 18 circumstances existing in the case of the first defendant, Mr. Smith. 19 20

¶ [18] This is a summary of the cases cited by Mrs. Pettit: 21 22 23 24 25 26 27 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 7 of 14 Case Plea Sentence

¶ [1] R v Jordan Powell – Ind #10/17 Guilty Nine years

¶ [2] R v Kylan Hunter – Ind # 55/16 Guilty Nine years

¶ [3] R v Robert Terry – Ind #46/11 & CICA 29/11 Guilty 12 years – reduced by CA to nine years

¶ [4] R v Rohan Marshall – Ind # 21/09 Guilty Seven years

¶ [5] R v Leon Hydes – Ind # 28/08 & CICA 26/2008 Guilty Eight years – affirmed by CA

¶ [6] Richard Parsons v R – SCA 17/11 Guilty Nine years – reduced to seven years in CA

¶ [7] R v Christopher Ebanks – 14/11/2008 Not guilty 10 years – affirmed on appeal

¶ [8] R v Seymour Ramsay – Ind # 88/12 Guilty Seven years

¶ [9] R v John Smith – Ind # 37/17 Guilty Seven years 1

¶ [19] In seeking to persuade the Court to treat the circumstances of possession in this case 2 as exceptional and thus impose a sentence below the mandatory minimum stipulated 3 for sentences after trial, Mr. Hughes made the following submission at paragraph 4

¶ [10] of his written submissions and cited two cases: 5 “[10] The Grand Court has found on numerous occasions that 6 ‘fleeting possession’ is a category of exceptional circumstance 7 capable of warranting a sentence below the statutory minimum. 8 1 (Footnote 1: See by way of example: R v Kayla Powery Hewitt 9 (sentence of 18 months suspended for 2 years imposed by Quin 10 J on Ind 61/17), and R v Sean Luke Dunbar (sentence of 18 11 months suspended for 2 years imposed by Wood J on Ind 12 59/15).” 13 14 15 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 8 of 14

¶ [20] On behalf of the second defendant, Ms. Ford, submissions from Counsel, Mr. Brady, 1 that exceptional circumstances exist are to be found in his written submissions and 2 seem to have at their centre the suggestion that the second defendant is, and has been, 3 in fear of the first defendant, Mr. Smith. 4 5

¶ [21] With the exception of R v Christopher Ebanks, the cases cited by Mrs. Pettit for the 6 Prosecution, show sentences of between seven and nine years imposed in 7 circumstances of guilty pleas, and not after a trial, as in the instant case. 8 9

¶ [22] Those cited by Mr. Hughes, although meant to show sentences in cases in which 10 exceptional circumstances were found, both deal with guilty pleas, as well. Those 11 cases also involved cooperation with the police. 12 13

¶ [23] On the information available to this court: 14 15 a. In the Powery-Hewitt case, Ms. Powery-Hewitt pleaded guilty and explained the 16 circumstances in which she came to be in possession of the firearm. 17 18 b. In the Sean Luke Dunbar case, Dunbar testified for the Crown against another 19 person with whom he was charged as to the circumstances in which he came to 20 be in possession of the firearm. He also cooperated with the police from the start, 21 when the firearm was discovered. 22 23

¶ [24] It is not difficult to see how, in these two cases, a finding of the existence of 24 exceptional circumstances might have been possible. 25 26

¶ [25] In the case before me, however, both defendants (and especially the first defendant, 27 Mr. Smith) are maintaining their innocence, as they did throughout their trial. With 28 regard to the first defendant, Mr. Smith, this is what is reported about his attitude 29 towards the offence at page 8 of the SIR: 30 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 9 of 14 “…Mr. Smith still maintains his innocence and urges that he does not 1 know anything about the firearm, the ammunition, or how it came to be 2 in the apartment.” 3 4

¶ [26] In putting this forward, Mr. Smith seems not to recall that, on the jury’s finding, it 5 was likely to be his and Ms. Ford’s DNA that were found on the firearm and 6 ammunition. In addition, there was other evidence the jury accepted in finding both 7 defendants guilty. 8 9

¶ [27] The second defendant, Ms. Ford, tries, in the information she gave for the SIR, to 10 get by this important consideration. 11 12

¶ [28] Miss Ford, (perhaps more so than the first defendant, Mr. Smith) has sought, after 13 her conviction, to put forward what might appear to be an attempt to persuade the 14 Court that exceptional circumstances exist in this case. 15 16

¶ [29] To further address Ms. Ford’s efforts to persuade the Court that exceptional 17 circumstances exist in her case, I note that it appears to me that Mrs. Pettit is correct 18 in her submission that, in the cases in which exceptional circumstances have been 19 found in this jurisdiction, the facts and circumstances which form the basis on which 20 a court concluded that exceptional circumstances existed, were presented during the 21 course of a trial (and not after a conviction at the time of sentencing, as the second 22 defendant, Ms. Ford, now seeks to do) 23 24

¶ [30] So, in relation to the second defendant Ms. Ford, we have one defence being put 25 forward during the trial and then, after conviction, an attempt to put another account 26 before the Court – all in an effort to create a basis on which the Court is being asked 27 to find that there are exceptional circumstances. 28 29 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 10 of 14

¶ [31] To explain this Court’s view of Ms. Ford’s attempts to put this other account before 1 this Court at this stage I note: 2 3 a. Based on the fact that Ms Ford is now saying that she had seen the firearm on a 4 prior occasion, it might have been better if she had attempted to enter a plea of 5 guilty in relation to the offences. Had Ms. Ford entered a guilty plea – throwing 6 herself at the mercy of the Court by explaining particular circumstances to which 7 she has only now referred after conviction in the social inquiry report – she may 8 have stood a better chance at persuading the court in her favour. I am not making 9 a definitive finding on this aspect of the matter, but certainly Ms. Ford would 10 have stood a better chance of persuading the court in these circumstances. 11 During trial, she put forward a defence denying all knowledge of the presence 12 of the firearm in her apartment and then, now, attempts to change her story when 13 the verdict came in. 14 15

¶ [32] It is therefore this Court’s view that, given her conviction, and the mandatory 16 minimum sentence she now faces, she has a strong motivation to now attempt to 17 explain matters that she first denied. 18 19

¶ [33] Additionally, at least some of the matters she now asserts, might be regarded as 20 prejudicial to Mr. Smith, are not evidence or part of an explanation coming after a 21 guilty plea and are therefore rejected by this Court. In fact, Mr. Hughes, on behalf of 22 Mr. Smith, objected to their use in the sentencing exercise. 23 24

¶ [34] In the court’s finding, there are no exceptional circumstances in relation to either 25 offender or the offences for which they have been convicted. In coming to this view 26 I have also given consideration to all the cases, including the other cases cited by 27 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 11 of 14 Mrs. Pettit, such as the case of R v Zakir Rehman and Gary Dominic Wood3, Leon 1 Hydes v R4 and Chavarria-Atily v R5. 2 3 APPROACH TO SENTENCING 4

¶ [35] In R v James Henry Sergeant6, Lawton LJ made the following observation on 5 approaching sentencing: 6 “What ought the proper penalty to be? We have thought it necessary not only to 7 analyse the facts, but to apply to those facts the classical principles of 8 sentencing. Those classical principles are summed up in four words: retribution, 9 deterrence, prevention and rehabilitation. Any judge who comes to sentence 10 ought always to have those four classical principles in mind and to apply them 11 to the facts of the case to see which of them has the greatest importance in the 12 case with which he is dealing.” 13 14 15

¶ [36] A perusal of the first defendant’s criminal record as well as a review of his SIR both 16 indicate to me that there are no real or significant aggravating features in this case in 17 respect of the first defendant, Mr. Smith. 18 19

¶ [37] In considering what would be an appropriate sentence for the first defendant, Mr. 20 Smith, I bear in mind the classical principles of sentencing or objects of sentencing. 21 22

¶ [38] I will refer as well to the Cayman Islands Sentencing Guidelines which provide 23 general guidance to a sentencing court. At page 8 of those Guidelines, the following 24 is stated: 25 “1. Aims of Sentencing 26 27 In sentencing an offender, the Court has to balance a number of 28 competing interests and objectives, tailoring the punishment to the 29 individual circumstances of the offender whilst ensuring that the 30 punishment is commensurate with the seriousness of the offence. A 31 number of aims govern the sentencing process and it will be rare for 32 them all to be met; the task of the Court is to consider which of these 33 3 [2005] EWCA Crim 2056 4 App no 26 of 2008 5 [2009] CILR 119 6 (1974) 60 Cr. App. R. 74 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 12 of 14 aims will be best served by the sentence to be passed on an individual 1 offender. 2 The following are the principal aims of sentencing: 3 (a) Incapacitation 4 (b) Deterrence 5 (c) Punishment 6 (d) Rehabilitation, 7 (e) Restitution” 8 9

¶ [39] Looking at the principal aims to be considered for deciding on a sentence that would 10 be meet and right in a particular case, there is, for example, the object of deterrence: 11 I note that there are two aspects to deterrence: there is specific deterrence, which is 12 the aim of deterring the particular offender from reoffending, and there is also 13 general deterrence, which is to deter any possible like-minded person from 14 committing a similar offence. 15 16

¶ [40] There is also the object of rehabilitation: This objective aims to address allowing 17 the offender to find some way of becoming an upright member of society and to 18 rejoin society as an improved person when he or she completes his or her sentence. 19 Some emphasis is usually given to this area especially where the offender or 20 offenders are youthful, usually below the age of 23. I note that in this case, both of 21 them are, 28 years of age - Mr. Smith, having been born the 24th day of July 1994, 22 and Miss Ford, born on the 21st of September 1994. 23 24

¶ [41] There is also the aim of punishment/retribution: This is to address the objective of 25 paying back the offender for the wrong he has done to society. 26 27

¶ [42] In this case, as I indicated earlier, there are no real or significant aggravating or 28 mitigating factors which would serve to alter a starting point of 10 years. 29 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 13 of 14

¶ [43] Taking everything into account, (especially where no exceptional circumstances 1 exist to permit this court properly to depart from the mandatory minimum) the 2 sentence of the court is that the first defendant, Mr. Smith, will serve a sentence of 3 10 years’ imprisonment in respect of the firearm (Count 1) and one year’s 4 imprisonment in respect of the ammunition (Count 2). The sentences are to run 5 concurrently. He is to be credited for the time that he has spent in custody on pre- 6 sentence remand. 7 8

¶ [44] I now turn my considerations for sentence to the second defendant, Ms. Ford. 9 10

¶ [45] I have considered the submissions made by Counsel, Mr. Brady, on behalf of Miss 11 Ford. I have read the SIR as well as her criminal record search. For this offender, it 12 also does not appear that there are any convictions of any relevance to the offences 13 for which she is now before the Court, and which formed the basis of her conviction. 14 15

¶ [46] I have considered, in relation to Miss Ford, the cases cited by Mrs. Petit and the 16 submissions made by Mr. Brady – repeating the point I made above at paragraph 29. 17 18

¶ [47] In relation to Miss Ford as well there is nothing I have seen by way of mitigating 19 circumstances or by way of aggravating circumstances to move “the needle” in either 20 direction. 21

¶ [48] Therefore, in the result, it is the same sentence that the court will impose on Miss 22 Ford in relation to the offences, using a starting point of 10 years’ imprisonment. 23 24

¶ [49] Accordingly, in relation to the possession of an unlicensed firearm (Count 1) the 25 sentence for Ms. Ford is 10 years’ imprisonment. And in relation to the unlawful 26 possession of ammunition (Count 2) the sentence is a year’s imprisonment. The 27 sentences are to run concurrently. 28 _____________________________________________________________________________________________ Sentence Judgment. R v. Smith (Kevan Maxhoward) and Ford (Sharis Alexandra). Ind. 7 & 32/2022. Coram: Acting Justice Frank Williams. Date: 5th May 2023 Page 14 of 14

¶ [50] Miss Ford as well, of course, is also to be credited with the time she has spent in 1 custody on pre-sentence remand. 2 3

¶ [51] I order that the firearm and ammunition are to be forfeited and destroyed. 4 5

¶ [52] Those are the sentences of the court. 6 7 8 Dated this the 5th May 2023 9 10 11 Justice Frank Williams (Actg.) 12 Acting Judge of the Grand Court 13 14