R v Barnes (Dencle Vic) - Sentence Judgment

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> <td>INDICTMENT NO：17 of 2021</td> </tr> <tr> <td>CRIMINAL SIDE</td> </tr> <tr> <td>THE QUEEN</td> </tr> <tr> <td>DENCLE VIC BARNES</td> </tr> <tr> <td>Appearances：</td> <td>Mr. Greg Walcolm，Senior Crown Counsel，for the Crown</td> </tr> <tr> <td>Mr. Jonathan Hughes，Samson Law for the Defendant</td> </tr> <tr> <td>Before：</td> <td>Mrs. Justice Marlene I. Carter (Actg.)</td> </tr> <tr> <td>Date of Hearing：</td> <td>26 May 2022</td> </tr> <tr> <td>Sentence Delivered：</td> <td>8 June 2022</td> </tr> </table> <h2>HEADNOTE</h2> <p>Criminal Law-Sentence-Illicit Trafficking-Possession of Unlicenced Firearm-Totality-Concurrent Sentence</p> <h2>SENTENCE JUDGMENT</h2> <ol> <li>The Defendant was convicted of the following offences on 18 of May 2022：</li> </ol> <ol start="28"> <li>Illicit trafficking of 55.5 pounds of ganja contrary to Section 19(2)(ii)(b) of the Misuse of Drugs Act，2017 Revision</li> <li>Possession of an unlicensed Raven Arm .25 semi-automatic pistol contrary to section 15 (5) of the Firearms Act (2008 Revision)</li> </ol> ```
```markdown d. Possession of 61 rounds of ammunition contrary to section 15 (5) of the Firearms Act (2008 Revision).

¶ [2] The evidence presented by the prosecution and accepted by the jury was as follows: i. The Defendant approached Andrew Beckford in Whitehouse, Westmoreland Jamaica on the 16 May 2020. Beckford was a fisherman and the Defendant arranged with Beckford to assist in transporting drugs. On the 19 May 2020 the Defendant returned to Whitehouse. He contacted Beckford and Beckford met him on the beach at Whitehouse. The Defendant had packed a canoe with fuel, drugs, food and drink and he and Beckford set out that evening from Whitehouse. ii. The Defendant and Beckford were at sea from 19 May into the early hours of the 21 May 2020 when they arrived in Cayman waters in the vicinity of Buena Vista, at Spotts. The Defendant and Beckford began to take the drugs off the boat when they were interrupted, and the Defendant ran off along the beach. Beckford also left the scene at the beach. iii. On Thursday 21 May 2020 at around 5:15 am the police responded to a report and went to the beach behind Buena Vista in the vicinity of No. 1280 Shamrock Road, George Town Grand Cayman. Upon their arrival they observed a blue 28-foot Jamaican style canoe with the words, "WH: DEANDRA ... W:H... RASTA" written on its left side, and a number of large blue fuel bottles along the beach. The police also observed total of 5 bags, some from within the boat and others were seen floating in the surf on the beach near the boat. iv. The five bags were found to contain, in total, 55.5 pounds of ganja. v. Upon making further searches of the beach the police recovered a black handbag from under coconut tree branches on the sand. This bag was later examined and found to contain the following items: - Two defined firearms, as defined in the Firearms Act (2008 Revision) - Two defined firearms, as defined in the Firearms Act (2008 Revision) - Two defined firearms, as defined in the Firearms Act (2008 Revision) - Two defined firearms, as defined in the Firearms Act (2008 Revision) - Two defined firearms, as defined in the Firearms Act (2008 Revision) The first firearm was a chrome colour Brazilian made, Amadeo Rossi's 357 magnum revolver with a black rubber pistol grip and bearing serial number F423185. The other ```
The firearm was a chrome color, USA-made, model PM-25, Raven Arms .25 semi-automatic pistol, containing a magazine, bearing serial number 678198. - A total of 61 rounds of ammunition, as defined by the Firearms Law (2008 Revision), wrapped together in cellophane plastic wrap, which included: - Ten .38 cartridges; - One 357 magnum cartridge; - Fifty Remington UNC 9mm cartridges. At approximately 8:05 am whilst the police were still at the scene, a male member of the public handed them a ziploc bag containing a CAT cellphone, a charging cable, and lion pride wrapping papers, stating that it was found that morning after he followed drag marks seen on the sand, thinking that the drag marks were made by a turtle. At around 11:11 am on the 2 May 2020, the police were travelling in a marked police vehicle heading in an easterly direction along Shamrock Road in the vicinity of Spotts Dock when they were stopped by Andrew Beckford, who was standing on the left side of the road. At the time when he stopped the police, he was wearing a short brown pants, a long sleeve shirt with a hoodie, and no shoe. Andrew Beckford was then transported to the Cayman Islands Detention Centre where he was arrested for offences relating to the firearms, ammunition, and ganja recovered on the beach behind Buena Vista. Beckford identified the blue Jamaican style canoe which had been seized by the Police as being that which he came in from Jamaica. He was interviewed and during the interview he named the Defendant as being the person who had first contacted him in Whitehouse, Jamaica about transporting the drugs by canoe. During the course of the interviews, Andrew Beckford identified Dencle Vic Barnes as the other person who was with him on the boat after he was shown an identification photospread with Mr. Barnes' photograph among photographs of 11 other men. The police obtained telefrom the seized phones on the beach. The police phone records on the beach indicated that the Defendant was more likely that the Defendant was the source of the DNA recovered from the bottle than if it were some other unknown person, unrelated to him. 220608 R v Barnes (Dencle Vic) - IND 17 of 2021 - Sentence Judgment Page 3 of 16
Statutory Provisions and Case Law ## Section 19 of the Misuse of Drugs Act (2017 Revision) ("MDA") states: ### (1) This section applies to: - (a) a Cayman ship; - (b) a ship registered in a state other than the Islands which is a party to the Vienna Convention; and - (c) a ship that is not registered in any country or territory. ### (2) A person on a ship to which this section applies, wherever it may be who: - (a) has a controlled drug in his possession; or - (b) is knowingly concerned in the carrying or concealing of a controlled drug on the ship, knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to section 3(1) or the law of any state other than the Islands commits an offence and is liable: - (i) if the controlled drug is a hard drug: - (A) on summary conviction to a fine of twenty thousand dollars and to imprisonment for five years; or - (B) on conviction on indictment to a fine and to imprisonment for life; - (ii) if the controlled drug is not a hard drug: - (A) on summary conviction to a fine of ten thousand dollars and to imprisonment for two years; or - (B) on conviction on indictment to a fine and to imprisonment for fourteen years. ### (3) A certificate purporting to be issued by or on behalf of the government of a state to the effect that the import or export of a controlled drug is prohibited by the law of that state is evidence of the matter stated." ## The following Section of the MDA is also relevant in this case: ### Section 25 ### (1) If any constable or customs officer has reasonable cause to suspect that any vessel is being used for the commission of any offence against this Law, he may, with the commission of any warrant, board such vessel and search it for the purpose of ascertaining the truth of such suspicion and, if the warrant so authorises, seize and detain such vessel and, if the warrant so authorises, seize and detain such vessel and, if the warrant so authorises, 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```html <table> <tr> <td>1</td> <td>(a)</td> <td>has been used in connection with or for the purpose of committing</td> </tr> <tr> <td>2</td> <td>or</td> <td>facilitating the commission of such offence; or</td> </tr> <tr> <td>3</td> <td>(b)</td> <td>was intended by him to be used for that purpose, the court shall</td> </tr> <tr> <td>4</td> <td>order the forfeiture to the Crown of such vessel."</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>In Mitchell Comrie v The Queen'</td> <td>the Learned Chief Justice referred to principles which should</td> </tr> <tr> <td>7</td> <td>guide a sentencing judge for offences relating to the importation of large quantities of drugs. These</td> </tr> <tr> <td>8</td> <td>are:</td> </tr> <tr> <td>9</td> <td>i.</td> <td>The quantity of ganja;</td> </tr> <tr> <td>10</td> <td>ii.</td> <td>The Defendant's role; and</td> </tr> <tr> <td>11</td> <td>iii.</td> <td>Whether the Defendant has previous convictions.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>In Comrie, the sentence after a guilty plea was three years' imprisonment. The appellant in that</td> </tr> <tr> <td>14</td> <td>case had no previous convictions, the amount of ganja that could be attributed to him was 50lbs</td> </tr> <tr> <td>15</td> <td>and he was found to have had only a secondary role in the enterprise. In such circumstances the</td> </tr> <tr> <td>16</td> <td>court found that "a starting point of 3-4 years' imprisonment was appropriate."</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>I note the remarks of the Court of Appeal in the case of R v Rovan Johnson et al'</td> <td>on the matter</td> </tr> <tr> <td>19</td> <td>of the suggested starting point in Comrie. The Cayman Islands Court of Appeal (CICA) noted:</td> </tr> <tr> <td>20</td> <td>"We would add this. More than 8 years have passed since the judgment of the Chief</td> </tr> <tr> <td>21</td> <td>Justice in Comrie. He did not have the benefit of the sort of argument considered</td> </tr> <tr> <td>22</td> <td>by this court (albeit in the context of section 19). It may well be that were he now</td> </tr> <tr> <td>23</td> <td>considering the matter, he would have in mind a somewhat higher starting point</td> </tr> <tr> <td>24</td> <td>than he suggested then, even in the context of importation contrary to section</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> <td>In R v Rovan Johnson et al'</td> <td>the CICA addressed the applicability and use, in cases concerning</td> </tr> <tr> <td>28</td> <td>illicit trafficking, of the UK Drugs Definitive Guidelines as being matters to which a sentencing</td> </tr> <tr> <td>29</td> <td>Court may have regard:</td> </tr> <tr> <td>30</td> <td>“Intent, there is) follow the</td> <td>ing</td> <td>re is no Canteristics r</td> </tr> <tr> <td>31</td> <td>ice RichardsDefinitive G</td> <td>ntences for t</td> <td>‘archie. Tayi The chanela</td> </tr> <tr> <td>32</td> <td>our judgm good reasonuideline for</td> <td>her are simirac</td> </tr> <tr> <td>33</td> <td>reasons Just gave in n tothe</td> <td>he maximum sePillhe offendlar.</td> </tr> <tr> <td>1SCA 001/2011</td> <td>nan guid</td> </tr> <tr> <td>2CICA 24/2019 &amp; 25/2019 judgment delivered on the 26th of November 2020 by Goldring J., President, at</td> <td>ting to</td> </tr> <tr> <td>paragraph 45</td> </tr> <tr> <td>3CICA 24/2019 &amp; 25/2019 judgment delivered on the 26th of November 2020 by Goldring J., President.at</td> </tr> <tr> <td>paragraph 50</td> </tr> <tr> <td>220608 R v Barnes (Dencle Vic) - IND 17 of 2021 - Sentence Judgment</td> </tr> <tr> <td>Page 5 of 16</td> </tr> </table> ```
```markdown culpability and harm, are equally apposite. As Justice Richards said, the starting point for a Category 1 class B offence in respect of someone who undertakes a significant role is 5 years 6 months (66 months) custody, with a range of 5-7 years. In *R v Linton Pillarchie et al*<sup>4</sup>, a case of illicit trafficking, the CICA referred to its earlier ruling in *Rovan Johnson* on this issue and reaffirmed that for offences of this nature the sentencing Court can have regard to the UK Drugs Definitive Guidelines<sup>5</sup>. In this judgment, the CICA affirmed sentences imposed by the Grand Court for several Defendants relating to 673 pounds of ganja and indorsed the approach of Richards J. in the Grand Court as it previously had in *Rovan Johnson et al*. The approach of Richard J. in *Pillarchie*, was as follows:<sup>6</sup> *23. The Guidelines provide for the category of harm to be determined by the quantity of the drug. The starting point for Category 1 is based on 200kg of cannabis. In this case, given that the quantity of the drug is 673 pounds or 305 kilograms, this offence would fall into Category 1.* *24. Culpability is demonstrated by an offender’s role in the enterprise. The roles are identified by one or more of a number of characteristics. A leading role would include:* * * Directing or organizing, buying and selling on a commercial scale. * * Substantial links to, and influences on others in a chain. * * Close links to original source. * * Expectation of substantial financial gain. *25. A significant role would involve an operational or management function within a chain, motivation by financial or other advantage, whether or not operating alone, or some awareness and understanding of the scale of the operation.* *26. A lesser role includes factors such as, performing a limited function under direction, being engaged by pressure, coercion or intimidation, involvement in naivety, having no influence on those above in the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no 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having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no influence on the operation of the operation, having no 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```html <table> <tr> <td>11.</td> <td>The UK Sentencing Guidelines may guide the Court as to the factors to be considered when determining an appropriate sentence for a Defendant as in this case. The appropriate equivalent guideline from the UK’s Sentencing Council is entitled ‘Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug.’ For Class B drugs such as ganja, the maximum sentence is 14 years imprisonment, as in this jurisdiction.</td> </tr> <tr> <td>12.</td> <td>In Rovan Johnson and Campbell, the CICA found that the appropriate sentence for illicit trafficking of drugs involving 1063 pounds of ganja was 4 years imprisonment after guilty pleas. In Pillarchie the sentence after guilty pleas for importation of 673 pounds of ganja ranged from 4 years and 3 months to 6 years and 1 month imprisonment. Counsel for the Defendant in the instant case has also referred the court to the case of R v Russell, Smith and Ors in which the Defendants were sentenced, after guilty pleas, to sentences ranging from 2 years to 2 years and 8 months imprisonment for trafficking of 454.41 pounds of ganja.</td> </tr> <tr> <td>13.</td> <td>Regarding Harm: The category of harm depends on the quantity of drugs involved. In this case that quantity is 55.5 pounds of ganja which converts to 25.2 kg. This quantity falls somewhere between category 2 [40 kg ganja] and category 3 [6 kg ganja] harm, per the UK Guidelines. This is accepted by the Crown and counsel for the Defendant.</td> </tr> <tr> <td>14.</td> <td>Counsel for the Defendant submitted that as regards Culpability:</td> </tr> <tr> <td>15.</td> <td>Counsel argued that the much of what the Crown offered in support of its submission as to the extent or level of the Defendant’s involvement in the enterprise was based on mere inference, that there was to establish the significant links required for a finding of a leading role, that the recruckford was a for a finan</td> </tr> <tr> <td>16.</td> <td>Counsel for the Defendant therefore submitted that an appropriate starting point for the offence of illicit trafficking would be one of 3 years imprisonment.</td> </tr> </table> ```
```html <table> <tr> <td>17.</td> <td>Counsel for the Crown submits: "As it relates to this Defendant's role in the offence there is evidence from which the Court can infer that the Defendant had substantial links to, and influence on, others in the chain, a factor which is indicative of playing a leading role as it relates to culpability under the guidelines."</td> </tr> <tr> <td>18.</td> <td>Counsel for the Crown made the following submission on this aspect:</td> </tr> <tr> <td>6.</td> <td>From the evidence accepted by the jury this Defendant:</td> </tr> <tr> <td>a.</td> <td>Was Involved in communications with persons in Jamaica prior to the 14.05.2020 sending coordinates to one of those persons for a location in Jamaica;</td> </tr> <tr> <td>b.</td> <td>Travelled from Cayman to Jamaica via means other than the usual ports of departure or entry between the 13.05.2020 and 14.05.2020;</td> </tr> <tr> <td>c.</td> <td>Was in communication with other persons in Jamaica between 14.05.2020 and 19.05.2020 when he departed Jamaica to travel to Cayman;</td> </tr> <tr> <td>d.</td> <td>Hired Andrew Beckford, through a third party, to captain the boat that was scheduled to leave Jamaica on 19.05.2020, undertaking to pay Mr. Beckford for his work;</td> </tr> <tr> <td>e.</td> <td>Was present at the dock where the boat departed Jamaica on 19.05.2020 with the vessel already loaded with the bags of ganja;</td> </tr> <tr> <td>f.</td> <td>Provided GPS guidance as well as captained the vessel for parts of the return journey from Jamaica and Cayman.</td> </tr> <tr> <td>7.</td> <td>This evidence provides sufficient support for an inference that this Defendant played a leading role."</td> </tr> <tr> <td>19.</td> <td>Counsel invited the court to consider that the court could upon its the assessment of the factors in this case find that the Defendant's actions fall short of a 'leading role', but that it would be open for the Court to conclude that his role was 'more than a significant role'.</td> </tr> <tr> <td>20.</td> <td>The suggested categorisations from the Crown, result in the following starting points and sentencing ranges:</td> </tr> <tr> <td>1.</td> <td>"The suggested starting point for an offence involving a 'leading role' with respect to culpability, with a balancing of the 'category 2 & 3' with respect to harm is 5 years custody with a sentencing range of 3 years 6 months - 6 years 6 months custody.</td> </tr> <tr> <td>2.</td> <td>ed starting point for an offence involving a 'role' with respect to culpability, with a balancing of the 'category 2 & 3' with respect to harm is 3 years custody with a sentencing range of 2 years - 4 years custody.</td> </tr> </table> ```
```html <table> <tr> <td>3.</td> <td>Should the Court find that the Defendant's played 'more than a significant role'</td> </tr> <tr> <td>with respect to culpability, with a balancing of the 'category 2 & 3' with respect</td> </tr> <tr> <td>to harm is 4 years custody with a sentencing range of 3 years 6 months-5 years</td> </tr> <tr> <td>6 months custody. The increase of 1 year 6 months in the starting point and</td> </tr> <tr> <td>sentencing range would appropriately reflect a finding that the Defendant's role</td> </tr> <tr> <td>was in fact greater than a 'significant role' in this offence."</td> </tr> <tr> <td>7</td> </tr> <tr> <td>21.</td> <td>Counsel for the Crown submitted that there were aggravating features to be considered at sentence:</td> </tr> <tr> <td>(i) The Defendant has a number of previous convictions for drug offences, among these are 8</td> </tr> <tr> <td>previous convictions of similar offences [possession of drugs with intent to supply and</td> </tr> <tr> <td>importation of drugs committed between 1995-2017].</td> </tr> <tr> <td>(ii) This offence was committed whilst the Defendant was on conditional release/license from</td> </tr> <tr> <td>prison for his last conviction for a similar offence, importation of ganja for which he was</td> </tr> <tr> <td>sentenced on the 19 July 2018.</td> </tr> <tr> <td>(iii) The Defendant's failure to respond to previous sentences.</td> </tr> <tr> <td>(iv) The Offence is a prevalent offence.</td> </tr> <tr> <td>(v) Planning of the offence.</td> </tr> <tr> <td>22.</td> <td>While counsel for the Defendant accepted that there are no mitigating features for the court's</td> </tr> <tr> <td>consideration he invited the court to be mindful as it considered the aggravating factors outlined</td> </tr> <tr> <td>above, that not all of the Defendant's previous convictions were for drug importation/trafficking</td> </tr> <tr> <td>offences, that the Defendant may be liable to serve the balance of the term of the offence for which</td> </tr> <tr> <td>he was released on licence and that prevalence may already be accounted for in the sentence range</td> </tr> <tr> <td>suggested by the Guidelines.</td> </tr> <tr> <td>Court's considerations on Count 1</td> </tr> <tr> <td>23.</td> <td>The quantity of drugs in this case is 55.5 pounds or 25.2 kg. There is no issue that this quantity</td> </tr> <tr> <td>falls between category 2 and category 3 harm, per the relevant UK Guidelines to be considered for</td> </tr> <tr> <td>the offence of illicit trafficking.</td> </tr> <tr> <td>24.</td> <td>This court has previously observed that in many instances involving sentences for drug importation</td> </tr> <tr> <td>or illicit his court hasing sent</td> </tr> <tr> <td>result ththen, in such sentence f</td> </tr> <tr> <td>Defendant in the aft</td> </tr> <tr> <td>32</td> <td>the court was led</td> </tr> <tr> <td>33</td> <td>in instancesor</td> </tr> <tr> <td>34</td> <td>assessing the role of the Defendant in the enterprise as per the Guidelines. This is not possible in</td> </tr> <tr> <td>35</td> <td>this case.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>25.</td> <td>I find that the Defendant played a significant role in the enterprise. While there is an attraction to the Crown's submission of a finding of a more than significant role, in the circumstances of this case, given the court's ultimate disposition on sentence, I do not adopt that categorization. The starting point is 3 years custody. The sentencing range is 2 years - 4 years custody.</td> </tr> <tr> <td>26.</td> <td>The aggravating factors in this case warrant an increase to the starting point to take the sentence beyond the suggested sentence range to properly reflect the full extent to which this court should seek to deter this Defendant who has over many years continued to bring illegal drugs to these islands flouting the law and the court's orders and efforts at rehabilitation. This offence was committed while the Defendant was on license from serving a sentence for offences of importation of ganja.</td> </tr> <tr> <td>27.</td> <td>In these circumstances a sentence of 5 years imprisonment on count 1 of illicit trafficking is the appropriate sentence.</td> </tr> <tr> <td>15</td> <td>Unlawful possession of firearm (counts 2 &amp; 3)</td> </tr> <tr> <td>28.</td> <td>There are factors to which the court may have regard, when sentencing in firearms matters. R v Avis. 8 [1998] 1 Cr. App. R. 420, the court noted as follows:</td> </tr> <tr> <td>18</td> <td>“The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions:</td> </tr> <tr> <td>(1)</td> <td>What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.</td> </tr> <tr> <td>(2)</td> <td>What (if any) use has been made of the firearm? It is necessary for the court, as er offence instances surrounding of the to be.</td> </tr> <tr> <td>(3)</td> <td>With what intention (if any) did the Defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>life, to cause fear of violence, to resist arrest, to commit an indictable</td> </tr> <tr> <td>2</td> <td>offence). The more serious the act intended, the more serious the</td> </tr> <tr> <td>3</td> <td>offence.</td> </tr> <tr> <td>4</td> <td>(4) What is the Defendant's record? The seriousness of any firearm offence</td> </tr> <tr> <td>5</td> <td>is inevitably increased if the offender has an established record of</td> </tr> <tr> <td>6</td> <td>committing firearms offences or crimes of violence.</td> </tr> <tr> <td>7</td> <td>Two further questions for the sentencing Court's consideration were added in the</td> </tr> <tr> <td>8</td> <td>authority of R v. Sheen and Sheen [2012] 2 Cr. App. R. (S.) 3:</td> </tr> <tr> <td>9</td> <td>(5) Where was the firearm (or were the firearms) discharged, and who and</td> </tr> <tr> <td>10</td> <td>how many were exposed to danger by its or their use?</td> </tr> <tr> <td>11</td> <td>(6) Was any injury or damage caused by the discharge of the firearm or</td> </tr> <tr> <td>12</td> <td>firearms, and if so how serious was it?"</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>29.</td> <td>On these questions, it was submitted on the Defendant's behalf:</td> </tr> <tr> <td>15</td> <td>“What sort of weapon was involved?</td> </tr> <tr> <td>16</td> <td>The weapons in this case were unloaded handguns, one of which did not have a</td> </tr> <tr> <td>17</td> <td>magazine. One 357 round was available for the magnum, whilst no ammunition was</td> </tr> <tr> <td>18</td> <td>available for the Raven semiautomatic pistol.9 They are firearms which are ‘capable</td> </tr> <tr> <td>19</td> <td>of lawful use’ as per Lord Bingham and are to be treated less seriously than firearms</td> </tr> <tr> <td>20</td> <td>which have no lawful use such as sawn-off shot guns, or more dangerous weapons like</td> </tr> <tr> <td>21</td> <td>machine guns.</td> </tr> <tr> <td>22</td> <td>What use, if any, was made of the firearm?</td> </tr> <tr> <td>23</td> <td>The firearms in this case were not put to any illegal use.</td> </tr> <tr> <td>24</td> <td>With what intention, if any, did the Defendant possess the firearm?</td> </tr> <tr> <td>25</td> <td>There is no information before the Court as to the intention of the Defendants. As per</td> </tr> <tr> <td>26</td> <td>the case of Manahan, 10 the court should not speculate as to the possible use of the</td> </tr> <tr> <td>27</td> <td>firearm, or the reason for its possession by the Defendants.</td> </tr> <tr> <td>28</td> <td>What is the Defendant's record?</td> <td>Althfendant has a</td> <td>offenistory.”</td> <td>cord, he e a</td> </tr> <tr> <td>29</td> <td>ne Dejendant</td> <td>ending in his</td> <td>does</td> <td>related</td> </tr> <tr> <td>30</td> <td>ough the Dea crimina</td> <td>l re</td> <td>ny firearr</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> <td>30.</td> <td>As to the further questions raised in Sheen, on the facts of this case, the firearm was not discharged</td> </tr> <tr> <td>33</td> <td>and there was therefore no injury or damage caused by such discharge.</td> </tr> </table> 220608 R v Barnes (Dencle Vic) - IND 17 of 2021 - Sentence Judgment Page 11 of 16 ```
```html <table> <tr> <td>1</td> <td>31.</td> <td>The Crown does not take issue with the factors that may be considered as regards sentencing for the relevant offence as set out in Avis. However, the Crown takes a somewhat neutral position, that being that the Avis considerations upon the facts of this case should not cause the Court to increase the sentence above the mandatory minimum of ten years, nor are there any exceptional circumstances warranting the imposition of a sentence less than the mandatory minimum of 10 years.</td> </tr> <tr> <td>7</td> <td>32.</td> <td>The Crown submits however that the Aggravating Features identified in relation to these offences should result in an increase in the starting point, above the mandatory minimum.</td> </tr> <tr> <td>(i)</td> <td>The Defendant of previous convictions, clearly showing a failure to respond to previous sentences; and</td> </tr> <tr> <td>(ii)</td> <td>This offence was committed whilst the Defendant was on conditional release/license from prison for his last conviction for a similar offence in 2018;</td> </tr> <tr> <td>(iii)</td> <td>The fact that the Defendant was found to be in possession of more than one firearm</td> </tr> <tr> <td>17</td> <td>33.</td> <td>There are no mitigating factors for the court's consideration.</td> </tr> <tr> <td>19</td> <td>34.</td> <td>Counsel for the Defendant referred the court to the case of R v Gerald Jaleel Bush &amp; Rico Roy Walton7, and submitted that there were strong factual similarities with the present case. The evidence in that case suggested the importation of two firearms and ammunition by boat from Jamaica, however the indictment reflected 3 counts of possession of unlicensed firearms (as in this case). Having been tracked at sea, the Defendants arrived on shore and were confronted by the police and ran. Firearms were later found on the beach and the Defendants were arrested walking on the road.</td> </tr> <tr> <td>27</td> <td>35.</td> <td>In Bush and Walton, each Defendant was sentenced of 10 years imprisonment for each firearm and 5 years imprisonment for the ammunition. The sentences were imposed to run concurrently. The defence submits that such a sentence was appropriate and that this court should adopt the same approach</td> </tr> <tr> <td>30</td> <td>31</td> <td>ncing Judge</td> </tr> </table> <sup>7</sup>Ind. 18/18 <sup>220608 R v Barnes (Dencle Vic) - IND 17 of 2021 - Sentence Judgment</sup> Page 12 of 16 ```
```html <table> <tr> <td>1</td> <td>36.</td> <td>Counsel for the Defendant urged the Court to find that concurrent sentences are appropriate in this case, and that the highest of these should be the already significant minimum sentence of 10 years with respect to the firearms offences.</td> </tr> <tr> <td>2</td> <td>37.</td> <td>The Crown sought to distinguish Bush and Walton with regards to sentence. Counsel for the Crown submitted that it was significant that each of the Defendants in that case were relatively young men, neither of whom had previous convictions for firearms. Counsel submitted that these factors were upmost in the mind of the court at the time of sentence. Counsel submits that the Defendant has significant previous convictions for drug offences.</td> </tr> <tr> <td>11</td> <td>12</td> <td>13</td> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38.</td> <td>39.</td> <td>40.</td> <td>41.</td> <td>42.</td> </tr> <tr> <td>Counts 2 and 3</td> <td>The statutory minimum mandatory sentence of 10 years is the appropriate starting point in this case for each of the offences of possession of unlicenced firearm. I do not find that the factors set out in R v Avis should override the clear provisions of the statute.</td> </tr> <tr> <td>The circumstances of the offenders in R v Bush and Walton are sufficiently different from the Defendant in this case to make that case distinguishable in terms of sentence. In that case the court declined to find that a sentence higher than the mandatory minimum of ten years should be imposed largely based on the age of the Defendants at the time that the offence was committed and the court's finding that even though by the time of sentence each had had previous convictions for drug possession offences, that these did "not point to individuals who are habitual criminals and in particular, criminals".</td> </tr> <tr> <td>This cannot be said of this Defendant in this case whose conviction history with regards the possession of drugs with intent to supply and/or importation stretches from 1995 to present.</td> </tr> <tr> <td>It is a principle of sentencing that an offender should not benefit from a sentence for a guilty plea where he is also being sentenced for other offences for which he has been convicted after trial. By the same token where, as in this case, a statutory minimum sentence is being considered the court must be 9 ensure that is not thereby</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38.</td> <td>39.</td> <td>40.</td> <td>41.</td> <td>42.</td> </tr> <tr> <td>in the seeing approy benefit wh</td> <td>sentenced</td> <td>ence not c</td> <td>the</td> <td>entence not briate for</td> <td>the</td> <td>ng and their</td> </tr> <tr> <td>ntence not briate for</td> <td>ng and their</td> </tr> <tr> <td>I find that a sentence in excess of the mandatory minimum on counts 2 and 3 is appropriate. The sentence on count 2 is 14 years imprisonment. On Count 3, the sentence is 14 years imprisonment.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>Unlawful possession of a firearm (ammunition)，Count 4</td> </tr> <tr> <td>2</td> <td>43.</td> <td>The mandatory minimum sentence does not apply to this count. The maximum sentence is one of</td> </tr> <tr> <td>3</td> <td>20 years imprisonment.</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>44.</td> <td>The dicta in Avis [1998] 2 Cr. App. R. (S.) 178 and R v. Sheen and Sheen [2012] 2 Cr. App. R.</td> </tr> <tr> <td>6</td> <td>(S.) 3 are applicable to this Count.</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>45.</td> <td>The Defendant was found in possession of a considerable number， sixty-one rounds， of</td> </tr> <tr> <td>9</td> <td>ammunition. In the case of Kemar Anthony Boothe v The Queen， a sentence of 1 year custody，</td> </tr> <tr> <td>10</td> <td>after a guilty plea， was imposed for the unlawful possession of 15 rounds of ammunition. This</td> </tr> <tr> <td>11</td> <td>was the sentence prior to a 50% reduction in sentence for the Defendant's assistance to the police in</td> </tr> <tr> <td>12</td> <td>that case. It follows that the court must have considered a sentence in the region of 1 year and 6</td> </tr> <tr> <td>13</td> <td>months custody as being appropriate for the unlawful possession of 15 rounds of ammunition.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>46.</td> <td>In this case the amount of ammunition， 61 rounds of ammunition， warrants that a higher starting</td> </tr> <tr> <td>16</td> <td>point should be adopted. The court adopts a starting point of 3 years custody.</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>Aggravating Features</td> </tr> <tr> <td>19</td> <td>47.</td> <td>There are significant aggravating features in relation to this offence：</td> </tr> <tr> <td>20</td> <td>a.</td> <td>The Defendant's previous convictions， clearly showing a failure to respond to previous</td> </tr> <tr> <td>21</td> <td>sentences.</td> </tr> <tr> <td>22</td> <td>b.</td> <td>This offence was committed whilst the Defendant was on conditional release/license from</td> </tr> <tr> <td>23</td> <td>prison for his last conviction for a similar offence in 2018.</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> <td>48.</td> <td>There are no mitigating features in relation to this offence.</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> <td>49.</td> <td>Adopting a starting point of 3 years custody and taking into account the aggravating factors</td> </tr> <tr> <td>28</td> <td>outlined， the appropriate sentence on count 4 is 5 years custody.</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> <td>Tota</td> <td>lity</td> <td>50.</td> <td>considered the</td> <td>totality</td> <td>ar</td> <td>propriateenc</td> <td>I have cc principle of</td> <td>rive at an ov</td> <td>e.</td> </tr> <tr> <td>31</td> <td>32</td> <td>50 considered the</td> <td>of totality lar</td> <td>general sent</td> </tr> <tr> <td>33</td> </tr> </table> <sup>8</sup> Criminal Appeals 003 of 2021 and 004 of 2021， 220608 R v Barnes (Dencle Vic) - IND 17 of 2021 - Sentence Judgment Page 14 of 16 ```
```html <table> <tr> <td>1</td> <td>“The Court, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and at the same time, is a sentence which is just and proportionate. This is so whether the sentences are concurrent or consecutive (see 6 below).</td> </tr> <tr> <td>2</td> <td>Thus, concurrent sentences will ordinarily be longer than a single sentence for a single offence.”</td> </tr> <tr> <td>Paragraph 6</td> </tr> <tr> <td>3. “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.</td> </tr> <tr> <td>51.</td> <td>I do not find that consecutive sentences are appropriate in this case.</td> </tr> <tr> <td>52.</td> <td>Concurrent sentences will ordinarily be appropriate where:</td> </tr> <tr> <td>(a)</td> <td>Offences arise out of a related incident or facts</td> </tr> <tr> <td>(b)</td> <td>There is a series of offences of the same or similar kind especially when committed against the same victim</td> </tr> <tr> <td>53.</td> <td>“Where concurrent sentences are passed, the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences and thus the court may increase sentence for the principal offence to reflect the gravity of conduct.”</td> </tr> <tr> <td>54.</td> <td>The application of the totality principle justifies the imposition of an overall sentence, which is greater than the sentence that would have been passed if this Defendant had only committed one offence of possession of one unlicensed firearm in the specific aggravating circumstances present in this case. It is with this in mind as well as the observations at paragraph 41 above that this court has impc of 14 year in respect of each of cou</td> </tr> <tr> <td>31</td> <td>55. e Defendant record, trav</td> </tr> <tr> <td>29</td> <td>osed a sentens imprisonmunts 2 and 3.</td> </tr> <tr> <td>30</td> <td>Given th's conviction for a aggravating factorin</td> </tr> <tr> <td>32</td> <td>above from the CI sentencing guidelines the sentence of this court is as follows: on Count 1 for</td> </tr> <tr> <td>33</td> <td>Illicit Trafficking 5 years imprisonment. On count 2 for possession of an unlicenced firearm 14</td> </tr> <tr> <td>34</td> <td>years imprisonment concurrent to count 1. On count 3 for possession of an unlicenced firearm 14</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>years imprisonment concurrent to Count 2. On Count 4 the sentence is 5 years imprisonment concurrent to count 2. For the avoidance of doubt the length of the sentence to be served by the defendant, the concurrent sentence having been applied is 14 years imprisonment. Any time that the Defendant has spent in custody for this offence is to be deducted from this sentence.</td> </tr> <tr> <td>56.</td> <td>Pursuant to Section 25 of Misuse of Drugs Act, the vessel, the Jamaican canoe, is forfeited to the Crown and the ganja is ordered destroyed.</td> </tr> <tr> <td>Justice Marlene I. Carter</td> <td>Judge of the Grand Court (Actg.)</td> </tr> </table> ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline 1 & years imprisonment concurrent to Count 2. On Count 4 the sentence is 5 years imprisonment concurrent to count 2. For the avoidance of doubt the length of the sentence to be served by the defendant, the concurrent sentence having been applied is 14 years imprisonment. Any time that the Defendant has spent in custody for this offence is to be deducted from this sentence. \\ \hline

¶ [56] & Pursuant to Section 25 of Misuse of Drugs Act, the vessel, the Jamaican canoe, is forfeited to the Crown and the ganja is ordered destroyed. \\ \hline Justice Marlene I. Carter & Judge of the Grand Court (Actg.) \\ \hline \end{tabular} \end{table}