Christopher Ebanks v R

¶ CAYMAN ISLANDS CRIMINAL FORM 18 RULE 50(1) & 51(1) IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 32 of 2008 (Indictment No. 86/07) C#9677/2007 Between: HER MAJESTY THE QUEEN Respondent and CHRISTOPHER KELVIN EBANKS Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that CHRISTOPHER KELVIN EBANKS having sought leave to appeal against SENTENCE passed upon him by the Grand Court on the 14th day of November, 2008 as set out below: Indictment # 86/07 Possession of a Firearm with Intent to Commit an Offence – Count 1 Robbery – Counts 2-4 Found Not Guilty on 14th November 2008 Defendant acquitted and Discharged Possession of an Unlicensed Firearm – Count 5 10 years imprisonment. Time served to be taken into account. Gun forfeited and ordered destroyed. Jewellery to be returned to complainants. The Court of Appeal has finally determined the said appeals, and has this 25th day of November, 2009 given judgment therein to the effect following:

¶ [1] Application for leave to appeal refused.

¶ [2] Appeal against sentence (Ct 5) dismissed. Sentence affirmed.

¶ [3] Transcript of oral judgment to be released. Dated this 9th day of February, 2010 Registrar IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 32 OF 2008 IND. NO. 86 OF 2007 SCA C#9677/2007 BETWEEN: CHRISTOPHER KELVIN EBANKS Appellant and HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK P. THE HON. MR. JUSTICE FORTE J.A. THE HON. MR. JUSTICE MOTTLEY J.A. Reasons for Judgment delivered orally on 25 November 2009 JUDGMENT RELEASED JANUARY 2010 Reasons for Judgment (Chadwick P.) JUDGMENT CHADWICK P. (Orally): In November 2008 the appellant, Christopher Kelvin Ebanks, was tried before Mr. Justice Campbell, sitting as a judge alone in the Grand Court, on an indictment which contained five counts. Those counts related to a robbery which had taken place on 6th October 2007. The judge, for the reasons which he gave in a careful judgment, found the appellant not guilty in respect of the first four of those counts. The fifth count was a charge of possession of an unlicensed firearm contrary to s.15(1) of the Firearms Law (2006 Revision). That count related to an incident a few days after the 6th October 2007, when an air gun was found in the appellant's possession. There was some debate at the trial as to whether the weapon found was in fact a firearm falling within the definition in s.2(1) of the Firearms Law (2006 Revision). For that purpose, a "firearm" means "artillery, machine Reasons for Judgment (Chadwick P.) gun, sub-machine gun, rifle, shot gun, pistol, air gun, air pistol or any lethal barrelled weapon from which any shot, bullet or other missile can be discharged, except an air rifle, air gun or air pistol of a type prescribed by the Governor and of a calibre so prescribed." For the purposes of the definition, a firearm will not include an imitation firearm because an imitation firearm will not be a weapon from which any shot, bullet or other missile can be discharged. The judge was satisfied that the weapon in this case was a lethal barrelled air gun which fell within the definition of "firearm"; and, importantly, within the provisions of s.39(1)(c) of the Firearms Law (2008 Revision). Accordingly, the judge found the accused guilty as charged under count 5: that is, guilty of possession of an unlicensed firearm contrary to s.15(1) of the Firearms Law (2006 Revision). Given that finding of guilt, the judge had no alternative but to impose a sentence of imprisonment for a term of at least ten years -- this being a case in which the appellant had not pleaded guilty to the offence charged -- Reasons for Judgment (Chadwick P.) unless he were of opinion that there were exceptional circumstances relating to the offence or to the offender which justified him not doing so. Had he found the existence of exceptional circumstances, he would have been required to state what those exceptional circumstances were (see s.39(2) of the Firearms Law). The section applies where an individual is convicted by a court of summary jurisdiction or the Grand Court of an offence under, inter alia, s.15(5). Section 15(5) is a section which imposes an offence for contravention of, inter alia, section 15(1). The judge therefore addressed, correctly, the question whether or not there were exceptional circumstances in this case. He said this: "I have listened to your counsel in respect of his plea in mitigation. Having heard what he said and listened to Crown counsel, I am not satisfied that there is any area for the exercise of the Court's Reasons for Judgment (Chadwick P.) discretion here, any exceptional circumstances arising. Having said that, the sentence of the Court is that you serve a period of ten years' imprisonment." It is from that sentence passed on the 14th November 2008 that the appellant seeks to appeal to this Court. In his grounds of appeal, filed on the 19th November 2008, he said this: "I am applying to the Court of Appeal on the grounds that I was given ten years for an imitation firearm. It was not proven that I used this to commit an offense. I firmly believe that this sentence is extremely harsh and excessive. I willingly turned over the said firearm to the police as a sign of my willingness to co-operate with the police." It is necessary to emphasise that those grounds proceed on a misunderstanding of the offence in relation to which the appellant was Reasons for Judgment (Chadwick P.) convicted. He was not convicted for possession of an imitation firearm: he was convicted for possession of a firearm within the definition in s.2(1) of the Firearms Law. He was not convicted of possession with intent to commit an offence: indeed he was acquitted of that. He was convicted simply of being in possession of an unlicensed firearm. In those circumstances, s.39(2) required the judge to impose a sentence of ten years following a not guilty plea after a trial, unless the judge was satisfied that there were exceptional circumstances. The only suggestion in the grounds of appeal as to exceptional circumstances was that, as the appellant says, he turned over the firearm to the police as a sign of his willingness to cooperate. The judge was plainly entitled to take the view, and indeed correctly took the view, that that did not amount to an exceptional circumstance in this case. For those reasons, this appeal is bound to fail and it is dismissed. Mr. Ebanks, you should stand up. For the reasons that I have given, the appeal is without prospect of success and it must be Reasons for Judgment (Chadwick P.) dismissed, so the appeal is dismissed. COURT REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability, dated the 8th day of December 2009. Kerri Francelia