Chadwick P, Forte JA, Mottley JA
CAYMAN ISLANDS CRIMINAL FORM 18 RULE 50(1) & 51(1) IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 13 of 2009 (Indictment No. 81/08) C#08082/2008 Between: HER MAJESTY THE QUEEN - and - ANDREW ANTHONY BAPTIST Respondent Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that ANDREW ANTHONY BAPTIST having sought leave to appeal against his SENTENCE passed upon him by the Grand Court on the 21st day of May, 2009 as set out below: Ind. 13/09 RAPE FIREARM 2 years and six months imprisonment 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:
Legal aid granted to John Furniss.
Leave to appeal sentence granted.
Appeal allowed.
Sentence quashed and sentence substituted of 2 years six months imprisonment with time in custody to be taken into account.
Transcript of oral judgment to be released. Dated this 3rd day of December, 2009. Registrar IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 13 OF 2009 IND. NO. 81 OF 2008 C# 08082/2008 BETWEEN: ANDREW ANTHONY BAPTIST 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): On the 21st May 2009, the appellant, Andrew Anthony Baptist, pleaded guilty to a charge of possession of an unlicensed firearm contrary to s. 15(1) and 15(5) of the Firearms Law (2008 Revision). The particulars of the offence were that on the 29th September 2008, at Kings Road, West Bay, the accused had in his possession a firearm, a BB gun, Model SW40F, without having a current firearm's licence. The evidence of the firearms expert, which was admitted without challenge and without the need to call the expert, was that the weapon did not possess a lethally rifled barrel. That was a crucial piece of evidence because it had the effect that this offence did not fall within s.39(1)(c) of the Firearms Law 2008; and so did not attract the statutory minimum sentence which, upon a plea of guilty, would have been seven years. So the appropriate sentence was a matter for the judge, without any minimum imposed by s.39 of the Firearms Law. The judge, Mr. Reasons for Judgment (Chadwick P.) Justice Pusey, appreciated that. He understood that the minimum statutory sentence would not apply. He reminded himself of the decision of this Court in Atily. He looked at all the circumstances. He took account of the fact that the offender was a young man; but a young man with a serious record. He thought that the appropriate sentence would have been three years. In reaching that conclusion, he did not give any discount for the guilty plea. He did not decide that the plea should attract no discount because of the late stage at which it had come in. Had he addressed his mind to that question, he would have been right to take the view that a discount was warranted, notwithstanding the late stage at which the plea came in. The reason for that was that it was not until a late stage that the expert's report had become available; and so, not until a late stage that the defendant could know whether he was facing, potentially, a statutory minimum of seven to ten years, or a sentence in the discretion of the Court, which might be considerably less than that. Reasons for Judgment (Chadwick P.) In those circumstances, it is, I think, accepted by the Crown that some discount for the guilty plea should have been allowed. In our view, an appropriate discount from a sentence of three years, in this case, would have been six months. I say that because this was a case in which the evidence was strong: the offender was found in the process of seeking to dispose of the weapon by throwing it under a car. A guilty verdict was very likely, and a guilty plea recognised that prospect. Still, some discount was appropriate, and a discount of six months off three years, in the circumstances, would have been about right. The judge, having decided that a sentence of three years was appropriate, passed a sentence of two years and six months. In reaching that sentence he deducted six months from three years to recognise the fact that the appellant had been in custody for some four months. He took the view that some four months in custody was equivalent, approximately, to six months off a sentence. So, the judge sentenced this offender to two years and six months, but without further credit for time Reasons for Judgment (Chadwick P.) spent in custody since his arrest. In our view, it is more sensible in this jurisdiction to observe the convention that an offender will normally get credit for time spent in custody. If that convention or practice is readily observed, then sentences are generally capable of being compared like with like, without the need on each occasion to ask whether the sentence started at the date it was pronounced or whether the sentence gave credit for time spent in custody. So it seems to us the appropriate sentence in this case would have been two years, six months, with credit given for time spent in custody. We propose to quash the sentence and substitute a sentence of two years and six months, with credit for time spent in custody. MR. FURNISS: Obliged, My Lord. CHADWICK P.: The effect of giving credit for the time spent in custody is to recognise that there should have been some discount for the guilty plea. MR. FURNISS: Thank you, sir. COURT REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability, dated the 8th day of December 2009. Kerri Francelia