Sir Declan morgan:
On 10 April 2013 the appellant pleaded guilty in the High Court Division of the Gun Court in Kingston, Jamaica to three counts; (1) illegal possession of a firearm contrary to section 20(1)(b) of the Firearms Act, (2) robbery with aggravation contrary to section 37(1)(a) of the Larceny Act and (3) wounding with intent to cause grievous bodily harm contrary to section 20(1) of the Offences Against the Person Act 1864 (“OAPA”). He was 16 years old at the time of the offences and 17 at the time of sentence.
On 22 July 2010 section 20(2)(b) of the OAPA had been amended to provide for a minimum sentence of 15 years imprisonment where the offence of wounding with intent was committed with the use of a firearm. The appellant appeals the dismissal of his appeal by the Court of Appeal of Jamaica against the imposition of the minimum sentence of 15 years imprisonment on the wounding with a firearm count on the basis that the sentence was prohibited by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 and therefore unlawful.
The circumstances of the offences
The victim gave evidence on the first morning of the trial, the appellant having initially pleaded not guilty. At about 10 pm on 28 August 2012 he was walking along a sidewalk talking on his Blackberry Bold cell phone. He noticed a young male in a white t-shirt standing at the side of a car parked a short distance ahead of him. As he approached the car the appellant alighted from the rear door of the car carrying a short gun about 6 inches in length which he pointed directly at the victim.
The appellant walked towards the victim, holding the gun with both hands, until he was directly in front of him. The appellant gesticulated with the gun and told the victim to throw the mobile phone to him, which he did. The appellant caught the phone and put it in his pocket. The appellant then pointed the gun at the victim’s face at which point the victim attempted to run away.
Several shots were fired at the victim as he ran causing a gunshot wound that bled to the right side of his back and a graze to his upper lip. The victim collapsed twice while running and on the second occasion he noted the appellant and the other male picking up spent shells. The appellant and the other male fired two further shots at the victim. The two gunmen then made their escape in the car.
The victim was able to make his way to the security post of an apartment block after which he was taken to the local hospital. He was then transferred to the University of West Indies Hospital where he was detained for a week while the gunshot wound to the back was treated. He subsequently received counselling and feared a reprisal as a result of his participation as a witness in the case. He was a student and the incident adversely affected his academic performance.
The appellant applied to be rearraigned and pleaded guilty to all counts after the lunch adjournment on the first day of the trial. The sentencing hearing was postponed for a month to enable the court to obtain a social enquiry report on the appellant. Counsel for the appellant introduced his plea with the following remarks about the offences:
“…the crime of Illegal Possession of Firearm and Ammunition and Wounding with Intent are serious charges, and they are in fact, they go beyond being serious, they are heinous charges, ones which claimed the society of Jamaica and, they have had a ruinous and damaging effect on this country.”
Having recognised the gravity of the offending and the endemic nature of such crimes in Jamaica counsel submitted that the appellant’s plea of guilty, his age and the influence of an older family member grooming him into a life of crime were all mitigating factors. Marsh J indicated that this was a set of very serious offences involving harm by means of a firearm. Ordinarily the court would have taken into account the tender years of the appellant and the plea of guilty, but the statute tied the court’s hands. On each count on the indictment the judge imposed concurrent sentences of 15 years imprisonment.
An application to appeal to the Court of Appeal was lodged on the basis that the sentences of 15 years imprisonment on the counts relating to possession of a firearm and aggravated robbery were manifestly excessive, there being no minimum sentence imposed by statute in respect of those lesser charges, and that the minimum sentence on the wounding with intent count was unconstitutional. Leave was given to argue all points.