The appeal presented by Philip Rule KC (No5 Barristers’ Chambers) and his instructing attorney James Stenning (Stenning’s Chambers) to the Cayman Islands Court of Appeal was allowed on the day of the hearing, and the Court’s written judgment has now been handed-down to explain its reasoning (CICA Crim Appeal No. 11 of 2023; 11th October 2024).
The focus of the appeal was upon a challenge to the decision of the first-instance Judge that there were not exceptional circumstances to disapply the mandatory minimum sentence of 7 years for the offence, on a guilty plea. The Caymanian legislation notably contains a mandatory minimum twice that applied in England & Wales.
In addition to that question the appellant raised some points of principle. The key questions before the Court included:
- Should the judge take the mandatory minimum as a starting-point to sentencing, or is that (as in England) properly used as a cross-check for the level of sentence independently arrived at by considering the seriousness of the offence in the usual way?
- Was the Judge right to treat the conditional intention of the appellant to use the firearm for his own protection should he need to do so under threat of his life as a significant aggravating feature of his possession of the firearm?
- Did the Judge apply an insufficient level of discount to the sentence on account of the guilty plea?
- Did the Judge apply an insufficient level of discount to the sentence on account of assistance to the prosecution by the appellant in an earlier murder trial in 2010?
On the first issue, the Court said “We are not entirely sure that this approach is readily transferable to a jurisdiction such as this where there are not such detailed sentence and guidelines in many cases. But, even if it is, we do not think that the judges decision to take 10 years as a starting point can be criticised…” [33]. The Court of Appeal warns that it regards the correct sentencing level “given the increasing use of firearms in this jurisdiction” to mean that a 10-year starting point can be taken before any aggravating factors are considered [34]. This approach appears to equate the “tariff” in the Chief Justice’s 2002 guidelines as if it is a “starting-point”.
On the second issue, the Court of Appeal agreed that the learned Judge was wrong to aggravate the term on account of the fact that the appellant was carrying the firearm for self defence and was prepared to use it if attacked, which failed to make allowances for the circumstances in which this occurred – having been a witness at a murder trial doing his public duty and with reasonable fears of reprisal [36] – the intention being a matter the Judge “placed considerable weight on”. In addition, the offences that were committed at the same time as possessing the firearm were not a significant aggravating factor given that they were motoring matters and possession of ganja [36]. However despite these errors the Court took the view it was still justifiable to reach a sentence of 15 years as the term prior to any discount.
On the third question, the Court held the sequential approach in this jurisdiction should be to first assess the discount for assistance to the authorities, and then secondly to discount further for the plea [26]. Whilst the approach of the Judge (who did not find exceptional circumstances) was that a one-third reduction for plea was earned [22]; but due to the minimum only a very small proportion of that would actually be calculated in the sentence, the Court does not appear to have found it necessary to consider whether that strictly sequential approach can work unfairness in the case of an offence for which a mandatory minimum may apply (because it did find exceptional circumstances to go below the minimum it does not in this case prejudice the individual, because in effect both credits will be given and are given to this appellant). More generally, the Court recognised the legislation imposed a minimum of 7 years on a plea (10 years following a contested conviction) so the absence of full credit could be “inherent” in the statutory provision [39]-[40].
The fourth issue was resolved in favour of the appellant: at [38] the Court found force in the submission that a roughly two-thirds rather than one-half reduction was due for the assistance to the prosecution, applying the guidance in R. v. P. and Blackburn [2008] 2 Cr. App. R. (S.) 5. The Court applied a reduction of nine years for the assistance and a further one-third for the guilty plea, from a starting point of 15 years, to arrive at a sentence of four years [46]. It also said select leaving aside a mathematical approach considering “the matter in the round” a sentence of four years was appropriate.
The Court then considered the central complaint that the Judge had imposed the mandatory minimum term of 7 years and not found there to be exceptional circumstances not to do so. The Court accepted the submissions made and had no hesitation in concluding that the judge was plainly wrong not to have found that exceptional circumstances existed, and that a seven-year sentence would be disproportionate [45]. It considered the “very powerful mitigating features that amounted to exceptional circumstances” [48].
The appeal was allowed, and a sentence of 4 years substituted
View the full judgment here.