Supreme Court
Inferior Court Appeal No. 9 of 1985
17th January, 1986
BROWN, Acting CJ

Mr. T.J. Gonzalez, Crown Counsel, for the Appellant
Mr. B.Q.A. Pitts, for the Respondent

Inferior Court Appeal - Prosecutions appealing against sentences imposed by Magistrate following a conviction of Respondent on charges of keeping unlicensed ammunition, unlicensed firearms and an unlicensed shotgun - Magistrate explaining in his Reasons for Sentences that the treated the offences compositely even though separate charges were preferred against the Respondent, and that he took into account in mitigation the fact that Respondent cooperated with the police and the fact that there were no aggravating circumstances - Firearms (Amendment) Ordinance (No. 14 of 1983) ("Amendment Ordinance") - Amendment Ordinance increasing penalties for keeping unlicensed firearms and ammunition - Whether court should give effect to the intention of the Legislature by imposing severe penalties - Appellate court quashing the sentences of Magistrate and imposing severer penalties.

J UD G M EN T

On the 6th day of May, 1985 the Respondent was convicted on four charges that he kept ammunition for which a license had not been granted; three charges that he kept 3 firearms for which a gun license had not been granted and one charge that he kept a shot gun which had not been registered. Violations of section 3(1) of Chapter 116 were established in relation to the keeping of 419 rounds of 9 mm ammunition, 46 rounds of .22 ammunition and 481 rounds of M-16 ammunition. He pleaded guilty to the charge of keeping one .32 Revolver, one .22 Winchester Rifle, an unregistered shotgun and 4 rounds of .32 ammunition. He was acquitted on the charge of keeping one .30 M1 semi automatic rifle.

The Magistrate imposed fines of $75.00 in default 3 weeks imprisonment in respect of each charge. The firearms and ammunition were all confiscated. Against these sentences the Prosecution appealed on the ground that the sentences were unduly lenient.

In his Reasons for the Sentences the Magistrate stated that the factors he took into consideration were:

1. "All the offences are of the same kind, keeping guns or ammunition;

2. All the guns and ammunition except 16 rounds of 9 mm ammunition were found at one farm at Mile 14 on the Northern Highway. There was no gun found along with the 16 rounds of 9 mm ammunitions found at the Respondent's house at mile 2 on the Western Highway. Though all guns and ammunitions except 16 rounds of 9 mm ammunition were found at one farm, each taking has been put down as a separate offence in the Information. This is done in practice to keep the evidence separate to facilitate easy leading of evidence in Court. In effect, they constitute one offence since they were found in the same farm, although at different places.

They were picked up by the Police the same day, in seriatim in the same farm.

3. The Respondent co-operated with the Police; and according to the Prosecutor's evidence "the Respondent advised me that he had a .32 revolver in the vehicle. (He) led me to House No. 4 and led me straight into the master bedroom of his house and handed me a paper bag containing 16 rounds of 9 mm ammunition."

4. The Respondent said that the 16 rounds of 9 mm ammunition found at his home, he had taken to show his wife.

5. The Respondent got the farm at Mile 14 as a gift from his mother, whose husband, a gun dealer, died in 1970. The Respondent said that he opened the warehouse only a week before the police came and he was intending to collect all the firearms and ammunition and give it to the police. The effect of his testimony is that he inherited these guns and ammunitions as being within the farm that was gifted to him by his mother.

6. There was no evidence that he bought any of the firearms or ammunition.

7. The offences are of the same genre, the several pickings were all treated as meriting the award to of a composite punishment of fine, though split up because the Information contained a count for each picking.

8. The mitigating factors were many. There was no aggravating circumstance in the conduct of the offender or in the commission of the offences. He also pleaded guilty to 4 of the offences."

The learned Crown Counsel's submission is to the effect that even if the learned Magistrate had treated all the charges as one charge yet there were 3 firearms and 951 rounds of ammunition and a mere $525 fine in default of which 3 weeks imprisonment. Even then the sentence is unduly lenient for offences of this gravity. He referred to Act No. 15 of 1983 which amended the Firearms Ordinance, Chapter 116, increasing the penalty for these offences from a maximum fine of $250.00 to $5,000.00 and from 6 months maximum imprisonment to 2 years imprisonment upon summary conviction. On indictment the maximum penalties are $50,000 or up to 5 years imprisonment. That due regard was not given to the intention of the Legislature to treat the type of offence seriously. Furthermore, the charges were for keeping firearms and ammunition and that it mattered not whether they were bought or otherwise acquired; therefore the learned Magistrate erred in taking this into consideration when imposing sentence. That the Respondent co-operated is not a reasonable finding on the evidence but in fact, viewed reasonably, the Respondent acted as he did only when cornered - when it was obvious the guns and ammunition would be found upon a thorough search. That there were no aggravating circumstances is therefore a wrong finding which was applied to the sentencing. That the learned Magistrate gave a uniform sentence is an indication that he did not address his mind to the guilty pleas he later adverted to in his Reasons for Sentencing.

Respondent's counsel submitted that there is nothing to show that the learned Magistrate did not apply the principles involved in punishing offenders. That from the circumstances of the case the Magistrate imposed appropriate sentences having regard to the principles and the particular facts of the case. That he took reasonable judicial notice of the fact that the Respondent has kept the arms and ammunition where he had found them and as a result approached the offences and punishment from a composite point of view that there is no previous record against the Respondent was important and the special circumstances of the case resulted in a reasonable punishment there being no minimum punishment for this type of offence - it's a judicial discretion for the magistrate.

This Court observes the principle that an appellate Court will not lightly interfere with findings of fact in a court below. Howeve, this is an appeal on sentence alone and this Court must be satisfied not only that the well settled principles on sentencing and punishment are judicially applied but also when aggravating and mitigating circumstances are relied upon that they appear on the record or are adverted to by the Magistrate from the benefit of his seeing and hearing the witnesses. That the Respondent was acquitted of the charge of keeping the .30 M1 rifle contradicts his reasons for treating or viewing all the offences in a composite manner and imposing sentences in the way in which he did. The charge of keeping the .30 M1 was dismissed on the basis of the defence of blemished inheritance. To treat the keeping of 481 rounds of M-16 ammunition, the 419 rounds of 9 mm ammunition, 46 rounds of .22 ammunition and 4 rounds of .32 ammunition in a composite manner could not on the record be treated in a composite manner. At best, the learned Magistrate could treat as composite the keeping of the 481 M-16 ammunition and the 419 9 mm ammunition; the 46 rounds .22 ammunition with the .22 Winchester rifle in such a manner and lastly the .32 revolver and 4 rounds of .32 ammunition in like manner. The shotgun charge is distinct and should have been so viewed. From the records only the 481 M-16 and the 419 9 mm together with the .30 M1 Rifle could have had any connection with the Respondent's father's gun dealer business. The Respondent's evidence that -

"I took the revolver to sell to recover the money they owed me … My father had a gun dealer license - people bring licences and my father would sell … I have not seen (the .30 M1 automatic rifle) for about 3 years."

is significant. He knew something about gun dealership. In evidence he said he had been gathering the arms and ammunition over the last week but later indicated he had seen the .30 M1 rifle about 3 years before. Nowhere in the Reasons for Sentence does the learned Magistrate advert to the prevalence of offences against the Firearms Ordinance. The sentences lead me to the conclusion that the learned Magistrate did not so advert his mind to that fact nor to the, then, recent heavy increases in the penalties for breaches of the provisions of the Firearms Ordinance reflecting the severity with which the Legislature viewed such breaches as evidenced by Ordinance No. 14 of 1983.

Having regard to all the circumstances and those mitigating factors as the learned Magistrate had found, I find good grounds for disturbing the sentences and I set them aside.

Having regard to the prevalence of this type of offences, society must be protected by reflecting the intention of the Legislature by the imposition of deterrent sentences. Of course the mitigating factors are also borne in mind. Having quashed the sentences I substitute therefore the following sentences:

1. Informations 1007/85 and 1459/85 fines of $500 and $250 respectively; in default 6 months and 3 months imprisonment respectively.

2. Information 1008/85 a fine of $200; in default 2 months imprisonment.

3. Information 1009/85 and 1457/85 fines of $500 and $250 respectively; in default 6 months and 3 months imprisonment respectively; and

4. Information 1456 and 1459/85 fines of $500 each in default 6 months imprisonment.

Sentences to run concurrently. All exhibits forfeited to the Crown.

-----------OO------------