Jason Adam Decouto v The Queen
| Jurisdiction | Bermuda |
| Judgment Date | 04 May 2016 |
| Neutral Citation | [2016] SC App (Bda) 49 |
| Date | 04 May 2016 |
| Docket Number | APPELLATE JURISDICTION 2015: No 39 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
APPELLATE JURISDICTION 2015: No 39
Mr C. Craig S. Attridge, Barrister & Attorney, for the Appellant
Ms Cindy E. Clarke, Deputy Director of Public Prosecutions, for the Respondent
Appeal against sentence — possession of firearm — whether before passing sentence Magistrate should have informed the defence that he did not accept the facts put forward in mitigation — whether exceptional circumstances — whether sentence should have been suspended
(In Court)
On 20 th November 2015 the Appellant pleaded guilty in the Magistrates' Court to one count of possession of a firearm contrary to section 3(1)(a) of the Firearms Act 1973 (‘the 1973 Act’) before the Worshipful Archibald Warner and was sentenced to 30 days' imprisonment. He appeals against sentence, which he has already served, on the grounds that it was wrong in principle and/or manifestly harsh and excessive. The appeal is unopposed, although the parties differ as to what the correct sentence should be.
I gave a short ex tempore judgment at the close of the hearing. At the request of the parties I have reduced it to writing. In so doing I have expanded upon it to address some of the points which were covered during counsels' oral submissions, including some legal research arising from them, and to make it more readily intelligible to the general reader who has no prior knowledge of the case.
The facts were not disputed, either before the learned Magistrate or before me. The Appellant served part time as a sergeant in the Royal Bermuda Regiment (‘the Regiment’) from May 2003 until 24 th February 2004 when, upon completion of his term of service, he was honourably discharged. His duties included distributing magazines and ammunition. While in active service, a member of the Regiment may lawfully carry firearms and ammunition. On one occasion the Appellant took two empty magazines home with him from a .223 calibre Ruger Mini 14 Rifle, then put them in a container and forgot about them.
On 6 th April 2015, more than 11 years later, police officers searched the Appellant's house in relation to another matter and found the magazines in a closet. He was arrested and charged with possession of a firearm. Under section 1(1) of the 1973 Act, a ‘ firearm’ means a lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged, and includes any component of such a lethal or prohibited weapon, such as a magazine. When interviewed under caution the Appellant acknowledged possession of the magazines and stated ‘ that is from my Regiment days’. He pleaded guilty to the charge at the earliest opportunity.
In his sentencing remarks, the learned Magistrate rejected the Appellant's explanation, stating:
‘ I find it inconceivable that a responsible sergeant of the Bermuda Regiment realizing that he had erred in taking the magazines home would treat them in the way the defendant said he treated the magazines, putting them in a container and eventually forgetting about them.
Moreover, since 2004 to present we have been – not to pun – under the gun with firearm offences. This environment should have triggered the defendant's memory of his possession of magazines. The magazines were never turned in. I do not accept the defendant's story that he simply forgot. This [defendant] had to know and could not have forgotten that he had the magazine[s].’
The learned Magistrate was entitled to reject the Appellant's explanation without hearing evidence. The applicable principles are stated in Archbold 2016 at para 101.
‘ The cases (including, in a recent restatement in R. v. Cairns [2013] 2 Cr.App.R.(S.) 73, CA) establish three situations where although there is a dispute as to the facts of the case, the court is not obliged to hear evidence under the principles laid down in Newton.
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The third exception is the case where the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence. These matters are likely to be outside the knowledge of the prosecution: see R. v. Broderick, ante. Where the facts put forward by the defence do not contradict the prosecution evidence, the cases justify the following propositions.
(a) The defendant may seek to establish his mitigation through counsel or by calling evidence. The decision whether to call evidence is his responsibility, and there is no entitlement to an indication from the court that the mitigation is not accepted ( Gross v. O'Toole, 4 Cr.App.R.(S.) 283, DC); but such an indication is desirable ( R. v. Tolera [1999] 1 Cr.App.R. 29, CA).
(b) The prosecution are not bound to challenge the matter put forward by the defendant, by cross-examination or otherwise ( R. v. Kerr, 2 Cr.App.R.(S.) 54, CA), but may do so ( R. v. Ghandi, 8 Cr.App.R.(S.) 391, CA; R. v. Tolera, ante).
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(d) The court is not bound to accept the truth of the matters put forward by the defendant, whether or not they are challenged by the prosecution (Kerr, ante): see R. v. Broderick, ante.
(e) In relation to extraneous matters of mitigation raised by the defendant, a civil burden of proof rests on the defendant, although in the general run of cases the court would accept the accuracy of counsel's statement: R. v. Guppy, 16 Cr.App.R.(S.) 25, CA.’
The judgment of the Court of Appeal of England and Wales in Tolera was given by Lord Bingham CJ. The passage to which Archbold refers occurs...
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