Push against 15-year prison term - Lawyers challenge mandatory sentence for gun charge

Published: Sunday | December 15, 2013 Comments 0

Barbara Gayle, Justice Coordinator

Defence lawyers are anxiously awaiting a ruling from the Court of Appeal on the controversial mandatory minimum prison sentence of 15 years for offences committed with the use of a firearm.

A constitutional challenge was made to the 2010 amendments to the Firearms Act and the Offences Against the Person Act when licensed firearm holder 48-year-old businessman and racehorse trainer Leroy Fearon appealed against his conviction and sentence of 15 years.

Fearon was freed of the charges of shooting with intent and illegal possession of firearm last month.

The Appeal Court has promised to put its reasons in writing but in doing so it will have to rule on the constitutional issues raised on appeal.

Mandatory minimum sentence

Attorney-at-law Ravil Golding who represented Fearon on appeal filed a constitutional motion that the mandatory minimum sentence as amended "infringes the principle of separation of powers between the judiciary and the legislature, and is therefore unconstitutional and should be struck down".

Some members of the legal profession have since 2010 been calling for the amendments to be repealed because sentencing should be at a judge's discretion.

But Golding is not the only lawyer who is challenging the amendments on appeal.

Last week, attorney-at-law Alando Terrelonge - who is representing a man who was also sentenced to 15 years for a gun offence - filed an appeal challenging the amendments on the grounds that they are unconstitutional.

"Mandatory minimum sentences are repugnant to the Constitution as all accused persons have the basic human right to be treated in a manner that is humane, fair, non-discriminatory and in keeping with the fundamental right and freedom enshrined in Chapter 3 of the Constitution," said Terrelonge.

"To deny an accused an opportunity to persuade the court that 15 years would be disproportionate to the particular circumstances of his case is a denial to his basic human right and is unconstitutional," added Terrelonge.

Fearon, who is from Cave Hill Estates in St Catherine, was convicted in October 2012 of gun offences resulting from a road-rage incident.

He was sentenced to three years on the count of illegal possession of firearm and 15 years on the charge of shooting with intent. With the sentences sent to run concurrently he was facing 15 years in prison.

In passing sentence, the judge had commented that in the circumstances he did not want to give the businessman the 15-year prison term, but he had no choice because of the mandatory minimum prison sentence.

Attorney-at-law C.J. Mitchell who represented Fearon at his trial had raised concern about the mandatory minimum sentence.

Evidence was given in the Gun Court that in May 2011 Fearon fired shots from his licensed firearm at a security guard whose motor vehicle had collided with his motor car at the intersection of Half-Way Tree and Oxford roads.

On appeal Fearon's legal team filed several grounds contending that the judge erred in law in finding that the evidence substantiated shooting with intent.

The legal team led by Golding argued that in evidence-in-chief and under cross-examination the complainant said Fearon pointed the gun at the car, as opposed to pointing the gun directly at him.

Golding submitted that after the complainant's motor vehicle collided with Fearon's motor car, the complainant sped off and Fearon caught up with him on Half-Way Tree Road.

Shot at tyre

Fearon used his car to block the complainant's car but the complaint drove off. It was then Fearon pulled his licensed firearm and fired one shot at the tyre of the speeding car.

Fearon drove to the Half-Way Tree Police Station and while he was there, the police turned up with the complainant whose motor vehicle had collided with another motor car on Grove Road.

Golding argued that the judge erred in law in finding that the evidence substantiated shooting with intent.

The attorney argued that the judge's failure to demonstrate his basis for accepting the complainant as a witness of truth demonstrated a failure to address his mind to the creditworthiness of the complainant, which constituted a non-direction, resulting in a misdirection.

The constitutional issue was raised in the appeal as Golding argued that the mandatory minimum sentence imposed by the amendment to the Offences Against the Person Act was subject to the proportionality requirement of Section 13 of the Charter of Rights which replaced Section 17 of the Constitution.

Golding asked the court to declare the amendment to the Offences Against the Person Act to be of no force or effect for all purposes, and in breach of Section 2 of the Constitution which states that "if any law is inconsistent with the constitution, this constitution shall prevail and the other law shall, to the the extent of the inconsistency, be void".

Golding is asking the court to rule that the amendments are unconstitutional as they fetter the exercise of the court's discretion to sentence.

He has called on the court to declare that Parliament, in enacting penal provisions, cannot impose penalties which are in contravention of the Constitution.

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