BUNGLED!

Director of Public Prosecutions (DPP) Paula Llewellyn has admitted that the St Catherine man handed a four-year sentence for illegal possession of firearm and ammunition last Friday was indicted under the wrong section of the Firearms Prohibition Act passed in November.

The error resulted in 28-year-old Dennis Mundell being given a discretionary sentence that drew the ire of hundreds of social-media users and triggered strong criticism of the judiciary.

Mundell’s sentence of four years and six months each for unauthorised possession of firearm and unauthorised possession of ammunition was also inconsistent with the Government-touted mandatory minimum sentence of 15 years’ imprisonment.

In a Gleaner interview at the weekend, Llewellyn disclosed that Mundell, who was the first person to be sentenced under the new law, should have been indicted under Section 5 of the act instead of Section 45.

The development has now forced a suspension of matters related to the taking of a guilty plea or trial in relation to the illegal possession of a firearm under sections 5 and 45 of the new act.

Senior Deputy DPP Jeremy Taylor has been assigned to lead a team of prosecutors in reviewing all charges under the sections.

Section 5 outlines that no one should be in possession of a prohibited weapon and that anyone who contravenes that order commits a felony and will be sentenced to life imprisonment of not less than 15 years.

Prohibited weapon is defined as any prohibited firearm, any grenade, bomb or other like missile or any missile or missile launcher.

Meanwhile, prohibited firearm, among other things, is defined as any firearm in respect of which no firearm authorisation is granted under Part V or under the laws of another jurisdiction. Part V of the act speaks to firearm authorisation from the Firearm Licensing Authority.

Section 45 of the act, on the other hand, outlines that no one should be in possession of any firearm or ammunition without the appropriate firearm authorisation granted under Part V; or a firearm that is not marked in accordance with Section 29(1) (a) to (f) or 29(2).

The latter section speaks to the specific forms of identification a firearm, imported into or exported from Jamaica, should have.

This means that Mundell was charged and sentenced for having a legal gun belonging to someone else instead of being in possession of an illegal gun.

He pleaded guilty on December 16 after he was nabbed during an operation at premises in St Catherine 14 days earlier.

At the time of his arrest, he was being sought by the police for two years for an alleged murder that occurred in 2020.

The Gleaner was told that the file submitted by the police to the ODPP had Mundell being charged under Section 5 of the act. However, that was subsequently changed to Section 45.

Llewellyn said after multiple consultations with her team and the head of legal reform and the head of the legal unit in the Ministry of Justice, “it is now clear” that Section 4 acts as a “restriction” on the prosecutorial discretion to use Section 45 as an alternative to Section 5.

Section 4 says that unless otherwise specifically provided in the act, Part II shall not apply to any firearms or ammunition regulated under Part IV, and the provisions of Part IV shall not apply in respect of prohibited weapons.

Part II speaks to prohibitions in respect of firearms and ammunition, while Part IV addresses restrictions in respect of firearms and ammunition.

“So we can only use Section 45 to indict for unauthorised possession of a firearm where the firearm does have a permit or a licence attached to it but it’s just that the person whose possession in which it has been found is not the person who has the permit or the licence for that gun,” Llewellyn said.

She further explained that if a person pleads guilty under Section 45, it grants latitude to a sentencing judge to use the Criminal Justice Administration Amendment Act to give discounts. It allows for up to 50 per cent discount on a sentence if the accused pleads guilty on the first relevant date.

Justice Calys Wiltshire, who handed down the sentence in the Gun Court, considered that Mundell had no previous conviction and had pleaded guilty at the first reasonable occasion and did not waste the court’s time. She also factored that he had cooperated with the police and appeared remorseful.

Justice Wiltshire started at 10 years, but after doing her deductions for the mitigating and aggravating factors, the sentence was reduced to nine years.

It then dwindled down to four years and six months after he was given the maximum discount of 50 per cent.

Llewellyn said after revision of all cases dealing with illegal possession of firearm only by the end of this week, a nolle prosequi will be entered and a new case will begin if there are any part-heard matters.

In December, Police Commissioner Major General Antony Anderson said 70 people, including 63 men and seven women, had been charged under the new legislation.

“We’re going to do a review and where we need to rectify or reindict, we will do so. So this week, we’ll just put a pause on any trial or the taking of any plea in relation to illegal possession simpliciter. Everything else, I can tell you, we would have used Section 5,” Llewellyn told The Gleaner.

She said that her office will be meeting with the Police High Command before the end of the month and ahead of “a very detailed” seminar on the legislation.

At the same time, the DPP said that there needs to be a public education campaign on the law.

“Unfortunately, again what this reaffirms is that we would implore the authorities that when they have far-reaching criminal law, please make sure that those of us who are in the trenches as practitioners are invited at the different stages … ,” she said.

kimone.francis@gleanerjm.com