DPP gets retrial in firearms case

THE FIRST person whose sentence was challenged by the director of public prosecutions (DPP) because he did not receive the mandatory minimum sentence of 15 years’ imprisonment under the 2022 Amendment to the Firearms Act is to face a retrial.

He is Dennis Mundell, 30, of Spanish Town Road, Kingston who was sentenced in 2022 to four years and three months imprisonment each for unauthorised possession of firearm and unauthorised possession of ammunition after he pleaded guilty to the offences.

DPP Paula Llewellyn, KC, on behalf of the prosecution had appealed on the grounds that the judge did not have the power to impose those sentences and they were manifestly inadequate or unduly lenient.

Llewellyn argued that the judge did not have the authority to impose sentences for firearm offences other than that prescribed under the Firearms Act.

Convictions quashed

On March 15, the court after hearing legal arguments in the matter, quashed the convictions and sentences and remitted the case to the High Court Division of the Gun Court for a retrial.

During the hearing the DPP acknowledged that the indictment in Mundell’s case was incorrectly drafted under the non-existent section 45 (2) (a) of the Firearms Act. She said, on the contrary, the indictment should have been drafted under section 5 (1) of the Firearms Act. It was the DPP’s position that whether the indictment was drafted under section 5 or section 45, either offence would attract a mandatory minimum sentence of 15 years.

The court comprising Justice Frank Williams, Justice David Fraser and Justice Evan Brown ruled that the “learned judge fell into error when she held that the discretion that she enjoyed prior to the promulgation of the Firearms Act, 2022 subsisted”.

Irregular and unjust

The court said that it would be both irregular and unjust to substitute sentences prescribed for offences under section 45 if the respondent Mundell should have been indicted under section 5.

“The court’s recourse is to quash the conviction, under its inherent power of controlling its processes, in the interests of justice, having regard to the factual uncertainty underlining the indictment before us,” the court ruled.

Mundell’s sentences were set aside and the court said it was remitting the case to the court below for Mundell to be arraigned according to the facts ascertained and disclosed by the prosecution.

“In passing , we note that section 5 does not contemplate a charge for illegal possession of ammunition. We flag this for consideration of the prosecution, going forward, but make no pronouncement upon it,” the court said.

Attorneys-at-law Cecil J. Mitchell and Paul Geddes who represented Mundell had argued that notwithstanding the passage of the Firearms Act, 2022, the judge retained the sentencing discretion and powers granted to her under the Criminal Justice (Administration) Act and the 2017 Sentencing Guidelines for use by judges of the Supreme Court and the parish court.

Mundell had pleaded guilty in December 2022.

The police had raided a house on December 2, 2022 and found Mundell in possession of a loaded firearm for which he did not have a licence.

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