CLA News / Normalised exceptions – the tale of the TCI’s 12-year mandatory minimum sentence under the Firearms Ordinance by Khamaal Collymore
The first half of 2024 in the Turks and Caicos Islands (TCI) was dominated by developments relating to the 12-year mandatory minimum sentence for illegal possession under the Firearms Ordinance. Under the Firearms Ordinance, judges are obliged to impose a sentence of at least twelve (12) years for offenders aged 18 and over at the time of the offence, unless there are exceptional circumstances.
The mandatory minimum sentence for illegal possession in the TCI was increased to twelve (12) years in 2022. Overall, there have been two (2) increases in the minimum sentence for illegal possession. First, it was increased from the initial five (5) years introduced in 2010 to seven (7) years in 2018, and then to twelve (12) years in 2022. Each increase appears to ignore the failures of the previous minimum. Each increase brings with it heightened risk of a finding that it contravenes the fundamental right against subjection to inhuman and degrading punishment.
Mandatory minimum sentences routinely attract constitutional scrutiny and are liable to be struck down where they are grossly disproportionate. The 12-year minimum sentence in the TCI has thus far managed to evade such constitutional scrutiny. There have been no formal constitutional challenges to the Firearms Ordinance since the mandatory minimum for illegal possession was increased to twelve (12) years in 2022.
Issues related to mandatory minimum sentences are not unique to the TCI. However, the context in which various matters arose catapulted these issues into public focus, locally and internationally.
A convenient starting point for this year’s developments is the Court of Appeal decision in Attorney General’s Reference (No. 1 of 2023) [2024] TCACA 4 (“Reference”), delivered 29 February 2024. That decision held that judges are required to impose custodial sentences even where there are exceptional circumstances. The impact of a finding of exceptional circumstances was that it allowed for sentences below the 12-year minimum. The Court of Appeal also confirmed that exceptional circumstances in this context refer to particular and unusual circumstances affecting the offender or the offence, which in the court’s opinion justify not imposing the mandatory minimum sentence. That test contemplates some unique feature(s) of a case which renders the minimum sentence disproportionate. The test does not contemplate broad-based non-imposition of the minimum sentence due to its inherent excessive nature. The decision did not address the constitutionality of the mandatory minimum sentence, as this was not raised in the Reference.
The Reference was submitted to the Court of Appeal in response to a series of outcomes the Attorney General considered unsatisfactory, but which the Crown was unable to challenge, since it does not have a right of appeal. In five (5) separate cases in the two (2) years following the increase to a 12-year minimum, the respective sentencing judges found that there were exceptional circumstances. Four (4) of the five (5) defendants were fined and the other received a sentence below the 12-year minimum. Dissatisfied with the outcomes, the Attorney General sought guidance for sentencing by way of the Reference.
In the aftermath of the decision, five (5) American tourists fell to be sentenced in separate cases for breaches of the Firearms Ordinance. Each was a licensed firearm holder in the US who had travelled to the TCI with ammunition. Each pleaded guilty, a factor expressly excluded from consideration in determining whether there are exceptional circumstances under the Firearms Ordinance.
As sentencing drew close, negative press intensified across the US, and with it, internal public scrutiny. Shortly before the first post-Reference sentence was expected, the Governor and Premier received a US Congressional delegation to discuss the issue. To its credit, the Government responded admirably, affirming the independence of the judiciary. In the absence of a political resolution, there were calls for the US to impose economic sanctions on the TCI.
Then came the first two sentences after the decision in the Reference. In both cases, the respective judges found exceptional circumstances. To satisfy the requirement for custodial sentences, the respective judges handed down a suspended sentence in one case, and a sentence of time-served (fourteen (14) days pending bail) in the other case.
Those outcomes appear to have cooled temperatures north of the TCI. Following those decisions, Parliament amended the Firearms Ordinance, removing the requirement for custodial sentences where exceptional circumstances are found, but otherwise retaining the 12-year mandatory minimum sentence.
The remainder of the five (5) post-Reference cases followed in similar vein: exceptional circumstances, fine, suspended sentence. The result is that the five (5) cases decided after the Reference resulted in similar outcomes to the five (5) that prompted the Reference. Exceptional circumstances have now become the norm and will likely continue to be until the real issue is addressed.
Khamaal Collymore
Khamaal is a litigator at Caribbean law firm, Stanbrook Prudhoe.
Turks and Caicos Islands
