The Director of Public?Prosecutions (DPP) has lambasted the legislature for the Firearms (Amendment) Act 2002, saying killers can get less time in jail than someone guilty of having a bullet.
Queen’s Counsel Charles Leacock labelled the legislation a “knee-jerk” reaction to a shooting incident at the Queen Elizabeth Hospital, and said the Court of Appeal should “read down” the piece of legislation and let Parliament go back to the drawing board.
“This [Firearms (Amendment) Act] cannot be allowed to stand on the books,” the DPP stated. “It is patently unjust. It is ill-conceived.”
Leacock was speaking as the Court of Appeal heard arguments in Elvis Irvin Alexander’s gun appeal against ten years imposed by former Justice Christopher Blackman, on his second firearm offence.
Alexander’s attorneys, Ralph Thorne, QC, Sally Comissiong and Michelle Forde, raised the issue of the constitutionality of Section 30 of the Firearms (Amendment) Act, which outlines a mandatory minimum penalty of seven years for a first offence and a mandatory minimum sentence of 15 years for a second.
Yesterday, the DPP revealed he was appearing as amicus, but feeling the issue was very important, he begged the court for a hearing.
He conceded that given the facts of the case – Alexander was caught trying to sell the high-powered rifle which had a telescopic sight and it was his second gun conviction – he thought the sentence was bang on.
Leacock also admitted that Parliament was entitled to pass laws for the peace and good governance of society, but said the court must examine whether the mandatory minimum was appropriate or disproportionate in certain circumstances.
He said he believed Section 30 of the act was unconstitutional because it imposed a disproportionate penalty for “too wide a number of offences”; it criminalizes the possession of ammunition, including having one bullet and then provided a sentencing range of seven to 15 years for that one bullet; and it imposed “cruel, inhumane and unusual punishment” for an offence that “does not warrant that kind of punishment”.
“The fact that this section criminalizes from one bullet to 2 000 shows it criminalizes from the benign to the [severe] in the same breath.” He charged that legislators went way beyond their remit and painted all offences. The section, he said, also conflicted with a number of other laws, including the Criminal Appeal Act, the Supreme Court of Judicature Act and the Penal System Reform Act.
The DPP told the three-judge panel the section usurped a High Court judge’s discretion in sentencing; made mitigation by lawyers almost pointless; took away the Court of Appeal’s ability to vary a sentence downward, and conflicted with the Penal System Reform Act, which had non-custodial philosophy at its root.
“I’m just drawing to your attention the massive impact that this thing has not only on the ordinary citizen, but on the High Court, and the Court of Appeal as well.
“A man can commit manslaughter – kill a whole person – and get less than this,” Leacock said, referring to a case where a man was sentenced to four years for manslaughter.
“Most judges look at seven to 15 years, and they think it is too harsh. And when you have a draconian sentence, you will try to mitigate it,” the DPP said.
