Wed | Oct 4, 2023

DPP criticised for abuse of process in gun possession appeal

Published:Tuesday | February 14, 2023 | 1:27 AMTanesha Mundle/Staff Reporter
DPP Paula Llewellyn is seeking to appeal Dennis Mundell’s sentence in the interest of justice.
DPP Paula Llewellyn is seeking to appeal Dennis Mundell’s sentence in the interest of justice.

Director of Public Prosecutions (DPP) Paula Llewellyn has been accused of an abuse of process after she indicated on Monday that her office would appeal the 51-month sentence of a St Catherine man for unauthorised gun possession under the new Firearms Act.

Labelling the move as “an absurdity”, defence lawyer Paul Gentles questioned the rationale of the DPP appealing “an error” that was made by her office in that the offender was indicted under the wrong section of the law.

Dennis Mundell, the first convict under the new act, was sentenced on Thursday.

The 28-year-old had pleaded guilty at the first relevant date and was given a maximum 50 per cent discount on his sentence after a year was shaved off by the judge after doing the calculations for the aggravating and mitigating factors.

A further three months was also deducted for time spent in custody.

The unexpectedly light sentence sparked public outcry amid a legislative push by the Government to impose mandatory minimum 15-year sentences for illegal possession of firearm.

But Llewellyn, in the aftermath, admitted that her office had blundered by indicting Mundell under a section of the act that does not stipulate the mandatory minimum of 15 years.

She explained that he was indicted under Section 45 but that he should have been charged under Section 5.

However, the DPP, in an about-face press statement on Monday, said that her office intended to appeal the sentence because it was in the best interest of justice.

“This view is held having regard to varying legal practitioner interpretations of sections 3, 4, 45(2) (including the penalty provision outlined in the Sixth Schedule of the FPRRA [Firearms (Prohibition, Restriction and Regulation) Act, 2022] at page 115), 101(6) and 101(8) of the FPRRA and the consequential amendments to the Criminal Justice Administration Act (referred to in the Seventh schedule of the FPRRA).”

Llewellyn said the appropriate administrative steps will be taken within the course of this week to file the relevant appeal so that the Court of Appeal can pronounce upon the appropriateness of the sentence.

Reacting to the development, Gentles said he was befuddled as to the DPP’s reason for the appeal and further that it was an injustice to his client.

“I’m having a challenge appreciating that they intend to appeal a decision that they made because the decision whether to charge under Section 45 or Section 5 is a matter for the DPP.

“So if the DPP makes a decision to charge under Section 45, the man having been pleaded, receives the sentence accordingly, how can you all then appeal a decision that you made? Now that is an absurdity,” he added.

Stressing that the DPP’s office is solely responsible for drafting indictments, Gentles said it was “ludicrous” to appeal a self-inflicted error.

According to Gentles, the judge did not err in law.

The lawyer noted that under the Criminal Justice Administration Amendment Act, an individual who pleads guilty at the first relevant date is entitled up to 50 per cent discount.

In this case, he said there was nothing to suggest why Mundell should not have got the maximum discounts as he had no previous convictions and had a good social enquiry report.

“There was no indication that the Criminal administration Amendment Act of 2015 has been repealed. That was not stated. So they can’t have their cake and eat it,” he said.

Weighing in on the issue, King’s Counsel Peter Champagnie was of a similar view that the judge did not blunder.

“I know that when you are appealing something, it’s really appealing on the basis that the judge fell into error. I don’t know that in this instance that the judge fell into any error; the judge was applying what was before her,” said Champagnie.

He continued: “And it would seem to me, therefore, to appeal in the circumstances may not be the ideal situation.”

He also agreed with the suggestion that the pending appeal could be viewed as an abuse of process.

Champagnie said that based on his understanding of Section 45, the judge is allowed to exercise discretion to impose a sentence that is lower than the mandatory minimum 15-year sentence. But in contrast to Gentles, Champagnie said if Mundell had been indicted under Section 5, he would not have been entitled to any discount.

Mundell 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 a murder that occurred in 2020.

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

Section 5 vs Section 45

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.

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.

The act, however, stipulates that on conviction in the Circuit Court on unauthorised possession of a firearm, the sentence should be life imprisonment. It further dictates that where a life sentence is being imposed, the pre-parole term should not be less than 15 years, while where a prescribed minimum term is being imposed, the offender must serve a term of not less than 10 years before being eligible for parole.