Regina v Desmond Agard

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANGUILLA CIRCUIT (CRIMINAL) A.D. 2021 AXAHCR 2020/0015 REGINA v DESMOND AGARD Appearances: Ms. Nakishma Rogers-Hull, Senior Crown Counsel, Attorney General’s Chambers of counsel for the Crown ------------------------------------ 2021: March 15; 16; 29. ------------------------------------ JUDGMENT ON SENTENCING

[1]INNOCENT, J.: Mr. Desmond Agard (‘Mr. Agard’), the defendant in these proceedings, was indicted on 8th December 2020 for offences that occurred on 31st July 2019 and 15th August 2019. Counts one and two on the indictment relate to the offence of robbery contrary to section 258(1) of the Criminal Code, R.S.A. c.140 (the ‘Criminal Code’) and count three relates to the offence of possession of a firearm contrary to section 20(1)(b) of the Firearms Act, R.S.A. c.F30 (‘Firearms Act’).

[2]On completion of the preliminary inquiry into the allegations against Mr. Agard he entered a pleas of guilty. He was committed to the High Court for sentencing by the presiding magistrate on 27th August 2020. Upon his arraignment on 15th March 2021 Mr. Agard entered pleas of guilty to all counts on the indictment. His plea was accepted by the Crown. Mr. Agard was represented by counsel in the court below. However, he is unrepresented in the present proceedings.

[3]The facts presented by the Crown in relation to count one on the indictment are that on 15th August 2019 at about 7:30 pm Mr. Agard entered the premises of a certain business place situated at Stoney Ground in Anguilla armed with a firearm. Mr. Agard proceeded to hold up the cashier by pointing the firearm that he had in his possession at her while demanding money. The cashier emptied the cash register and gave him what it contained. She also gave him the money that she had collected from her float. Mr. Agard then fled the scene. At the material time Mr. Agard wore a black hoodie and he had a brown bandana tied around his face. Mr. Agard made off with the sum of EC$1,206.46.

[4]Based on what has been presented to the court by the Crown, Mr. Agard had previously, on 31st July 2019 at approximately 11:15 pm entered the same business establishment where he robbed another employee at gun point. On this occasion Mr. Agard made off with the sum of EC$2,150.56. This was the factual basis of count two on the indictment.

[5]The matter was subsequently reported to the police. On 20th August 2019 members of the Royal Anguilla Police Force (‘RAPF’) executed a search warrant at Mr. Agard’s residence. Items of evidential value connected to the offence were recovered during this initial search. A subsequent search of Mr. Agard’s premises was conducted by officers of the RAPF. During this subsequent search Mr. Agard escorted the officers to his bedroom where a firearm was recovered from underneath a chair. Mr. Agard pointed out the firearm to the police officers. The firearm was concealed within a piece of cloth.

[6]Mr. Agard was later interviewed under caution. In his interview under caution statement Mr. Agard told investigators: “I am the only person that go there and I did the second robbery. I needed money to pay my bills and my rent. I had already applied at other places for jobs but I did not get any call as yet so I was running really low on money - -- I was running low on food and supplies so I went for the worse.”

[7]Mr. Agard confessed to having committed the two robberies at the same business establishment on 31st July 2019 and 15th August 2019 respectively. Mr. Agard also confessed to being in possession of the firearm. It appeared that Mr. Agard cooperated with the police authorities throughout the investigation.

[8]It is unclear whether either the firearm or the cartridge were loaded. However, the firearm was recovered along with a magazine. The firearm was subjected to testing by Mr. Graham Husbands (‘Mr. Husbands’) a Firearm and Tool mark Examiner.1 The firearm in question was found to be a GT 28 model, Tanfoglio 8mm auto caliber semiautomatic gas gun. The pistol was designed to accommodate 8mm caliber gas cartridges. According to Mr. Husbands’ report he was unable to test fire the pistol due to the unavailability of the requisite gas cartridges. Mr. Husbands concluded that based on his examination and test he formed the conclusion that the 8mm caliber pistol was a firearm as defined by the Firearms Act of Anguilla.

[9]In light of Mr. Husbands’ findings, it is unclear whether the firearm recovered from Mr. Agard’s premises was capable of discharging any shot, bullet or missile. To that extent Mr. Husbands’ findings are inconclusive as to whether the gas pistol recovered from Mr. Agard’s premises fell within the meaning of “firearm” contemplated by section 1 of the Firearms Act. The dictionary to the Firearms Act defines “firearm” in the following manner: “… any lethal barrelled weapon from which any shot, bullet or other missile can be discharged, or any restricted weapon or, unless the context otherwise requires, any prohibited weapon, and includes any component part of any such weapon and any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon but does not include any air rifle, air gun, or air pistol of a type prescribed by the Governor and of a calibre so prescribed.”

[10]In the circumstances, it will be necessary to determine whether the gas pistol recovered from Mr. Agard fell within the definition of a “firearm” for the purposes of substantiating an offence pursuant to the provisions of section 20(1) (b) of the Firearms Act. In order to answer this question the court had recourse to the provisions of section 25 of the Firearms Act. It is worthy to note at this stage that the pistol found in Mr. Agard’s possession was not of the type prescribed by the Governor2 and therefore does not fall within the exception created by section 1 of the Firearms Act.

[11]Section 25(1) of the Firearms Act provides: “Every person who makes or attempts to make any use whatever of a firearm or imitation firearm with intent to commit or to aid the commission of an offence or to resist or prevent the lawful apprehension or detention of himself or some other person, is guilty of an offence against this subsection and shall, in addition to the penalty for that offence, be liable to be punished on conviction for the offence in relation to which the firearm was used. Section 25 (2) of the Firearms Act provides: “Every person who, at the time of committing or at the time of his apprehension for, any offence specified in Schedule 1, has in his possession any firearm or imitation firearm, unless he shows that he had it in his possession for a lawful object, is guilty of an offence against this subsection and, in addition to any penalty to which he may be sentenced for the first-mentioned offence, is liable on conviction to be punished accordingly.” The offence of robbery is an offence under Schedule 1 of the Firearms Act. Section 25(3) of the Firearms Act reads: “Any person guilty of an offence against subsection (1) or (2) is liable on conviction on indictment before the High Court to imprisonment for a term of 14 years.”

[12]In the circumstances, it is important to consider the definition of “firearm” and “imitation firearm” for the purposes of section 25 of the Firearms Act. Section 25(5) of the Firearms Act defines both “firearm” and “imitation firearm” for the purposes of section 25 subsections (1) and (2), and reads: “firearm” means any lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged and includes any prohibited weapon and any restricted weapon, whether such a lethal weapon or not; “imitation firearm” means anything which has the appearance of being a firearm within the meaning of this section whether it is capable of discharging any shot, bullet or missile or not.

[13]The dictionary to the firearms act defines “restricted weapon” in the following manner: “restricted weapon” means any weapon of whatever description or design which is adapted for the discharge of any noxious liquid, gas or other thing”

[14]Mr. Husbands’ conclusion, that based on his examination and test, he formed the conclusion that the pistol in question was a firearm as defined by the Firearms Act of Anguilla, seems equivocal having regard to his statement that “I was unable to test fire this pistol”. Clearly, it leaves one in doubt as to whether Mr. Husbands was applying the definition of a firearm under section 1 of the Firearms Act or under section 25(5) of the Firearms Act.

[15]Clearly, the pistol that Mr. Agard has in his possession fell within the definition of a “restricted weapon” for the purposes of the Firearms Act. Therefore, for the purposes of the definition of “firearm” in section 1 of the Firearms Act, at first blush it appears that a “restricted weapon” as defined in the dictionary to the Firearms Act falls squarely within the definition of a “firearm”. However, given the definition of “restricted weapon” pursuant to section 1 of the Firearms Act, it appears that it is necessary that the weapon is capable of discharging “any noxious liquid, gas or other thing”. Therefore, in light of the definition of “restricted weapon” under section 1 of the Firearms Act, it becomes important to consider whether the pistol in question was capable of discharging “any noxious liquid, gas or other thing”. This question is not answered conclusively by Mr. Husbands’ report.

[16]In the circumstances, and in the absence of any definitive answer regarding whether the pistol was capable of discharging any noxious liquid, gas or other thing, the court is constrained to find that the pistol in question was an “imitation firearm” or a “firearm” within the definition of section 25 of the Firearms Act. However, in the absence of any definitive answer regarding whether the pistol was capable of discharge or not, it appears that in any event, what was in Mr. Agard’s possession was and can properly be considered a component part of such restricted weapon. Therefore, the pistol, regardless of whether it was capable of discharge or not fell within the definition of “firearm” for the purposes of section 1 of the Firearms Act. In any event, Mr. Agard was not indicted for any offence under section 25 of the Firearms Act.

[17]Mr. Agard is now before the court for sentencing. Mr. Agard had been on bail prior to 15th March 2021 when he was remanded to custody by the court to await sentencing.

Approach to Sentencing

[18]In sentencing Mr. Agard the court has adopted the approach as set out in the Eastern Caribbean Supreme Court (Sentencing Guidelines) Rules, 2019 (‘ECSC Sentencing Guidelines’) and more specifically the provisions of the Sentencing Guidelines for Firearm Offences with the Eastern Caribbean Supreme Court (Sentencing Guidelines – Firearm Offences). In relation to the offences of robbery the court has adopted the approach contained in the Compendium Sentencing Guideline of the Eastern Caribbean Supreme Court Offences of Dishonesty (2nd Re- Issue)3

[19]The court adopted a starting point sentence by reference to the grid contained in the Sentencing Guideline – Firearm Offences. The starting point sentence was established based on the seriousness of the offence, including Mr. Agard’s culpability in the commission of the offence (Step 2) and the consequences of the offence as referenced by the harm caused in the commission of the offence (Step 1).

[20]According to the Sentencing Guidelines – Firearm Offences, the starting point sentence arrived at was adjusted within the range to take account of the aggravating and mitigating factors in the case. This figure was also adjusted to take account of Mr. Agard’s personal mitigation.

[21]Having arrived at a sentence that is within the appropriate rage for the commission of the offence, the court considered whether there were any factors warranting a discount from the sentence arrived at; for example, whether and what if any discount was required to take into account Mr. Agard’s plea of guilty, his cooperation with police investigators among other things.

Robbery Offences

Consequences

[22]The court assessed the consequences by reference to the harm done at Category 3 – lesser. There appeared to be no physical harm caused to the victims. There also appeared to be minimal detrimental effect on the victim’s business activity. Indeed none was reported. In fact, no victim impact statement was produced to the court. However, it is safe to assume that the victims of the offences may quite likely have been put in fear of danger, considering that a firearm was brandished at them in the middle of the night. In any event, whatever psychological impact there may have been on the victims is not substantiated by any means. Nevertheless, whatever psychological impact there may have been on the victims would have at the very least been minimal.

Seriousness

[23]In assessing seriousness the court has placed the offence at Level A. The commission of the subject offences of robbery involved the production of a firearm or imitation firearm.

Starting Point

[24]Therefore, the court determined that the appropriate starting point sentence would fall at 45% of the maximum statutory penalty and within a range of 30% to 60% of the maximum statutory penalty.

[25]The maximum statutory penalty for the offence of robbery is life imprisonment.4 According to the Sentencing Guidelines for offences of dishonesty where the maximum sentence is life imprisonment, for the purposes of calculation of the sentence, life imprisonment is to be treated as 30 years. However, this does not have the effect of meaning that the sentence where the maximum is life can never be more than 30 years.

[26]In any event, the court possesses the discretion to sentence an offender to any lesser penalty than that prescribed by law.5 The court determined that the application of the guidelines would produce a sentence that was disproportionate to the offending. The Application of the Sentencing Guidelines for offences of dishonestly would inevitably result in a starting point sentence of 13 years and 6 months imprisonment.6 The sentencing range would be within the range of 9 years to 18 years imprisonment.7 In any event, the application of the Guidelines would necessarily result in the imposition of a wholly disproportionate sentence. Therefore, there appears to be no need to depart from the Sentencing Guidelines for offences of dishonesty in the present case. Any sentence imposed by the court after taking into account the aggravating and mitigating factors in the case, including Mr. Agard’s personal mitigation, might very well result in a sentence that is just and proportionate to the offending conduct.

[27]Therefore, the starting point sentence adopted by the court is at the lower end of the range which places the starting point at 9 years imprisonment.

Aggravating and Mitigating Factors

[28]The court having determined the starting point sentence, considered the aggravating and mitigating factors present in the case.

Aggravating Factors

[29]The court was able to discern the following aggravating factors in the present case. There was notably an attempt by Mr. Agard to conceal his identity. Mr. Agard, by his own admission, claimed to have committed the robberies for financial gain. Notwithstanding Mr. Agard’s assertions that his conduct was entirely spontaneous, it appears that some degree of planning, premeditation and preparation was involved in the commission of the offence. This was not a wanton act. Mr. Agard committed the robberies at the same business establishment twice within a relatively short space of time.

Mitigating Factors

[30]The court took into consideration the following mitigating factors in the commission of the offence. Mr. Agard willingly admitted to police authorities that he had committed the offences and that he was in possession of the firearm that was recovered. In addition, Mr. Agard appeared to have cooperated with police investigators in the course of their investigations. The court also took into account the fact that the firearm was not used to cause injury or damage to property. It also appears that Mr. Agard has taken steps towards restitution of the stolen property.

[31]In the circumstances, the court finds that in the present case, the aggravating factors outweigh the mitigating factors. Therefore, the court will apply an appropriate sentence by adjusting the starting point sentence of 9 years imprisonment downwards by 3 years imprisonment to take into account the mitigating factors present in the case. In the circumstances, the court will not make any adjustment to the starting point sentence of 6 years imprisonment.

Personal Mitigation

[32]In making an assessment of matters related to Mr. Agard’s personal mitigation, the court took into account Mr. Agard’s genuine remorse for having committed the subject offences. In addition, Mr. Agard appeared to have taken steps to address his offending behaviour. He is now engaged in meaningful employment, which hopefully will alleviate his financial distress which he claimed motivated him to commit the subject offences. Mr. Agard has no previous convictions for any or any similar offence. The Crown has presented no record of previous convictions. In addition, it appeared that Mr. Agard has taken steps towards compensating the victim for their loss. In the circumstances, the count will discount a period of 3 years from the sentence of 6 years imprisonment. The remainder of the sentence of 6 years imprisonment would be 3 years imprisonment.

[33]Notwithstanding this first brush with the law, Mr. Agard is a young man aged 24 years of relatively good character. In the circumstances, it does not appear that any period in excess of any notional sentence that the court is minded to impose is necessary to achieve the permissible aim of rehabilitation in the case of Mr. Agard. There is no evidence of the need to protect the public from further harm from Mr. Agard. There is no evidence of dangerousness and none can be implied.

Credit for Guilty Plea

[34]Mr. Agard is entitled to credit for his early guilty plea. Typically, Mr. Agard would be entitled to a discount equivalent to 1/3 of the notional sentence that the court was minded to impose to take account of an early guilty plea.

[35]In determining whether the pleas were entered at the earliest available opportunity, the court had occasion to examine the provisions of the Criminal Procedure (Committal for Sentence) Act8, in particular the provisions of section 1 thereof. It appears that pursuant to the provisions of the Criminal Procedure Act that where, except when the charge is one of treason or murder, if an accused person in any statement referred to in section 59 of the Magistrate’s Code of Procedure Act says or admits that he is guilty of the charge, the Magistrate shall, instead of committing the accused for trial, order him to be committed for sentence before the High Court.

[36]Section 3 of the Criminal Procedure (Committal for Sentence) Act sets out the procedure to be followed in a case where an accused is committed for sentence before the High Court. It provides that as soon as conveniently may be after the filing of an indictment against an accused person committed for sentence, the Registrar of the High Court shall issue a summons to the accused person to appear and, if he is in custody, an order to the gaoler to bring the prisoner before a Judge of the High Court at a time to be fixed by the Judge, and the Registrar shall notify the Attorney General accordingly.

[37]Therefore, it appears that Mr. Agard had availed himself of this procedure at an early stage of the committal proceedings which was in fact a paper committal. In fact, Mr. Agard had the benefit of counsel in the Magistrate’s Court. In the circumstances, it cannot properly be said that the pleas were not entered at the earliest or first available opportunity. Be that as it may, it appears that Mr. Agard was committed for sentence on 27th August 2020 and only indicted on 8th December 2020. Mr. Agard was arraigned on 15th March 2021. The lack of expediency with which matters such as these come before the High Court leaves much to be desired given the procedure set out at section 3 of the Criminal Procedure (Committal for Sentence) Act.

[38]In the premises, Mr. Agard will be given full credit for his guilty plea. Therefore, Mr. Agard is entitled to a discount of 1/3 from the notional sentence. The discount of 1/3 from the notional sentence amounts to a reduction of 1 year from the notional sentence of 3 years. Therefore, the sentence after the discount for the guilty plea would be 2 years imprisonment.

Firearm Offence

[39]In determining the appropriate sentence in respect of the charge of possession of a firearm without a license, the court will apply the same approach to sentencing as in the case of the offences of dishonesty with which Mr. Agard is before the court for sentencing. Consequences [37] The court has determined that the commission of the offence of possession of a firearm imports a moderate degree of harm. In the premises, the court has placed Mr. Agard’s offending conduct within Category 2 of the Sentencing Guidelines for firearm offences. Clearly, Mr. Agard was in possession of a firearm during the commission of another serious offence. Seriousness [38] Notwithstanding that the firearm may have been an imitation firearm, the circumstances of the case reveal that Mr. Agard brandished the firearm to achieve his objective by intimidating his victims or at the very least putting them in fear. Therefore, the court has determined that the offending conduct falls within Level B with respect to seriousness. Starting Point [39] In the premises, the starting point sentence according to the grid contained in the Sentencing Guidelines places the starting point at 50% of the statutory penalty and within a range of 35% to 65%.

[40]The penalty prescribed by law for the commission of the offence of possession of a firearm without there being in force a firearms user’s permit is liable on indictment to a fine or to imprisonment for 14 years or both.9

[41]Therefore, according to the Sentencing Guidelines, the starting point sentence would be 7 years imprisonment. This figure of 7 years imprisonment will be adjusted within the prescribed range by taking into account the aggravating and mitigating factors present in the instant case.

Aggravating and Mitigating Factors

[42]The court has considered the circumstances surrounding the commission of the offence, and has taken the following aggravating and mitigating factors in to account in determining the appropriate sentence within the prescribed range.

Aggravating Factors

[43]The court has determined that no aggravating factors are present in the instant case. To avoid double counting the court has not considered any of the factors that it has used to determine the seriousness or consequences of the commission of the offence which appear to be the only discernible aggravating features of the present case.

Mitigating Factors

[44]The court has discerned the following mitigating factors present in the instant case. Mr. Agard appeared to have voluntarily surrendered the firearm to the police authorities. The firearm in question was recovered by the police and is not at large. The firearm in question was not modified in any way to make it more dangerous. There is no evidence that Mr. Agard had possession of any ammunition despite the police having recovered a magazine. Furthermore, in light of Mr. Husbands’ report, it is uncertain whether the firearm in question is capable of discharging any projectiles. The firearm was not discharged during the commission of the offences of robbery. The firearm was not used to cause injury persons or damage to property.

Personal Mitigation

[45]The personal mitigation taken into consideration by the court with respect to the present offence remains the same as that canvassed in relation to the offence of robbery.

[46]In the circumstances, the court has arrived at the view that the mitigating circumstances outweigh the aggravating circumstances of the case. Therefore, the court will adjust the period of 7 years imprisonment downwards to take account of this fact. Accordingly, the court would place the sentence for the commission of the subject offence at the lowest end of the sentencing range. The result is a sentence of 4 years and 10 months imprisonment. The court having taken into account Mr. Agard’s personal mitigation will discount the period of 1 year and 10 months from this sentence to arrive at a sentence of 3 years imprisonment. Therefore, the notional sentence which the court finds appropriate is 3 years imprisonment.

Credit for Guilty Plea

[47]The court has already determined that Mr. Agard is entitled to full credit for his guilty plea by way of reduction from the notional term, a period equivalent to 1/3 of the notional sentence. Therefore, the resulting sentence will be 2 years imprisonment.

Totality

[48]The court is of the considered view, that having regard to all the circumstances of Mr. Agard’s offending, that in sentencing Mr. Agard for more than one offence, the sentence imposed reflects the totality of Mr. Agard’s offending and is just and proportionate.

Time Spent on Remand

[49]Mr. Agard has been on remand from 15th March 2021 awaiting sentence. Therefore, Mr. Agard has spent a period of 15 days on remand. Nevertheless, Mr. Agard has been on bail throughout. Therefore, the court does not consider it to be appropriate to grant any discount from the notional term on account of time spent by Mr. Agard on remand awaiting sentence.

[50]Therefore, the sentence of the court is that Mr. Agard be sentenced to 2 years imprisonment on each count in the indictment.

Consecutive or Concurrent Sentences

[51]The court has taken into account the fact that the respective offences are all of a similar nature and involved the same victim. In addition, the offences occurred within a relatively short period of time. Therefore, the sentences imposed with respect to each offence shall run concurrently.

Suspended Sentence10

[52]In passing sentence, the court is required to consider whether any alternative sentence can be imposed to meet the justice of the case, and to ensure that the punishment meted out is proportionate and commensurate with the degree of criminal culpability and harm in the commission of the offence.

[53]In this regard, the court has considered the likelihood of the imposition of a suspended sentence. In applying its discretion on the question of whether to impose a suspended sentence, the court has taken into account Mr. Agard’s age and his personal mitigation, and has formed the view that any progress that Mr. Agard has made since the date of the commission of the subject offences is likely to be derailed by the imposition of an immediate custodial sentence. Mr. Agard does not present a risk to danger to the public. Therefore, the court has determined that in all the circumstances of the present case, it would be appropriate to suspend the sentences herein imposed.

Compensation11

[54]In addition to the sentences imposed herein, Mr. Agard shall pay the sum of EC$3,357.02 as restitution to the victim within 6 months, in default thereof, Mr. Agard shall serve a term of 6 months imprisonment. Such term of 6 months imprisonment shall run concurrent to any term of imprisonment that Mr. Agard is likely to serve under sentence of the court in the present proceedings.

Forfeiture and Destruction

[55]Section 46 of the Firearms Act empowers the court before which any person is convicted of an offence under the Firearms Act, to make such order as to the forfeiture or disposal of any firearm or ammunition found in his possession as the court thinks fit. In the circumstances, the court also orders the forfeiture and destruction of the pistol in question.

Order

[56]The court’s order is therefore as follows: - 1. The defendant Desmond Agard is hereby sentenced to a term of 2 years imprisonment on each count in the indictment to run concurrently. 2. The sentences of 2 years imprisonment herein shall not take effect unless, during a period specified in this order, being not less than one year from the date of the order, being 28th March 2022, Desmond Agard commits in Anguilla another offence punishable with imprisonment whereupon the sentences of 2 years imprisonment shall take effect immediately and such term of imprisonment imposed herein shall run consecutive to any term of imprisonment imposed for the latter offending. 3. The defendant Desmond Agard is ordered to pay the sum of EC$3,357.02 as restitution to the victim within six (6) months, in default 6 months imprisonment. The said period of 6 months imprisonment shall run concurrent with any other term of imprisonment that Desmond Agard is liable to serve under judgment of the court in the present proceedings. 4. The Model GT 28 Tanfoglio 8 mm semiautomatic gas gun shall be forfeited by the Royal Anguilla Police Force and be destroyed forthwith.

Shawn Innocent

High Court Judge

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANGUILLA CIRCUIT (CRIMINAL) A.D. 2021 AXAHCR 2020/0015 REGINA v DESMOND AGARD Appearances: Ms. Nakishma Rogers-Hull, Senior Crown Counsel, Attorney General’s Chambers of counsel for the Crown ———————————— 2021: March 15; 16; 29. ———————————— JUDGMENT ON SENTENCING

[1]INNOCENT, J.: Mr. Desmond Agard (‘Mr. Agard’), the defendant in these proceedings, was indicted on 8th December 2020 for offences that occurred on 31st July 2019 and 15th August 2019. Counts one and two on the indictment relate to the offence of robbery contrary to section 258(1) of the Criminal Code, R.S.A. c.140 (the ‘Criminal Code’) and count three relates to the offence of possession of a firearm contrary to section 20(1)(b) of the Firearms Act, R.S.A. c.F30 (‘Firearms Act’).

[2]On completion of the preliminary inquiry into the allegations against Mr. Agard he entered a pleas of guilty. He was committed to the High Court for sentencing by the presiding magistrate on 27th August 2020. Upon his arraignment on 15th March 2021 Mr. Agard entered pleas of guilty to all counts on the indictment. His plea was accepted by the Crown. Mr. Agard was represented by counsel in the court below. However, he is unrepresented in the present proceedings.

[3]The facts presented by the Crown in relation to count one on the indictment are that on 15th August 2019 at about 7:30 pm Mr. Agard entered the premises of a certain business place situated at Stoney Ground in Anguilla armed with a firearm. Mr. Agard proceeded to hold up the cashier by pointing the firearm that he had in his possession at her while demanding money. The cashier emptied the cash register and gave him what it contained. She also gave him the money that she had collected from her float. Mr. Agard then fled the scene. At the material time Mr. Agard wore a black hoodie and he had a brown bandana tied around his face. Mr. Agard made off with the sum of EC$1,206.46.

[4]Based on what has been presented to the court by the Crown, Mr. Agard had previously, on 31st July 2019 at approximately 11:15 pm entered the same business establishment where he robbed another employee at gun point. On this occasion Mr. Agard made off with the sum of EC$2,150.56. This was the factual basis of count two on the indictment.

[5]The matter was subsequently reported to the police. On 20th August 2019 members of the Royal Anguilla Police Force (‘RAPF’) executed a search warrant at Mr. Agard’s residence. Items of evidential value connected to the offence were recovered during this initial search. A subsequent search of Mr. Agard’s premises was conducted by officers of the RAPF. During this subsequent search Mr. Agard escorted the officers to his bedroom where a firearm was recovered from underneath a chair. Mr. Agard pointed out the firearm to the police officers. The firearm was concealed within a piece of cloth.

[6]Mr. Agard was later interviewed under caution. In his interview under caution statement Mr. Agard told investigators: “I am the only person that go there and I did the second robbery. I needed money to pay my bills and my rent. I had already applied at other places for jobs but I did not get any call as yet so I was running really low on money — I was running low on food and supplies so I went for the worse.”

[7]Mr. Agard confessed to having committed the two robberies at the same business establishment on 31st July 2019 and 15th August 2019 respectively. Mr. Agard also confessed to being in possession of the firearm. It appeared that Mr. Agard cooperated with the police authorities throughout the investigation.

[8]It is unclear whether either the firearm or the cartridge were loaded. However, the firearm was recovered along with a magazine. The firearm was subjected to testing by Mr. Graham Husbands (‘Mr. Husbands’) a Firearm and Tool mark Examiner. The firearm in question was found to be a GT 28 model, Tanfoglio 8mm auto caliber semiautomatic gas gun. The pistol was designed to accommodate 8mm caliber gas cartridges. According to Mr. Husbands’ report he was unable to test fire the pistol due to the unavailability of the requisite gas cartridges. Mr. Husbands concluded that based on his examination and test he formed the conclusion that the 8mm caliber pistol was a firearm as defined by the Firearms Act of Anguilla.

[9]In light of Mr. Husbands’ findings, it is unclear whether the firearm recovered from Mr. Agard’s premises was capable of discharging any shot, bullet or missile. To that extent Mr. Husbands’ findings are inconclusive as to whether the gas pistol recovered from Mr. Agard’s premises fell within the meaning of “firearm” contemplated by section 1 of the Firearms Act. The dictionary to the Firearms Act defines “firearm” in the following manner: “… any lethal barrelled weapon from which any shot, bullet or other missile can be discharged, or any restricted weapon or, unless the context otherwise requires, any prohibited weapon, and includes any component part of any such weapon and any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon but does not include any air rifle, air gun, or air pistol of a type prescribed by the Governor and of a calibre so prescribed.”

[10]In the circumstances, it will be necessary to determine whether the gas pistol recovered from Mr. Agard fell within the definition of a “firearm” for the purposes of substantiating an offence pursuant to the provisions of section 20(1) (b) of the Firearms Act. In order to answer this question the court had recourse to the provisions of section 25 of the Firearms Act. It is worthy to note at this stage that the pistol found in Mr. Agard’s possession was not of the type prescribed by the Governor and therefore does not fall within the exception created by section 1 of the Firearms Act.

[11]Section 25(1) of the Firearms Act provides: “Every person who makes or attempts to make any use whatever of a firearm or imitation firearm with intent to commit or to aid the commission of an offence or to resist or prevent the lawful apprehension or detention of himself or some other person, is guilty of an offence against this subsection and shall, in addition to the penalty for that offence, be liable to be punished on conviction for the offence in relation to which the firearm was used. Section 25 (2) of the Firearms Act provides: “Every person who, at the time of committing or at the time of his apprehension for, any offence specified in Schedule 1, has in his possession any firearm or imitation firearm, unless he shows that he had it in his possession for a lawful object, is guilty of an offence against this subsection and, in addition to any penalty to which he may be sentenced for the first-mentioned offence, is liable on conviction to be punished accordingly.” The offence of robbery is an offence under Schedule 1 of the Firearms Act. Section 25(3) of the Firearms Act reads: “Any person guilty of an offence against subsection (1) or (2) is liable on conviction on indictment before the High Court to imprisonment for a term of 14 years.”

[12]In the circumstances, it is important to consider the definition of “firearm” and “imitation firearm” for the purposes of section 25 of the Firearms Act. Section 25(5) of the Firearms Act defines both “firearm” and “imitation firearm” for the purposes of section 25 subsections (1) and (2), and reads: “firearm” means any lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged and includes any prohibited weapon and any restricted weapon, whether such a lethal weapon or not; “imitation firearm” means anything which has the appearance of being a firearm within the meaning of this section whether it is capable of discharging any shot, bullet or missile or not.

[13]The dictionary to the firearms act defines “restricted weapon” in the following manner: “restricted weapon” means any weapon of whatever description or design which is adapted for the discharge of any noxious liquid, gas or other thing”

[14]Mr. Husbands’ conclusion, that based on his examination and test, he formed the conclusion that the pistol in question was a firearm as defined by the Firearms Act of Anguilla, seems equivocal having regard to his statement that “I was unable to test fire this pistol”. Clearly, it leaves one in doubt as to whether Mr. Husbands was applying the definition of a firearm under section 1 of the Firearms Act or under section 25(5) of the Firearms Act.

[15]Clearly, the pistol that Mr. Agard has in his possession fell within the definition of a “restricted weapon” for the purposes of the Firearms Act. Therefore, for the purposes of the definition of “firearm” in section 1 of the Firearms Act, at first blush it appears that a “restricted weapon” as defined in the dictionary to the Firearms Act falls squarely within the definition of a “firearm”. However, given the definition of “restricted weapon” pursuant to section 1 of the Firearms Act, it appears that it is necessary that the weapon is capable of discharging “any noxious liquid, gas or other thing”. Therefore, in light of the definition of “restricted weapon” under section 1 of the Firearms Act, it becomes important to consider whether the pistol in question was capable of discharging “any noxious liquid, gas or other thing”. This question is not answered conclusively by Mr. Husbands’ report.

[16]In the circumstances, and in the absence of any definitive answer regarding whether the pistol was capable of discharging any noxious liquid, gas or other thing, the court is constrained to find that the pistol in question was an “imitation firearm” or a “firearm” within the definition of section 25 of the Firearms Act. However, in the absence of any definitive answer regarding whether the pistol was capable of discharge or not, it appears that in any event, what was in Mr. Agard’s possession was and can properly be considered a component part of such restricted weapon. Therefore, the pistol, regardless of whether it was capable of discharge or not fell within the definition of “firearm” for the purposes of section 1 of the Firearms Act. In any event, Mr. Agard was not indicted for any offence under section 25 of the Firearms Act.

[17]Mr. Agard is now before the court for sentencing. Mr. Agard had been on bail prior to 15th March 2021 when he was remanded to custody by the court to await sentencing. Approach to Sentencing

[18]In sentencing Mr. Agard the court has adopted the Approach as set out in the Eastern Caribbean Supreme Court (Sentencing Guidelines) Rules, 2019 (‘ECSC Sentencing Guidelines’) and more specifically the provisions of the Sentencing Guidelines for Firearm Offences with the Eastern Caribbean Supreme Court (Sentencing Guidelines – Firearm Offences). In relation to the offences of robbery the court has adopted the approach contained in the Compendium Sentencing Guideline of the Eastern Caribbean Supreme Court Offences of Dishonesty (2nd Re-Issue)

[19]The court adopted a starting point sentence by reference to the grid contained in the Sentencing Guideline – Firearm Offences. The starting point sentence was established based on the seriousness of the offence, including Mr. Agard’s culpability in the commission of the offence (Step 2) and the consequences of the offence as referenced by the harm caused in the commission of the offence (Step 1).

[20]According to the Sentencing Guidelines – Firearm Offences, the starting point sentence arrived at was adjusted within the range to take account of the aggravating and mitigating factors in the case. This figure was also adjusted to take account of Mr. Agard’s personal mitigation.

[21]Having arrived at a sentence that is within the appropriate rage for the commission of the offence, the court considered whether there were any factors warranting a discount from the sentence arrived at; for example, whether and what if any discount was required to take into account Mr. Agard’s plea of guilty, his cooperation with police investigators among other things. Robbery Offences Consequences

[23]In assessing seriousness the court has placed the offence at Level A. The commission of the subject Offences of robbery involved the production of a firearm or imitation firearm. Starting Point

[24]Therefore, the court determined that the appropriate starting point sentence would fall at 45% of the maximum statutory penalty and within a range of 30% to 60% of the maximum statutory penalty.

[22]The court assessed the consequences by reference to the harm done at Category 3 – lesser. There appeared to be no physical harm caused to the victims. There also appeared to be minimal detrimental effect on the victim’s business activity. Indeed none was reported. In fact, no victim impact statement was produced to the court. However, it is safe to assume that the victims of the offences may quite likely have been put in fear of danger, considering that a firearm was brandished at them in the middle of the night. In any event, whatever psychological impact there may have been on the victims is not substantiated by any means. Nevertheless, whatever psychological impact there may have been on the victims would have at the very least been minimal. Seriousness

[26]In any event, the court possesses the discretion to sentence an offender to any lesser penalty than that prescribed by law. The court determined that the application of the guidelines would produce a sentence that was disproportionate to the offending. The Application of the Sentencing Guidelines for offences of dishonestly would inevitably result in a starting point sentence of 13 years and 6 months imprisonment. The sentencing range would be within the range of 9 years to 18 years imprisonment. In any event, the application of the Guidelines would necessarily result in the imposition of a wholly disproportionate sentence. Therefore, there appears to be no need to depart from the Sentencing Guidelines for offences of dishonesty in the present case. Any sentence imposed by the court after taking into account the aggravating and mitigating factors in the case, including Mr. Agard’s personal mitigation, might very well result in a sentence that is just and proportionate to the offending conduct.

[28]The court having determined the Starting Point sentence, considered the aggravating and mitigating factors present in the case. Aggravating Factors

[25]The maximum statutory penalty for the offence of robbery is life imprisonment. According to the Sentencing Guidelines for offences of dishonesty where the maximum sentence is life imprisonment, for the purposes of calculation of the sentence, life imprisonment is to be treated as 30 years. However, this does not have the effect of meaning that the sentence where the maximum is life can never be more than 30 years.

[27]Therefore, the starting point sentence adopted by the court is at the lower end of the range which places the starting point at 9 years imprisonment. Aggravating and Mitigating Factors

[33]Notwithstanding this first brush with the law, Mr. Agard is a young man aged 24 years of relatively good character. In the circumstances, it does not appear that any period in excess of any notional sentence that the court is minded to impose is necessary to achieve the permissible aim of rehabilitation in the case of Mr. Agard. There is no evidence of the need to protect the public from further harm from Mr. Agard. There is no evidence of dangerousness and none can be implied. Credit for Guilty Plea

[35]In determining whether the pleas were entered at the earliest available opportunity, the court had occasion to examine the provisions of the Criminal Procedure (Committal for Sentence) Act , in particular the provisions of section 1 thereof. It appears that pursuant to the provisions of the Criminal Procedure Act that where, except when the charge is one of treason or murder, if an accused person in any statement referred to in section 59 of the Magistrate’s Code of Procedure Act says or admits that he is guilty of the charge, the Magistrate shall, instead of committing the accused for trial, order him to be committed for sentence before the High Court.

[29]The court was able to discern the following aggravating factors in the present case. There was notably an attempt by Mr. Agard to conceal his identity. Mr. Agard, by his own admission, claimed to have committed the robberies for financial gain. Notwithstanding Mr. Agard’s assertions that his conduct was entirely spontaneous, it appears that some degree of planning, premeditation and preparation was involved in the commission of the offence. This was not a wanton act. Mr. Agard committed the robberies at the same business establishment twice within a relatively short space of time. Mitigating Factors

[37]Therefore, it appears that Mr. Agard had availed himself of this procedure at an early stage of the committal proceedings which was in fact a paper committal. In fact, Mr. Agard had the benefit of counsel in the Magistrate’s Court. In the circumstances, it cannot properly be said that the pleas were not entered at the earliest or first available opportunity. Be that as it may, it appears that Mr. Agard was committed for sentence on 27th August 2020 and only indicted on 8th December 2020. Mr. Agard was arraigned on 15th March 2021. The lack of expediency with which matters such as these come before the High Court leaves much to be desired given the procedure set out at section 3 of the Criminal Procedure (Committal for Sentence) Act.

[30]The court took into consideration the following mitigating factors in the commission of the offence. Mr. Agard willingly admitted to police authorities that he had committed the offences and that he was in possession of the firearm that was recovered. In addition, Mr. Agard appeared to have cooperated with police investigators in the course of their investigations. The court also took into account the fact that the firearm was not used to cause injury or damage to property. It also appears that Mr. Agard has taken steps towards restitution of the stolen property.

[31]In the circumstances, the court finds that in the present case, the aggravating factors outweigh the mitigating factors. Therefore, the court will apply an appropriate sentence by adjusting the starting point sentence of 9 years imprisonment downwards by 3 years imprisonment to take into account the mitigating factors present in the case. In the circumstances, the court will not make any adjustment to the starting point sentence of 6 years imprisonment. Personal Mitigation

[37]The court has determined that the commission of the offence of possession of a firearm imports a moderate degree of harm. In the premises, the court has placed Mr. Agard’s offending conduct within Category 2 of the Sentencing Guidelines for firearm offences. Clearly, Mr. Agard was in possession of a firearm during the commission of another serious offence. Seriousness

[32]In making an assessment of matters related to Mr. Agard’s personal mitigation, the court took into account Mr. Agard’s genuine remorse for having committed the subject offences. In addition, Mr. Agard appeared to have taken steps to address his offending behaviour. He is now engaged in meaningful employment, which hopefully will alleviate his financial distress which he claimed motivated him to commit the subject offences. Mr. Agard has no previous convictions for any or any similar offence. The Crown has presented no record of previous convictions. In addition, it appeared that Mr. Agard has taken steps towards compensating the victim for their loss. In the circumstances, the count will discount a period of 3 years from the sentence of 6 years imprisonment. The remainder of the sentence of 6 years imprisonment would be 3 years imprisonment.

[40]The penalty prescribed by law for the commission of the offence of possession of a firearm without there being in force a firearms user’s permit is liable on indictment to a fine or to imprisonment for 14 years or both.

[34]Mr. Agard is entitled to credit for his early guilty plea. Typically, Mr. Agard would be entitled to a discount equivalent to 1/3 of the notional sentence that the court was minded to impose to take account of an early guilty plea.

[36]Section 3 of the Criminal Procedure (Committal for Sentence) Act sets out the procedure to be followed in a case where an accused is committed for sentence before the High Court. It provides that as soon as conveniently may be after the filing of an indictment against an accused person committed for sentence, the Registrar of the High Court shall issue a summons to the accused person to appear and, if he is in custody, an order to the gaoler to bring the prisoner before a Judge of the High Court at a time to be fixed by the Judge, and the Registrar shall notify the Attorney General accordingly.

[38]In the premises, Mr. Agard will be given full credit for his guilty plea. Therefore, Mr. Agard is entitled to a discount of 1/3 from the notional sentence. The discount of 1/3 from the notional sentence amounts to a reduction of 1 year from the notional sentence of 3 years. Therefore, the sentence after the discount for the guilty plea would be 2 years imprisonment. Firearm Offence

[46]In the circumstances, the court has arrived at the view that the mitigating circumstances outweigh the aggravating circumstances of the case. Therefore, the court will adjust the period of 7 years imprisonment downwards to take account of this fact. Accordingly, the court would place the sentence for the commission of the subject Offence at the lowest end of the sentencing range. The result is a sentence of 4 years and 10 months imprisonment. The court having taken into account Mr. Agard’s personal mitigation will discount the period of 1 year and 10 months from this sentence to arrive at a sentence of 3 years imprisonment. Therefore, the notional sentence which the court finds appropriate is 3 years imprisonment. Credit for Guilty Plea

[39]In determining the appropriate sentence in respect of the charge of possession of a firearm without a license, the court will apply the same approach to sentencing as in the case of the offences of dishonesty with which Mr. Agard is before the court for sentencing. Consequences

[41]Therefore, according to the Sentencing Guidelines, the starting point sentence would be 7 years imprisonment. This figure of 7 years imprisonment will be adjusted within the prescribed range by taking into account the aggravating and mitigating factors present in the instant case. Aggravating and Mitigating Factors

[50]Therefore, the sentence of the court is that Mr. Agard be sentenced to 2 years imprisonment on each count in the indictment. Consecutive or Concurrent Sentences

[42]The court has considered the circumstances surrounding the commission of the offence, and has taken the following aggravating and mitigating factors in to account in determining the appropriate sentence within the prescribed range. Aggravating Factors

[52]In passing sentence, the court is required to consider whether any alternative sentence can be imposed to meet the justice of the case, and to ensure that the punishment meted out is proportionate and commensurate with the degree of criminal culpability and harm in the commission of the offence.

[43]The court has determined that no aggravating factors are present in the instant case. To avoid double counting the court has not considered any of the factors that it has used to determine the seriousness or consequences of the commission of the offence which appear to be the only discernible aggravating features of the present case. Mitigating Factors

[54]In addition to the sentences imposed herein, Mr. Agard shall pay the sum of EC$3,357.02 as restitution to the victim within 6 months, in default thereof, Mr. Agard shall serve a term of 6 months imprisonment. Such term of 6 months imprisonment shall run concurrent to any term of imprisonment that Mr. Agard is likely to serve under sentence of the court in the present proceedings. Forfeiture and Destruction

[44]The court has discerned the following mitigating factors present in the instant case. Mr. Agard appeared to have voluntarily surrendered the firearm to the police authorities. The firearm in question was recovered by the police and is not at large. The firearm in question was not modified in any way to make it more dangerous. There is no evidence that Mr. Agard had possession of any ammunition despite the police having recovered a magazine. Furthermore, in light of Mr. Husbands’ report, it is uncertain whether the firearm in question is capable of discharging any projectiles. The firearm was not discharged during the commission of the offences of robbery. The firearm was not used to cause injury persons or damage to property. Personal Mitigation

[56]The court’s order is therefore as follows: – The defendant Desmond Agard is hereby sentenced to a term of 2 years imprisonment on each count in the indictment to run concurrently. The sentences of 2 years imprisonment herein shall not take effect unless, during a period specified in this order, being not less than one year from the date of the order, being 28th March 2022, Desmond Agard commits in Anguilla another offence punishable with imprisonment whereupon the sentences of 2 years imprisonment shall take effect immediately and such term of imprisonment imposed herein shall run consecutive to any term of imprisonment imposed for the latter offending. The defendant Desmond Agard is ordered to pay the sum of EC$3,357.02 as restitution to the victim within six (6) months, in default 6 months imprisonment. The said period of 6 months imprisonment shall run concurrent with any other term of imprisonment that Desmond Agard is liable to serve under judgment of the court in the present proceedings. The Model GT 28 Tanfoglio 8 mm semiautomatic gas gun shall be forfeited by the Royal Anguilla Police Force and be destroyed forthwith. Shawn Innocent High Court Judge By the Court Registrar

[45]The personal mitigation taken into consideration by the court with respect to the present offence remains the same as that canvassed in relation to the offence of robbery.

[47]The court has already determined that Mr. Agard is entitled to full credit for his guilty plea by way of reduction from the notional term, a period equivalent to 1/3 of the notional sentence. Therefore, the resulting sentence will be 2 years imprisonment. Totality

[48]The court is of the considered view, that having regard to all the circumstances of Mr. Agard’s offending, that in sentencing Mr. Agard for more than one offence, the sentence imposed reflects the totality of Mr. Agard’s offending and is just and proportionate. Time Spent on Remand

[49]Mr. Agard has been on remand from 15th March 2021 awaiting sentence. Therefore, Mr. Agard has spent a period of 15 days on remand. Nevertheless, Mr. Agard has been on bail throughout. Therefore, the court does not consider it to be appropriate to grant any discount from the notional term on account of time spent by Mr. Agard on remand awaiting sentence.

[51]The court has taken into account the fact that the respective offences are all of a similar nature and involved the same victim. In addition, the offences occurred within a relatively short period of time. Therefore, the sentences imposed with respect to each offence shall run concurrently. Suspended Sentence

[53]In this regard, the court has considered the likelihood of the imposition of a suspended sentence. In applying its discretion on the question of whether to impose a suspended sentence, the court has taken into account Mr. Agard’s age and his personal mitigation, and has formed the view that any progress that Mr. Agard has made since the date of the commission of the subject offences is likely to be derailed by the imposition of an immediate custodial sentence. Mr. Agard does not present a risk to danger to the public. Therefore, the court has determined that in all the circumstances of the present case, it would be appropriate to suspend the sentences herein imposed. Compensation

[55]Section 46 of the Firearms Act empowers the court before which any person is convicted of an offence under the Firearms Act, to make such order as to the forfeiture or disposal of any firearm or ammunition found in his possession as the court thinks fit. In the circumstances, the court also orders the forfeiture and destruction of the pistol in question. Order

[38]Notwithstanding that the firearm may have been an imitation firearm, the circumstances of the case reveal that Mr. Agard brandished the firearm to achieve his objective by intimidating his victims or at the very least putting them in fear. Therefore, the court has determined that the offending conduct falls within Level B with respect to seriousness. Starting Point

[39]In the premises, the starting point sentence according to the grid contained in the Sentencing Guidelines places the starting point at 50% of the statutory penalty and within a range of 35% to 65%.