Gun law to face Court of Appeal test

As defence lawyers intensify calls for changes to Jamaica’s controversial firearms legislation, a well-known St James businessman who was sentenced to the 15-year mandatory minimum after being caught with his wife’s licensed firearm is set to challenge the constitutionality of the sentence before the Court of Appeal on October 26.

The 40-year-old businessman is contending, among other things, that the mandatory minimum sentence imposed on him infringed his protected rights under the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011.

Jason Barrett was sentenced by Justice Martin Gayle in the Western Regional Gun Court in March 2024 after pleading guilty to unauthorised possession of a firearm and ammunition.

Barrett, who was found with the firearm in front of a bar shortly after midnight in Westmoreland, was sentenced to 15 years for each offence, with the sentences to run concurrently. He is eligible for parole after serving 10 years.

However, Barrett, through his attorney-at-law Hugh Wildman, who was retained at the sentencing stage, immediately filed an appeal seeking to have the sentence set aside. Permission for the matter to be heard in the appellate court was granted last year.

His appeal challenges both the sentence and the judge’s interpretation of the Firearms (Prohibition, Restriction and Regulation) Act, 2022.

Barrett is contending that, notwithstanding the legislation, the judge had discretion to impose a sentence below the prescribed minimum, taking into account his clean criminal record, favourable social enquiry report and character references.

Constitutional protection

The appeal also argues that the sentence is disproportionate and infringes his constitutional protection against inhumane or degrading punishment.

Barrett was arrested after police personnel on patrol in the Little London area of Westmoreland observed a bulge around his waistband on January 22, 2023.

A search revealed a Smith & Wesson Springfield pistol with 16 rounds of 9mm ammunition.

The court heard that Barrett initially told the police he was a licensed firearm holder and said he would retrieve his licence from his vehicle.

After the licence could not be found, he was taken to his home, where he eventually told the police that the firearm belonged to his wife.

Wildman, in his plea in mitigation, pointed to Barrett’s positive antecedents, telling the court that the 40-year-old had lived “a life of productivity” and hard work.

He said Barrett, who is involved in the solar business and assists his father with a car-wash operation, had been a productive member of society and could serve as an example to other young men.

Wildman also submitted that his client believed he needed the firearm for protection while conducting business in Westmoreland.

He indicated that Westmoreland was considered a volatile area and that, as a businessman operating there, his client believed he needed a means of protecting himself.

Security concerns

The lawyer, however, acknowledged that Barrett’s decision was “a stupid thing to do”, but argued that it was understandable given the security concerns in the area.

Wildman said his client believed he could use the firearm because it was licensed to his wife.

He also pointed to the favourable evidence given by two character witnesses.

A retired mayor described Barrett as a humble and respected member of the community, while a retired police inspector described him as a quiet, hardworking and law-abiding citizen.

Both witnesses urged the court to show leniency.

Wildman had also argued that Section 45 of the Firearms Act did not tie the judge’s hands and that the court retained discretion via the Constitution to impose a sentence below the mandatory minimum where the circumstances of the case warranted it.

He told Justice Martin Gayle that the legislation should be interpreted in a way that preserves the court’s discretion, particularly where there are compelling mitigating circumstances.

Gayle took a different view.

The judge said the Firearms Act, when read together with Section 101 and the relevant Schedule referred to in Section 45, did not give him discretion to go below the prescribed 15-year minimum for Barrett’s offences.

Instead, he interpreted the legislation as giving him a choice between life imprisonment and the mandatory minimum of 15 years.

In considering the sentencing options, Gayle ultimately opted to impose 15 years’ imprisonment on each count, with the sentences to run concurrently. Barrett will become eligible for parole after serving 10 years.

Gayle acknowledged what he described as the “overwhelming” mitigating circumstances, including Barrett’s lack of previous convictions, his favourable social enquiry report, his marriage and the fact that he has a child.

Breach of trust

However, the judge identified the presence of the firearm and ammunition in a public space, Barrett’s initial claim that he was a licensed firearm holder and what he described as a breach of trust involving his wife’s firearm as aggravating factors.

The judge said deterrence, rehabilitation, public protection and punishment were among the principles he had to consider.

Barrett is challenging the sentence on six main grounds.

Among them, he argues that the trial judge erred in law by failing to appreciate that Section 45 of the Firearms Act does not preclude the court from exercising discretion to impose a sentence below the mandatory minimum where the circumstances of the case warrant it.

He further argues that the sentence infringed his protected rights under the Charter of Fundamental Rights and Freedoms, including the protection against torture and inhumane or degrading punishment or treatment.

Barrett also contends that the judge failed to properly consider his favourable antecedents, social enquiry report and the circumstances surrounding the offences.

Another ground of appeal challenges Gayle’s interpretation of the Privy Council’s decision in Tafari Morrison v The King [2023] UKPC 14. Barrett argues that the judge misconstrued the decision by concluding that it sanctioned the imposition of the 15-year mandatory minimum in his case.

He further argues that a proper reading of the Privy Council decision showed that it had approved decisions from other Commonwealth jurisdictions recognising that mandatory minimum sentences could violate constitutional protections against torture and inhumane or degrading punishment or treatment.

Barrett’s final ground is that, in all the circumstances of the case, the sentence imposed on him was disproportionate.

tanesha.mundle@gleanerjm.com