THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Ms. Erica L.P. Edwards, Senior Crown Counsel, Attorney General’s Chambers of counsel for the Crown
Mr. Devin Hodge of Counsel for the Defendant
2021: March 17; 29.
JUDGMENT ON SENTENCING
 INNOCENT, J.: Mr. Erlvan Connor (‘Mr. Connor’), the defendant in these proceedings, was indicted on 5th March 2021 for the offences of possession of a firearm and possession of ammunition in relation to events that occurred on the night of 25th February 2017.
 The agreed facts may be summarised as follows. On the night of 25th February 2017 police officers stopped a motor car being driven by Mr. Connor. The police officers asked Mr. Connor to exit the motor car and he complied. The police officers asked Mr. Connor whether he was in possession of any illegal items. He replied in the negative and asked the police officers to search the motor car.
 The police requested a search of Mr. Connor’s person and he declined. After adamantly refusing to permit the police officers to search his person, Mr. Connor then attempted to run away. However, he was detained by one of the police officers. A struggle ensued between the police officers and Mr. Connor. During the struggle, Mr. Connor was observed to have concealed in the right front waist band of his pants a black firearm. The firearm was retrieved by one of the police officers. Mr. Connor was arrested and taken into custody.
 The firearm retrieved from Mr. Connor was a black Glock 42 .380 caliber handgun. The handgun contained a magazine that housed seven (7) rounds of live ammunition. When cautioned, Mr. Connor told the officers words to the effect that “that’s for my protection, you know them man want to kill me”.
 Mr. Connor was not the holder of a firearm user’s permit. On 27th February 2017, Mr. Connor was charged for the offences of possession of a firearm and possession of ammunition respectively. He was brought before the Magistrate’s Court on 27th February 2017 and remanded to custody. Mr. Connor has been remanded in custody up to the date of sentencing.
Arraignment and Plea
 On 17th March 2021, Mr. Connor appeared before the High Court and entered pleas of guilty to both counts on the indictment. Mr. Connor was committed to stand trial in the High Court on 30th September 2020.
Approach to Sentencing
 In sentencing Mr. Connor, the court has applied the Sentencing Guideline for Firearm Offences within the ECSC (the ‘Guidelines’) as provided for by the Eastern Caribbean Supreme Court (Sentencing Guidelines) Rules, 2019.
 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. Connor’s culpability in the commission of the offence and the consequences of the offence as referenced by the harm caused in the commission of the offence. 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. Connor’s personal mitigation.
 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. Connor’s plea of guilty, time spent on remand and delay.
 The court assessed the consequences by reference to the harm done at Category 3 – lesser. The court assessed the seriousness of the offence at level A – higher. The court noted that none of the factors outlined at Category 1 and Category 2 were present in the instant case.
 In assessing seriousness the court has placed the offence at Level A. The firearm in question contained more than two rounds of ammunition. In addition, the firearm was carried in a public place.
 Therefore, the court determined that the appropriate starting point sentence would fall at 50% of the maximum statutory penalty and within a range of 35% to 65% of the maximum statutory penalty. Therefore, the starting point sentence adopted by the court is 7 years imprisonment with a range of 5 years to 9 years imprisonment.
 The court having determined the starting point sentence considered the aggravating and mitigating factors present in the case.
 The court was able to discern the following aggravating factors in the present case. There was notably an attempt to conceal the firearm and to evade the law enforcement officials. Mr. Connor sought to evade detection by running away and had to be pursued and restrained by the police.
 The court took into consideration the following mitigating factors in the commission of the offence. When cautioned, Mr. Connor seemingly admitted to the police authorities that he was in possession of the firearm that was recovered. The court also took into account the fact that the firearm was not used to cause injury or damage to property.
 The court was unable to make any assessment in relation to matters of personal mitigation in relation to Mr. Connor the court not having had the benefit of a Pre-Sentence Report (‘PSR’).
 The Crown, in their submissions made mention of Mr. Connor having previous convictions, one of which involved an offence for possession of ammunition in 2005. It appears that Mr. Connor has had a long and illustrious criminal career dating as far back as the year 2000. He has been convicted for offences of theft, larceny, breaking and entering and possession of controlled drugs. He served terms of imprisonment in relation to all of these offences. However, these convictions form part of Mr. Connor’s remote and distant past, and may properly be considered as spent. Therefore, the court did not treat these previous convictions as relevant to the present sentencing exercise for the purpose of assessing the aggravating factors personal to Mr. Connor.
 In the circumstances, the court finds that in the present case the aggravating factors are far outweighed by the mitigating factors. Therefore, the court will adjust the starting point sentence of 7 years imprisonment upward by 1 year to take account of the aggravating factors. This figure of 8 years imprisonment reflects the adjustment made to the starting point sentence of 7 years imprisonment to take account of the aggravating and mitigating factors present in the case and matters related to the mitigating and aggravating factors personal to Mr. Connor.
Credit for Guilty Plea
 Mr. Connor is entitled to credit for his guilty pleas. Typically, Mr. Connor 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.
 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.
 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.
 Therefore, it appears that Mr. Connor could have availed himself of this procedure. In the circumstances, it cannot properly be said that the pleas were entered at the earliest or first available opportunity. Be that as it may, Mr. Devin Hodge, counsel for Mr. Hodge alerted the court to certain salient facts that are relevant to the sentencing exercise.
 Mr. Connor having been charged with the firearm offences on 27th February 2017 was subsequently charged with the offence of murder on 16th June 2017; this was subsequent to the preliminary inquiry in relation to the offences under the Firearms Act. On 19th July 2018, the Crown applied to have the two matters proceed jointly. The two sets of charges appeared to be related. On 25th February 2020, the Crown withdrew the charge of murder against Mr. Connor. Mr. Connor was then committed for trial on the lesser firearm related charges.
 In these circumstances, Mr. Hodge, counsel appearing for Mr. Connor submitted that Mr. Connor was only able to enter a plea on his initial arraignment on the present indictment. Given the procedure employed by the Crown at the preliminary inquiry at the Magistrate’s Court, the court found Mr. Connor’s explanation for failing to enter a plea at an earlier stage of the proceedings acceptable.
 In the premises, Mr. Connor will be given full credit for his guilty plea. Mr. Connor is therefore entitled to a full discount of 1/3 from the notional sentence. The discount of 1/3 from the notional sentence equates a period of 2 years 7 months imprisonment. Therefore, the sentence after the discount for the guilty plea would be 5 years and 5 months.
Credit for time spent on remand
 Mr. Connor has spent a period of 1489 days on remand, which equates a period of approximately 4 years. Mr. Connor will be credited for all this time spent on remand. The remainder of the term of imprisonment left to be served by way of sentence after credit is given for time spent on remand would be a period of 1 year and 5 months imprisonment.
 During the course of the sentencing hearing, the question arose regarding whether Mr. Hodge would be entitled to any further discount in respect of any delay in the conduct of the proceedings which was not attributable to any fault on the part of Mr. Connor, in addition to any deduction for time spent on remand.
 The court had the benefit of written submissions from both sides in respect of this issue. It appears that the period of delay was not attributable to any fault on the part of Mr. Connor. The Crown has conceded that this is indeed the case. The reasons for the delay were well chronicled in the supplemental written submissions of both sides, and there did not appear to be any factual conflict in respect of the reasons for the delay.
 Both counsel appearing for the Crown and counsel appearing for Mr. Connor are agreed that separate and apart from credit given to Mr. Connor in respect of time spent on remand, he should also be given credit for the inordinate delay in bringing the matter before the High Court.
 It is well settled that a defendant has a constitutional right to a fair hearing within a reasonable time, before a fair and impartial tribunal established by law. In an appropriate case, the court ought to address the question of delay as it relates to sentencing in a criminal trial. Delay in a criminal case which constitutes a breach of a defendant’s constitutional right to a fair hearing within a reasonable time will always be a factor to be considered in deciding upon the appropriate disposal.
 The factors relevant to the cause of the delay ought to be assessed in determining whether there has been any breach of a defendant’s constitutional right. Where a breach of this constitutional right has been established, the sentencing court should consider whether there should be any effect on the sentence that would have been passed if there had been no delay.
 In the case of Violet Hodge v The Commissioner of Police the Court of Appeal of the Eastern Caribbean Supreme Court (‘Court of Appeal’) dealt with the question of the relevance of delay in criminal proceedings to sentencing. Baptiste JA, delivering the judgment of the court said:
“The principles regarding delay can be summarized as follows. In determining sentence, there is a need to have regard to any failure to proceed with a case with due expedition. Excessive delay can affect the question of the justice of the sentence. Delay in bringing an accused to justice is recognised as a mitigating factor that can be taken into account in sentencing and its effects can be recognised by a reduction in sentence. One has to examine the extent to which a defendant or appellant has been prejudiced by the delay per Lord Hope at paragraphs 53 and 54 of Mills v Her Majesty’s Advocate. “A judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly” per Lady Hallett in R v Kerrigan at paragraph 56. This is very much a residual general discretion to correct any perceived injustice. Delay is undoubtedly of relevance to the broad question of what a just sentence is when eventually and belatedly conviction occurs, per Vice President Hughes LJ in Attorney General’s Reference No. 79 of 2009. He emphasised that applications for reductions in sentence would be unusual.
With the guidance provided by the cases, this Court has to consider whether the magistrate erred in failing to make a specific allowance for delay in imposing sentence. There was ample material to support the assessment that the magistrate should have considered the issue of delay as a mitigating factor conducing to a reduction in sentence. The question of whether delay is excessive is really fact sensitive. The magistrate gave no reason for not factoring in delay as a mitigating factor. It is therefore open to this Court to exercise its discretion by assessing the facts and making a judgment as to what is required. There is no automatic right to a reduction in sentence on the ground of delay. As has been seen, the court possesses a residual discretion in the matter, per Mr. Justice King in R v Phillips et al:
“Discretion by definition requires a court to exercise an assessment of the facts and to make a judgment as to what is required”
There was undoubted delay for which the appellant was not responsible. There would be anxiety resulting from the prolongation of the proceedings. Delay related grounds may justify an adjustment to sentence; one of the grounds would be the anxiety resulting from prolongation of the proceedings per Lord Hope in Mills v HM Advocate.25 Reference has already been made to the appellant’s state of health. In the circumstances, the court in the exercise of its discretion considers that a one year reduction for delay would be fair. The sentence of six years is accordingly reduced to five years.”
 The court having assessed the reasons for the delay and the factors that contributed to the delay, in the exercise of its discretion, is of the view that a reduction of 1 year imprisonment is appropriate in the present case.
 It appears that given the sentence that the court is minded to impose, the court is of the considered view that taking into account the deduction for time spent on remand and delay, it would appear that Mr. Connor has already served out his sentence. Therefore, the sentence of the court is that Mr. Connor be sentenced to time served. Accordingly, Mr. Connor will not be required to serve any further period of incarceration and is to be released from custody immediately.
High Court Judge
By the Court