The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE yesterday dismissed a man’s request for early release from prison in an application that disputed the lawfulness of his four-year mandatory minimum sentence for firearm and ammunition possession.

Acting Chief Justice Stephen Isaacs had been asked by 33-year-old Wendell Smith to not only declare that his constitutional rights under Articles 17, 19 and 20 were breached but that the landmark decision of Barrington Robinson v the Commissioner of Police made his punishment for his crimes committed in March 2013 unconstitutional.

The judge, however, did not grant the relief sought as he determined that “this application amounts to an appeal of the decision of the Court of Appeal, that court having already considered the constitutionality of the minimum sentences imposed.”

On March 25, 2013, Smith pleaded guilty to possession of an unlicensed firearm, possession of ammunition and possession of dangerous drugs with intent to supply.

During the course of his guilty plea to having a handgun, live rounds of ammunition and 46 pounds of marijuana, Smith admitted that the $2,780 seized was proceeds of the sale of drugs.

Smith was sentenced to four years imprisonment on each count to run concurrently and was fined $1,000 concerning the drugs to be paid by the end of the sentence. If he failed to pay, he would spend an additional six months at the Department of Correctional Services.

Smith contested the sentences to the appellate court on the basis that they were unduly severe and disproportionate.

While the appellate court agreed that the four-year sentence for the drugs was not proportionate and substituted it with a sentence of two years and six months, the court affirmed the sentences for the remaining convictions believing them to be appropriate.

Acting Chief Justice Isaacs yesterday noted that the appellate court delivered that decision “exactly one year prior to the assent of the Abolition of Minimum Sentences Act.”

“The issue of the sentences was raised at the Court of Appeal and the sentences for possession of an unlicensed firearm and ammunition was upheld,” the judge said.

“The Court of Appeal in Prinston P Rolle v Regina upheld a sentence of five years for possession of an unlicensed firearm and ammunition. That sentence was handed down on April 13, 2014, which is after the passage into law of the Abolition of Minimum Sentence Act. It therefore follows that a sentence of four years for those very offences is not unconstitutional. I am fortified in this view as the sentence for possession of dangerous drugs with intent to supply was reduced by the Court of Appeal even though the law presented a minimum sentence of four years.”

The judge then referred to a statement made by past appellate court president Justice (Dame) Joan Sawyer in Terry Delancy v the Attorney General before dismissing Smith’s application.

“Under the Constitution of the Bahamas, the court system is an hierarchical one with the Privy Council at the apex, this court next, the Supreme (High) Court next, magisterial courts and other tribunals next and so on. Decisions of higher courts are normally binding on all lower courts. It therefore follows that a decision of a lower court, while it will be accorded every respect by a higher court if it is not overruled, cannot bind a higher court or even a judicial officer of the same rank. To apply to the Supreme Court for redress against this court’s decision, therefore, was seeking to bind this court by a lower court’s judgment or to indirectly appeal to a lower court from this court’s decision.”

“It certainly amounts to an abuse of process,” the acting chief justice noted.

Ernie Wallace argued Smith’s application while Viola Barnett responded for the Crown.