By NICO SCAVELLA
Tribune Staff Reporter
A CHILD’s “numerous and severe disabilities” were the primary reasons his mother’s four-year prison sentence for firearm possession has been quashed, the Court of Appeal has ruled.
Former Court of Appeal President Dame Anita Allen, along with fellow Justices Jon Isaacs and Roy Jones, set aside Tivona Martin-Artillus’ custodial sentence in light of her son’s myriad of “serious physical ailments”, which only she is best suited to care for.
However, it was for that reason the appellate judges ordered that Martin-Artillus’ successful appeal is barred from being used as a legal authority “in any and every case going forward”.
The appellate judges said legal authorities do suggest the rarity of the interests of an offender’s child prevailing against society’s “plain interest in the proper enforcement of the criminal law”.
However, the appellate judges said after considering the child’s severe medical conditions, they though the present case to be “one of the extremely rare cases where the interests of the offender’s child can and should be taken into account.”
According to the ruling, both Martin-Artillus and her husband were previously convicted of possession of a firearm found in a jewellery box in the apartment they shared in their matrimonial home.
Martin-Artillus was consequently sentenced to four years in prison and fined $10,000. Her husband, whose appeal had already been disposed of by the appellate court (though differently constituted), had his four-year sentence reduced to three years, and is presently serving that time.
However, Martin-Artillus appealed against the sentence and fine imposed on her.
Martin-Artillus and her husband are the parents of two children, one of whom was four-years-old at the time of the offence, is blind and suffers from “a number of other serious physical ailments,” according to the ruling.
A medical report from Dr Cherilyn Hanna-Mahase, deputy chief of medical staff at the Princess Margaret Hospital dated May 2, 2016, said the child was born prematurely at 26 weeks and required hospitalisation from his birth to September 13, 2011.
The child’s health is also complicated by “multiple chronic conditions,” the ruling said, namely hydrocephalus with shunt placement; porencephalic cyst; chronic lung disease; developmental delay; left hemiparesis; severe optic atrophy with blindness.
According to the report, the child requires “long term personal care and multiple specialist follow-up visits.”
Additionally, the appellate ruling also noted that a Social Services report indicated that Martin-Artillus was known to the Department of Social Services, and that her son was in need of constant medical attention and care by his family, particularly his mother.
The Social Services report concluded by noting that as a result of the child’s severe disability, the only person capable of adequately taking care of him is his mother.
Martin-Artillus’ attorneys Carlson Shurland and Terrel Butler, had previously urged the appellate court to allow their client’s appeal, and to impose a suspended sentence and a reduced fine with payment deferred to December 31, 2016.
Alternatively, Mr Shurland and Ms Butler urged the court not to impose a custodial sentence, but to put their client on probation by virtue of the extenuating circumstances affected her case, namely the interests of her children and the fact that she was a “battered woman” who, although she had knowledge of the firearm, had no control and could not possess it.
Assistant Deputy Director of Public Prosecutions Vernal Collie, who was assisted by Rosalee Ferguson, was not opposed to the appeal and the reduction of the sentence, but did not support the defence’s submissions concerning the extent of that reduction.
Mr Collie submitted that in his view, a two-year sentence was appropriate.
It was also noted that, like her husband, Martin-Artillus’ only mitigating circumstance was her “good character” in that she had no previous convictions. Moreover, the ruling said both she and her husband required a trial during which “serious aspersions were cast on the character of the police in their conduct of the case.”
The appellate judges stated in order to interfere with the sentence imposed by the magistrate, they must be satisfied the sentence imposed was “unduly severe” in the sense it was “well beyond the realm of reasonableness.”
Martin-Artillus’ attorneys reminded the appellate court of its power on appeal to “do what the magistrate’s court could have done” in sentencing their client.
In response to Mr Shurland’s and Ms Butler’s submissions, the appellate judges firstly stated a suspended sentence is “not a sentence known to the law of the Bahamas.”
And regarding Mr Shurland’s suggestion his client be given probation, the appellate judges said the power to put an offender on probation is given to the court by section 124 of the Penal Code, and is exercisable “where a person is convicted of any crime punishable with imprisonment, and where the court is of the opinion that, having regard to the youth, character, or antecedents of the offender, or to the trivial nature of the offense, or to any extenuating circumstances under which the offense was committed, it is expedient to do so.”
Additionally, with the exception of Martin-Artillus’ good character, the appellate judges said no other condition required for the exercise of discretion under Section 124, existed in the present case. And concerning her condition as a woman suffered from “battered woman’s syndrome,” the appellate judges said they didn’t understand “how it could be an extenuating circumstance relating to the commission of the offence.”
The judges further noted the offence in question is “not trivial,” but is a serious punishable one on conviction to four to seven year’s imprisonment or to a “substantial fine.”
However, after considering the extent of the child’s medical issues as laid out in the medical report, the appellate judges said the present case is one of the “extremely rare cases” where the interests of the offender’s child “can and should be taken into account.”
“We cannot emphasise enough the exceptional and unique circumstances of the present case and consider it to be prudent to re-state that the present case is not a matter to be used as an authority in any and every case going forward,” the appellate judges said in ruling posted on the Court of Appeal’s website on Monday.
“In the premises, it was for this reason and this reason alone, that the appeal was allowed, the sentence of the magistrate was set aside and the appellant ordered to pay the sum of $10,000. . .
“In default of payment, the appellant to serve three years at the Department of Corrections.”