A former Bermuda Regiment sergeant has been told his sentence should have been reduced and suspended — had it not already been served.

Jason DeCouto had admitted having two mini-Ruger magazines at his Paget home on April 6, 2015, but claimed that he had accidentally brought them home during his days in the service and forgot about them.

While Magistrate Archibald Warner sentenced DeCouto to 30 days in prison for the offence, he launched an appeal arguing the magistrate had not indicated that he did not accept the defendant’s version of events until he was passing sentence.

In a judgment dated May 4, Puisne Judge Stephen Hellman found in favour of DeCouto, stating: “As the prosecution in the present case had expressly accepted the facts put forward by the defence in mitigation, in my judgment fairness required that before passing sentence the learned magistrate should have indicated to the defence that he did not accept them.

“The defence could then have applied to call the appellant so that the court had the opportunity of hearing him give evidence as to the mitigating facts. Absent of such indication, the learned magistrate should have passed sentence based on the mitigating facts advanced by the defence.”

Mr Justice Hellman also noted the case of Lori DuBell, who in 2009 was caught accidentally bringing a magazine into the island and sentenced to ten days in prison — time she had already served. That sentence was later dropped in favour of an absolute discharge following an appeal.

While the judge said the cases were not completely analogous as DeCouto had acted negligently in failing to return the magazines to the Regiment, he said the defendants in both cases had acted without malicious intent. “By the time of his arrest and charge the most culpable aspect of his conduct, namely his initial failure to return the magazines before he forgot about them, was very stale,” he wrote.

“I also take into account his timely guilty plea and previous good character, and the fact that the prosecution does not seek an immediate custodial sentence. There is no risk that he will reoffend, and the length of any custodial sentence which was reasonably proportionate to the gravity of the offence would be unlikely to have a deterrent effect upon anyone seeking to use a firearm for criminal purposes.”

Mr Justice Hellman declined to replace the sentence with an absolute discharge, stating that the offence was serious enough to warrant an immediate custodial sentence, but added: “Had it not already been served, I should have ordered its suspension.

“I should also have quashed the sentence of 30 days, which was based on the learned magistrate rejecting the appellant’s version of the facts, and substituted one of ten days.”

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