Defence Attorney Nicholas Dixie gave notice of appeal this week after his client received a sentence of seven years for possession with intent to supply the designer drug ‘ecstasy’.
The defendant, Andries van Tongeren, had maintained he did not know that the packages of ganja he was transporting also contained 1,580 ecstasy tablets.
However, he pleaded guilty on the basis that he had to accept responsibility for the ecstasy because it was part of the drug shipment he did know about.
The drugs were discovered after the sailing vessel Bricklayer went aground on the northwest side of Little Cayman in November 2004.
In setting out the facts, Crown Counsel Andre Mon Desir said officers from the various enforcement agencies formed a team to assess the situation and try to prevent environmental damage. It was upon inspection of the vessel’s fuel tanks that a Department of Environment officer discovered packages of ganja.
The four men on board were questioned about it. The captain and two crew denied any knowledge. Van Tongeren admitted that he had been hired to take the shipment of ganja from Jamaica to Mexico.
This defendant also gave a statement in which he said the other men on board did not know about the ganja. Those three subsequently had charges against them withdrawn (Caymanian Compass, 22 July).
Mr. Mon Desir said 172 packages were recovered from the vessel. Some were opened in the presence of the crew; one contained hashish paste and others contained vegetable matter resembling ganja.
In February, when all the packages were tested, the analyst found that they contained 102.54 kilos of ganja (225.5 pounds). It was at this time the ecstasy tablets were also found.
According to the Crown, the ganja had a street value of $1,010,634 when calculated at $5 per spliff. The ecstasy, which would sell at $30-$35 per tablet, was valued at $47,400.
In mitigation, Defence Attorney Nicholas Dixey set out the basis of van Tongeren’s plea: at no time did he believe or suspect that anything other than ‘grass’ was on board. He maintained that he had been ask to carry cocaine but had refused.
The person or persons who arranged for the drugs to be placed on the vessel made sure they were concealed when van Tongeren was not present.
If van Tongeren had known where the drugs were, they would have been jettisoned when the boat hit the reef, Mr. Dixey argued.
The defendant was distraught to learn that Ecstasy tablets were found in the packets. He didn’t know if associates in Jamaica had tricked him, whether police here had planted them or whether they were really there at all.
Van Tongeren had a ‘guilty mind’ for the ganja, but not for the Ecstasy, Mr. Dixey submitted. He had pleaded guilty after he came to trust that the police were honest in their investigation.
The basis for sentence, he continued, should be the weight of the pure drug, not street value. The 1,580 tablets would be expected to contain 158 grams of active ingredients. Mr. Dixey said this amount could be compared to 158 grams of cocaine.
As to van Tongeren’s personal circumstances, he was suffering from several health problems and was afraid he was going to die in prison, Mr. Dixey told the court. The defendant never intended to bring any drugs to Cayman at all.
In all the circumstances, he urged the court to say that four years would be the appropriate sentence.
Mr. Mon Desir responded to several points raised by Mr. Dixey. He indicated that the basis of sentence had to be the quantity of the drug.
The Crown counsel also called van Tongeren an intricate part of an international drug network. That he happened on Cayman shores by dint of misfortune was not a factor. He was taking illicit drugs from one place and supplying them somewhere else.
Magistrate Margaret Ramsay-Hale agreed it was no mitigation to say the drugs were not intended for Cayman. ‘We all in every country across the world struggle with the problem of drug addiction and the loss and destruction of our nation’s youth because of drugs,’ she observed.
‘It would be wrong to give you a lesser sentence because you hadn’t intended to poison my children when it was clear on the face of it you intended to poison other children,’ the magistrate said.
She also noted that van Tongeren had travelled from Europe to the West Indies for the purpose of participating in drug trafficking. She agreed with Mr. Dixey that there was some mitigation in the defendant’s intention to deal in Class B drugs rather than Class A.
But the most cogent mitigation came from his admissions and guilty pleas. As a result of his statement concerning the other defendants’ lack of knowledge, they had been released and allowed to go home. He had to be credited with relieving them of a longer stay and gong through a trial.
As to the basis of her sentence for Ecstasy, she said, ‘I look at the fact that 1,580 persons could have been supplied.’
When previous cases involving Ecstasy had been appealed, the Chief Justice said four to six years was appropriate for 24 tablets.
The quantity in the case before her would merit eight to 12 years, she indicated having noted earlier that the sentencing curve levels off as the quantities become greater.
Starting at 12 years for the extraordinary amount of pills brought by van Tongeren and considering all the mitigation raised so eloquently, she arrived at seven years.
She imposed three years concurrent for the ganja. Money found was ordered forfeit, along with the drugs.
What is Ecstacy?
The following information is from the website of the Partnership For a Drug-Free America. MDMA or Ecstasy (3-4-methylenedioxymethampheta-mine), is a synthetic drug with amphetamine-like and hallucinogenic properties. It is classified as a stimulant.
How is it used?
Taken in pill form, users sometimes take Ecstasy at “raves,” clubs and other parties to keep on dancing and for mood enhancement.
What are its short-term effects?
Users report that Ecstasy produces intensely pleasurable effects – including an enhanced sense of self-confidence and energy. Effects include feelings of peacefulness, acceptance and empathy. Users say they experience feelings of closeness with others and a desire to touch others. Other effects can include involuntary teeth clenching, a loss of inhibitions, transfixion on sights and sounds, nausea, blurred vision, chills and/or sweating. Increases in heart rate and blood pressure, as well as seizures, are also possible.
The stimulant effects of the drug enable users to dance for extended periods, which when combined with the hot crowded conditions usually found at raves, can lead to severe dehydration and hyperthermia or dramatic increases in body temperature. This can lead to muscle breakdown and kidney, liver and cardiovascular failure.
Cardiovascular failure has been reported in some of the Ecstasy-related fatalities. After-effects can include sleep problems, anxiety and depression.
What are its long-term effects?
Repeated use of Ecstasy ultimately may damage the cells that produce serotonin, which has an important role in the regulation of mood, appetite, pain, learning and memory. There already is research suggesting Ecstasy use can disrupt or interfere with memory.