Judge explains drug sentencing factors

Topaz General has been sentenced to four years for possessing a kilo of cocaine with intent to supply.

The sentence was reduced from 15 years because Justice Alex Henderson said he was taking into account her early guilty plea, her cooperation with authorities and her age at the time of the offence – 19.

He accepted Defence Attorney Phillip McGhee’s submission that the early guilty plea should merit a one-third discount instead of one-fourth.

General had admitted bringing the cocaine to Grand Cayman from Cayman Brac in December 2003. She pleaded guilty in May 2004 and was sentenced in Summary Court to five years imprisonment in June 2006.

Mr. McGhee said the magistrate reached that sentence by starting at 12 years for the offence and deducting three years (25 per cent) for the guilty plea because there was an element of being caught red-handed. The magistrate gave a further discount of four years (33 per cent) because General took part in a sting operation that led to the arrest of the man she said had recruited her to carry the drug.

The attorney disagreed with the discount given for the guilty plea. He cited UK sentencing guidelines that say the earlier a guilty plea is made the more favourably it is viewed.

Justice Henderson said one-third discount has been given in cases where there was doubt of conviction.

Mr. McGhee said the rationale for the discount was to encourage the pleas of offenders who are guilty. Such a plea entered at the earliest possibility warrants the one-third discount, he said. If a defendant waits until just before trial, the discount may lessen to 10 per cent. It is the timing that is the rationale, not the element of being caught red-handed.

In his ruling, Justice Henderson said it seemed to him there was some merit in the UK system and he was persuaded General should get the one-third discount for her early plea.

However, his opinion was that 12 years was too low for the starting point of the sentence for 35 ounces of cocaine. He put it at 15 years and then deducted five years for the plea.

He deducted a further one-third because of General’s significant co-operation. Along with participation in the sting, she had testified in court.

‘It is not overly dramatic to say she has put her life at risk,’ Justice Henderson said. ‘For that there should be a significant discount – one which not only recognises her real sacrifice in cooperating with police, but one which also stands as an inducement for future defendants to cooperate. I accept a discount of one-third is appropriate for these Islands. Again I will deduct five from 15.’

The personal mitigation he took into account concerned General’s age at the time of her offence.

Mr. McGhee referred to a letter she had written to the sentencing magistrate saying she did not realise the consequences of her actions. She had no previous convictions. She was in financial need and someone promised her $1,000 to carry the cocaine.

The attorney indicated that General knew she was risking a prison sentence, but did not appreciate the severity of it.

Justice Henderson said he was surprised that the magistrate’s reasons for sentence did not mention General’s age. The young woman had said she had no previous knowledge of the drug industry and no proper knowledge of the consequences of her involvement.

‘It seems to me there is likely to be some truth in that,’ he said. ‘I think her age has to be considered.’ He therefore gave her a further one year discount.

Finally, he directed that she be given credit for the time in custody prior to her plea.

Justice Henderson rejected one ground of appeal argued by Mr. McGhee, who submitted that the way parole eligibility is now calculated should be taken into account.

Convicted persons used to be eligible for parole after serving one-third of their sentence. In October 2005, the law was changed and a convicted person must now serve five-ninths.

Mr. McGhee said the difference in General’s case was well over a year. If she had received the five-year sentence when she pleaded guilty, she would have been eligible after 608 days. Under the five-ninths rule, she would have to serve 1,013 days before being considered for parole.

Justice Henderson said this issue had come up before. As a matter of practice, he did not sit in court and calculate what a defendant was likely to serve; he thought in terms of the sentence itself. If there is any assumption about a sentence, the assumption is that the convicted person serves the entirety of it.

The judge said the courts had to be concerned with carrying out the intention of the legislature. In changing parole eligibility, the intention of the legislature must necessarily have been that convicted people spend a longer time in custody.

Mr. McGhee said the delay in General’s sentencing had come about because there was a delay in listing the trial of her co-defendants. It was no fault of hers.

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