Nightclub cocaine sentence reviewed

Supplying cocaine in a night club should have been punished with a sentence of two years imprisonment, the Cayman Islands Court of Appeal said in its last case of the summer session.

The Crown was appealing the sentences of three young men who pleaded guilty to supplying cocaine to female undercover officers during Police Operation Excometh in April 2004. The Grand Court sentenced two of the men to 90 days imprisonment; the third man, who had spent six months in custody, was given one year probation (Caymanian Compass, 22 February 2007).

Justice Edward Zacca, president of the Court of Appeal, announced the decision after hearing arguments from Crown Counsel Elisabeth Lees and three defence attorneys. Justice Zacca said the sentences were unduly lenient.

However, he continued, the men’s trial had come three years after the offence. Then the appeal came a year and a half after the men were sentenced. The court considered the delay unreasonable.

‘Is it fair to have them return to prison?’ he asked. Having regard to all the circumstances, the sentence for each should have been two years, he said. But, although the sentence was wrong in principle, ‘we do not propose interfering.’

Ms Lees introduced the appeal by noting guideline sentences: up to eight years for trafficking in amounts less than four grams. ‘There must be an element of deterrence,’ she said.

She quoted from a 1985 judgment of the late Sir John Summerfield, then Chief Justice: ‘Sale goes to the root of drug abuse…Leniency is out of place for persons who deal, even when the quantity is small.’

By way of background, Ms Lees said the Grand Court had rejected the argument of entrapment — that the men had been induced to commit an offence they otherwise would not have committed. Instead, the judge said, while the female officers provided some motivation, he was satisfied the men would have sold cocaine to any other similarly clad attractive females who engaged them in conversation.

After that ruling, the three pleaded guilty. Each was in his early 20s at the time of the offence. The sentencing judge said each had trafficked in the smallest of amounts for the smallest of sums, ranging from .151 gram to .596 gram for $50.

Attorney Phillip McGhee said his client had been genuinely attracted to one of the officers. He had to leave the premises to go and get the cocaine for her.

Perhaps in the judge’s mind that made him a social trafficker, not a commercial trafficker, Mr. McGhee suggested. He pointed out that this young man sold the officer cocaine twice, but on the third occasion refused because by that time he realised she was not sexually interested in him.

Attorney John Furniss said that for his client, like the previous young man, the term of imprisonment had been a short, sharp shock because neither had any previous conviction. Since coming out of prison they had rebuilt their lives and were in full employment. He urged the court to say it was not necessary for them to be returned to custody.

Attorney Anthony Akiwumi said his client, unlike the others, was an addict with previous convictions when the offence occurred. His sentence of probation following six months imprisonment had been customised to help him overcome his addiction.

Justice Zacca agreed that all three men were at the bottom of the drug distribution chain. But, he added, they were still part of causing misery and ruining lives. ‘Whether it’s for partying or not, we know what cocaine can do to people,’ he commented.

In another exchange he remarked ‘The damage to the person getting the cocaine remains the same whether the supply was social or commercial.’

Justice Zacca heard the appeal with Justice Ian Forte and Justice Elliot Mottley.

Before retiring to consider their decision, the judges asked why the appeal had been delayed, since the men were sentenced in February 2007.

Ms Lees said the appeal was filed in time. Insofar as the delay affected these three men, the Crown could not dispute that it must be taken into account.

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