Americans in photos lose cocaine appeal

Three Americans convicted of possessing 4.5 kilos of cocaine with intent to supply had their sentences of 15 and 10 years affirmed during the spring session of the Court of Appeal.

Photographs that Thomas Watson, Anthony Watson and Cindy Jo Hair took of themselves with the cocaine figured in appeal arguments, as they did in the Summary Court conviction and Grand Court hearing (Caymanian Compass, 13 October 2008, 11 July 2007).

Attorney Margeta Facey-Clarke argued that the 15-yeatr sentences of brothers Thomas and Anthony were manifestly excessive because they were based on the weight of the cocaine. She pointed out that the men did not import the cocaine; they had found it on the beach and therefore were not responsible for the weight. They pleaded guilty to simple possession but the Crown would not accept that plea.

Ms Facey-Clarke asked the court to consider the photos in evidence. Taking these photos of themselves with drugs and money was not the normal behaviour of drug dealers, she asserted. She said Thomas and Anthony were not professional or hard-core dealers.

Justice Abdullah Conteh said the seriousness of the charge was the intent to supply, regardless of the quantity. Justice Ian Forte pointed to other evidence that showed intent to supply. Court president Sir John Chadwick asked about the paraphernalia for preparing crack cocaine – Did they find that on the beach also?

The attorney said one of the men had been experimenting.

‘The appeal court is not in the business of tinkering,’ Sir John said. ‘A sentence must be way out of line.’

Later he observed, ‘This is not an impressionistic exercise in which you ask the Court of Appeal to say what sentence they might have imposed.’ In this case, the sentencing magistrate had analysed all factors very carefully, he indicated, noting that the maximum for a first offence is 20 years.

Attorney John Furniss argued on behalf of Cindy, who had come to visit Thomas, her common law husband. Thomas and Anthony were helping to rebuild a Seven Mile Beach condominium complex after Hurricane Ivan, he explained. The men found the cocaine in October 2005. Police came to their living quarters on 18 October; Cindy was scheduled to leave 20 October.

Cindy was seen in two of the photos. ‘She received 10 years basically for her encouragement,’ Mr. Furniss said, ‘which the magistrate found from her holding up the cocaine and the smile as if she was happy to be holding it.’

The magistrate found Cindy guilty of possession with intent to supply. ‘Certainly the photos showed possession, but the question was did she have control?’ Mr. Furniss said.

Sir John said the conviction was on the basis of enabling, which was why Cindy got one-third less than the men.

He asked what someone in Cindy’s position could do. Plainly she could move to another apartment. She could take the cocaine to a police station. Or — ‘She could shop her boyfriend. In her relationship, that’s pretty drastic. The sensible thing was to get on a plane and get back to the US. There is nothing to suggest that she could not have brought her flight forward. She chose to stay,’ Sir John pointed out.

After deliberating privately, the judges announced they could not say that the men’s sentences of 15 years were manifestly harsh or wrong in principle.

Cindy’s case was more difficult. Mr. Furniss and Crown Counsel Elisabeth Lees had discussed another case of a girlfriend becoming involved in her boyfriend’s ganja. Her discount had been 42 per cent of the boyfriend’s sentence, but the maximum for a ganja first offence is seven years. It was impossible to say that Cindy’s one-third discount was outside a reasonable range.

Other cases the court dealt with during this session included an appeal by Todd Omar Bowen against the 10-year sentence he received after conviction for possession of an unlicensed firearm.

The court pointed out that a recent amendment to the Firearms Law was not to give a judge an unfettered discretion to impose less than the mandatory 10 years whenever it thinks fit. A judge may only impose a lesser sentence he is of the opinion that there are exceptional circumstances relating to the offence or the offender that justify a lower sentence.

In Bowen’s case, neither his age nor the fact that he had a job was an exceptional circumstance.

The Grand Court sentencing judge took the view that Bowen’s offence was not the most serious. The Court of Appeal pointed out that the most serious cases may attract a sentence of up to 20 years.

Attorney Clyde Allen pointed to what the trial judge had said about the gun – that it could not be fired unless a certain mechanism was manually manipulated.

‘Would a victim know that?’ Justice Conteh asked.

Sir John said this case was about a young man with a bad record who had a gun that was not efficient but was capable of being used. ‘For better or worse, that’s the situation the legislature wants to discourage.’

Bowen did not appeal his conviction.

The final appeal of the session was on behalf of John Adam McIntyre, the former education officer at Northward Prison. He was sentenced to 12 months in prison after being found guilty of eight counts of theft totalling less than $3,200 from inmates who had signed up for correspondence courses (Compass, 14 April 2008).

The Court of Appeal reserved judgment and extended McIntyre’s bail. The judges indicated they would reach a decision as soon as they could and it would most likely be sent to the Chief Justice to deliver.