In a recent Grand Court appeal session, Justice Alexander Henderson upheld sentences imposed by the Summary Court for selling cocaine to an undercover police officer.
Nigel Forbes, 36, of East End and Ian Jeffrey Bodden, 32, of Bodden Town had admitted their offences. Forbes received five years; Bodden was given four years.
Defence Attorney John Furniss said he was seeking guidance from the Grand Court because magistrates in the lower court have been using five years as a tariff for guilty pleas to ‘street level supply’ of small quantities of cocaine.
He said cases of selling cocaine to undercover officers would arise again, so a clarification of guidelines would be appreciated.
Mr. Furniss referred to remarks made last year in the Court of Appeal – the highest local court – in a case that involved the supply of cocaine to undercover officers in a night club. The Crown had appealed 90-day sentences and then-President Justice Edward Zacca said the correct sentence would have been two years.
But Justice Henderson said the facts in each case were different.
Mr. Furniss and Crown Counsel Kirsty-Ann Gunn agreed.
In Forbes’ case, he sold a quantity to an officer who went to his home; the next day the officer went back to Forbes’ home and purchased a second quantity. Mr. Furniss agreed that Forbes was selling the drug to support himself.
Bodden sold a quantity of crack to an undercover officer for $100 at a business premises in Bodden Town. A few days later, the officer went to Bodden’s home and purchased $50 worth.
Mr. Furniss said Bodden received four years because of the amount of time that had passed from the offence to the sentencing, and Bodden’s ‘efforts to get his life in order’.
The judge asked if the Court of Appeal had written out reasons for saying two years would have been appropriate for the case last year. He was told no. He then asked if Chief Justice Anthony Smellie has recently revised sentencing guidelines for drug offences. Again the answer was no.
In his decision to dismiss the appeals, Justice Henderson said the circumstances of Forbes and Bodden’s offences suggested the men were making their living through the commercial sale of cocaine.
The tariff is eight years, but a reduction is appropriate when the offender pleads guilty, he noted.
In 2008, the Court of Appeal said two years would have been appropriate in a case of supplying cocaine to an undercover officer. The reasons for that judgment were never put into writing, Justice Henderson pointed out. The only report Mr. Furniss was able to obtain was from The Caymanian Compass (31 August 2008).
The judge said he was sure that if the Court of Appeal intended to effect a significant change in sentencing cocaine traffickers, it likely would do so in writing.
Moreover, the cases were very different. In the nightclub incident, young men were supplying without profit to themselves to two attractive female undercover officers who were flirting with them. That is what was meant by ‘social’ supply.
Justice Henderson concluded there was no change in sentencing policy. The sentences of Bodden and Forbes were correct and there were no exceptional circumstances.