Court of Appeal rejects plea for ‘no conviction recorded’
Anthony Berry found out last week that he will not be able to continue his studies at a university in the United States. The Cayman Islands Court of Appeal on Thursday rejected his plea to overturn a Summary Court conviction entered on his record after he pleaded guilty to consuming ganja.
He was fined $600 and convicted in December, 2010.
Addressing the Court of Appeal, Attorney James Austin-Smith acknowledged that when Berry was appearing in the Summary Court, “He was a silly arrogant boy, but that’s not who he is now.” He said Berry had bettered himself, citing his 100 per cent attendance at class and 3.58 grade average.
However, when Berry got off the plane in Texas to start his second semester, he was turned around by authorities there, Mr. Austin-Smith explained. The young man attempted to get his student visa re-granted, but was refused. He was told he would be permanently ineligible because of a controlled substance-related offence.
Appeal court Justice Abdullah Conteh said he was concerned that Berry, while before the Summary Court, had refused to enter the Drug Rehabilitation Court programme. If he had done so, as a co-accused did, he would have been free and clear, the judge pointed out.
The judges also referred to the sentencing notes of Magistrate Nova Hall. She had said that probation would normally have been the appropriate way to deal with Berry’s rehabilitation. However, the report prepared by the probation officer described him as nonchalant. It said he had missed appointments, did not show any remorse, and tested positive for ganja twice, including once just prior to sentence.
The magistrate said she saw no effort by Berry to be rehabilitated and she found no basis for not recording a conviction.
Court president Sir John Chadwick said Berry’s attitude toward ganja consumption was not uncommon among his generation and there was nothing before the court to suggest his attitude had changed. He continued, “The law is the law and you can’t decide at age 18 that it doesn’t apply to you because it’s a silly law anyway.”
Berry did not have an attorney in Summary Court or in Grand Court when he first appealed.
He tried to have the magistrate’s decision reversed, but Chief Justice Anthony Smellie said there appeared to be no error of principle in the way the magistrate dealt with the matter. The Criminal Procedure Code states that the court, having heard the prosecutor and the accused shall either convict the accused and pass sentence or shall acquit him, at its discretion, or may with or without recording a conviction make an order discharging the accused “if it is of the opinion that it is not expedient to inflict any punishment notwithstanding that it finds the charge against the accused is proved”.
When Berry was before the Grand Court, he was already attending school in the US. The chief justice asked him why he was concerned about the conviction. Berry said the school did random drug screens; he also expressed concern about future employment.
Justice Chadwick quoted the Grand Court decision when the Court of Appeal handed down its ruling. The chief justice said if he had been persuaded that Berry would experience the exceptional hardship of losing an educational opportunity in the US because of this conviction, he would have had a basis for interfering with the recording of a conviction, but that basis was not presented. The recording of a conviction did not make the sentence manifestly harsh and excessive, he concluded.
The Court of Appeal Law limits the grounds on which a person may appeal a second time. The ground may be on a point of law or against sentence, but not on any question of fact.
Mr. Austin-Smith had argued that Berry’s circumstances had changed and the change in visa status would have or might have led to a different conclusion in Grand Court if the chief justice had been aware of it.
But Justice Chadwick pointed out that whether or not the conviction remain recorded, it was undeniable that Berry had been involved in a controlled drug-related offence, because he pleaded guilty. If there were no recorded conviction he would be able to complete a form on which he could properly answer no for “Have you been convicted…?” But he could not answer no for “Have you been involved…?”
Plainly, the magistrate and the chief justice did not err in reaching the conclusions they did, the appeal court president said. Neither could it be said that it wasn’t on everybody’s mind that this problem might arise — that he might have trouble entering and remaining in the US because of this drug offence.
Now the court was asked to interfere because this potential problem had become real. The president posed this question: if the conviction were struck off the record would the attitude of US authorities change? There was no basis for making that assumption, he said.
The Cayman Islands Court of Appeal could not tell the US that Anthony Berry was not guilty of a controlled substance related offence in the circumstance that he had pleaded guilty. The court was being asked to provide him with a document he could take to persuade US authorities that the offence had not really happened and there had been no conviction.
The three judges, including Sir Anthony Campbell, saw no basis upon which they should acceded to that request.