A prison term of 15 years for possession of cocaine with intent to supply was reduced to 10 years and two months after defense attorney Gregory Burke successfully appealed the Summary Court sentencing of Jolyon Arick Frederick, who had pleaded guilty to the charge.
Mr. Frederick, 31, had admitted carrying 1.8 pounds of cocaine from Cayman Brac to Owen Roberts International Airport in Grand Cayman on Dec. 5, 2017. Passengers from Cayman Brac or Little Cayman are not normally checked by customs officers and there is no immigration process, so their arrival is basically a “walk-through.”
On this date, however, customs officers were in the airport arrival section and they requested a search of Mr. Frederick’s backpack. Nine packages of the white powder were found wrapped in his clothing. When arrested, he said someone had threatened him “to take them across.” He said he did not know the man, but feared for his safety and that of his family.
Mr. Burke argued that the defendant was a courier motivated by his cocaine debt.
Magistrate Angelyn Hernandez disagreed. She accepted that Mr. Frederick was not the only person involved, but said his role in the operation was major. She pointed out that when he committed this offense, he was on bail for a charge of possessing cocaine with intent to supply in 2014. That trial had already started, but when Mr. Frederick pleaded guilty to the 2017 offense, he also pleaded guilty to simple possession in the 2014 case. The Crown accepted that plea, which related to 16 grams.
The magistrate passed sentence in May 2018. Mr. Burke argued the appeal in January and Justice Philip St. John-Stevens delivered his decision last Thursday.
In his appeal, Mr. Burke cited several cases involving similar or larger amounts of cocaine. He quoted the Alternative Sentencing Law which states that a sentence should be similar or proportionate to sentences imposed on similar convicted individuals for similar offenses committed in similar circumstances.
Mr. Burke also submitted that the magistrate erred in using the maximum sentence of 20 years as her starting point before giving credit for Mr. Frederick’s guilty pleas. He said this was “double counting” because she had done so on the basis that the 2017 offense was not his first, but then after giving a one-third discount that took the sentence to 13 and a half years, she increased it to 15 years because of the quantity and his previous offense. Justice St. John-Stevens agreed that the sentence was manifestly excessive and wrong in principle. He agreed the magistrate had erred in using 20 years as her starting point.
He also pointed out that, although Mr. Frederick had not assisted authorities in their investigation of the matter, lack of assistance was not an aggravating factor in considering sentence. Providing assistance is a powerful mitigating factor, he agreed.
The magistrate had found that there were no mitigating factors in Mr. Frederick’s case. The judge disagreed. He said it was important to consider that the defendant had brought the drugs to Grand Cayman to assuage a drug debt. This placed him in a lesser role. The organizers make the most profit, Justice St. John-Stevens commented.
He pointed out that judges and magistrates had met to consider sentencing guidelines and had considered 15 years to be the starting point for “substantial amounts” of cocaine. Mr. Frederick’s offense involved just under one kilogram.
The judge also noted that the Crown did not contest the basis of appeal.
With a new starting point of 15 years, the judge balanced the aggravating factor of being on bail for the simple possession of cocaine and Mr. Frederick’s previous record, including the fact that he had never been in custody before. With one-third discount for the guilty plea, he arrived at a total of 10 years, two months.