```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## CRIMINAL SIDE ### SCA NO: #0013/2019 --- ### XOTCHILT ANN WATLER v. THE QUEEN --- ### Appearances: - Mr. Oliver Grimwood of Barton Attorneys for the Appellant - Mrs. Candia James-Malcolm for the Respondent/Crown ### Before: Dame Linda Dobbs (Acting Judge) ### Hearing date: 27th July 2020 --- ### HEADNOTE Criminal Law – Appeal from the Summary Court against Sentence imposed by Magistrate – Charge: Possession of Cocaine with intent to supply – Aggravating and Mitigating factors to be considered. --- ### JUDGMENT --- **Judgment. Watler (Xotchilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020** **Page 1 of 10** ```
```markdown # INTRODUCTION
The Appellant, Miss Xotchilt Watler, pleaded guilty to a number of offences. The subject matter of the appeal, however, relates to her plea on the 25th of October 2018 to one count of Possession of Cocaine with intent to supply contrary to s.3(2) of the Misuse of Drugs Law (2014 Revision), the date of the offence being 23rd of July 2018 and the amount being 4.5g of cocaine.
The Appellant was sentenced on the 25th of June 2019. She received a total of 6 years and 6 months' imprisonment, 6 years' imprisonment for the offence the subject matter of this appeal. # THE FACTS
The facts can be stated quite briefly. On 23rd July 2018, a search warrant was executed at the home of the Appellant. During the search, police recovered several small bags of cocaine, some ganja, and cell phones. Also recovered were a grinder, scale, cash in the sum of $1,799, and notebooks/documents which appeared to be records of transactions. The Appellant was arrested at the scene and admitted to using cocaine. In her first interview, the Appellant admitted use of cocaine but denied supplying. In her second interview, she admitted supplying cocaine but denied use. She was charged on 25th July 2018. # THE MAGISTRATE'S APPROACH TO SENTENCE The Magistrate started with the 2002 Sentencing Tariffs and Guidelines for Sentencing 2002 for a first offence. No complaint was made of the starting point.
The Magistrate found the following aggravating features: (a) The offence was committed on bail; (b) Attempts were made to conceal the drugs when police raided her home (the appellant put the packets of cocaine in her mouth); (c) The appellant as carrying out operations with children residing in her home; (d) She knew of the purity; (e) The appellant knew of the penalties involved.
As for mitigating circumstances, the Magistrate found the following: (a) The Appellant had no previous convictions; (b) She had taken steps to address her need for intervention; (c) She was the primary caretaker of two young children; (d) She had a traumatic young life.
The Learned Magistrate also set out extracts from Dr Lockhart’s medical report and the Social Inquiry Report (SIR). The Magistrate noted that Appellant was able to hold down a job and expressed the view that the Appellant was a calculating person. ``` ### Footer ```markdown Judgment. Waller (Xochilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020 Page 3 of 10
The Learned Magistrate also gave consideration to the fact that the Appellant was the primary carer of her children and quoted the case of *R v. Nethersole*¹ which deals with the balancing act between the interests of society in the proper enforcement of the criminal law, and the rights of the child.
The Learned Magistrate at paragraph 17 of the sentencing remarks found that: > "the aggravating factors are serious and cancel out the mitigating factors and that the appropriate sentencing starting point for this matter is 8 years"
As for the plea of guilty, she was not prepared to give full credit and gave credit of 25%. No point is taken in relation to the percentage reduction for plea. ## THE APPELLANT’S SUBMISSIONS
The first submission is that the Learned Magistrate was in error when she concluded that the aggravating and mitigating features cancel each other out, and secondly, that she gave insufficient weight to the powerful personal mitigation.
The Appellant submits that the offence being committed whilst on bail is the primary aggravating feature. It is noted that this is the only aggravating feature noted by the sentencing Magistrate that is contained within the *Sentencing Council of England and Wales’s Definitive Guidelines*.
The Appellant suggesting knowledge of purity could be interpreted in many ways - with ty being that - one possibility she was - This se y given inginal soree in the sheose to thurc her resid the dems unlikely or single ring or cl is a yonote or the c rug. This co y given ing in the --- **2015 EWCA Crim 217** **Judgment. Watler (Xotchilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020** Page 4 of 10 ```
```markdown # Judgment: Walter (Xotchilt Ann) v R SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020 --- Cayman Islands. It is submitted that it (commenting on the purity) was mere “puff” (from the Appellant) in advertising to a customer to ensure a sale.
However, importantly, it is noted that there was no expert analysis of the cocaine to provide its purity, and so there is nothing to suggest whether the Appellant was even speaking from any position of knowledge. Without expert analysis, this should not be an aggravating factor.
The Appellant contends that the Learned Magistrate failed to give sufficient weight to the powerful personal mitigation of the Appellant, in particular, insofar as it relates to three factors: a. The traumatic abuse the Appellant suffered as a child, and its ongoing effects; b. The abuse the Appellant’s eldest daughter suffered as a young child; c. The fact the Appellant was sole carer for her children.
Counsel for the Appellant clarified that it was not suggested in the lower Court, nor advanced in these submissions that the authorities of *Petherick*² or of *Nethersole*³ are only relevant when the offender is on ‘the cusp of custody’, nor that being a single parent is a ‘trump card’ that prevents a custodial term being imposed – as appeared to be the Magistrate’s perception of the submissions.
The authorities were relied on to make the point that the Court must give detailed consideration to the effect of imprisonment on the Appellant and her young family. The ongoing effects of imprisonment on the Appellant and her young family were addressed in reports before the lower Court, and since that time Dr. --- ² [2012] EWCA 2014 ³ [2015] EWCA Crim 217 --- **Page 5 of 10** ```
```markdown Lockhart has provided an updated report (dated the 23 rd of September 2019) addressing the severe effects the custodial term is having upon the Appellant and her children.
The court was reminded that the Appellant is a single mother, who suffered sexual abuse as a child. This abuse has not been properly addressed and it has led to poor decision making as an adult. It is those terrible choices as to how to support herself and her children that brought her before the Court. The childhood trauma that was visited upon the Appellant, was also suffered by her daughter. The reports note that as a result of shared experience, the Appellant is best placed to assist her daughter in addressing what she went through.
The separation that results from a custodial term will always be felt more acutely by the primary caregiver and child. This is even more so in the present situation, and so, the sanction of prison acts as a greater punishment in this case. In conclusion, the Appellant submits that the mitigation outweighs the aggravating factors. ## RESPONDENT’S SUBMISSIONS
The Respondent’s submissions can be taken quite shortly.
The Magistrate took the appropriate starting point and made a 25% discount for the plea of guilty. The sentence of 6 years is in keeping with the relevant authorities which mandate a deterrent sentence for dealers of cocaine. The Magistrate took into account all the relevant factors when coming to her decision and did not err in finding that the mitigating factors and aggravating factors balanced out. ```
```markdown # DECISION
The grounds on which the court can allow an appeal are: a. a wrong factual basis not justified in law; b. matters improperly taken into account; c. new factual matters that have subsequently arisen or d. that the sentence was manifestly excessive or wrong in principle.
The Learned Magistrate conducted a structured sentencing exercise.
At paragraph 5 of the sentencing notes, the Magistrate determined that the Appellant fell somewhere between a leading and significant role - although more of a significant role. There was, from the evidence, expectations of significant financial gain. The Appellant was clearly in charge of her “game”, aware of the market, had her sources of supply and distribution, and was supplying directly to users. On this basis the Magistrate took the starting point of 8 years. As already noted, there is no complaint about this.
At paragraph 6, the Magistrate set out the aggravating factors. > "I have considered the aggravating factors in this case – the offence was committed whilst on bail – bail given even after she had absconded on an earlier charge. I also accept that there were attempts to conceal when the police raided her home. The children in her home were aware of the cocaine she was supplying to our society. This is prevarication and guile, imposing orders, as known to the legislators, and phone shus lives in penalties to a defendant worth if..."
The Magistrate went on to set out the mitigating factors from Paragraph 7 onwards. ``` **Judgment. Water (Xatchilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020** **Page 7 of 10**
Originally, Counsel for the Appellant had taken objection to the reference to drugs being prevalent in the Cayman Islands as being an impermissible aggravating factor. The Court indicated that it did not understand the Magistrate to be counting the reference to be an aggravating factor, but, rather, it was an explanation for why the legislation provided for heavy penalties. The point was accordingly withdrawn by Counsel for the Appellant.
The references to knowledge of purity and knowledge of the penalties are cause for concern.
Counsel for the Respondent sought to explain the references as relating to the Appellant’s sophistication as a drugs dealer and thus not being treated as aggravating factors. However, Counsel conceded that the Magistrate had already dealt with the level of sophistication when the starting point was calculated. Perhaps the Magistrate did not mean to treat these as aggravating factors but her remarks were made under the findings of aggravating factors. This Court cannot speculate as to what the remarks meant. Where there is ambiguity or uncertainty, it should be resolved in favour of the Appellant.
It is to be noted that high purity of drugs is a recognised aggravating factor in the UK. Analysis of the relevant drugs is therefore customary in the UK. Analysis of drugs is not done in the Cayman Islands. It seems to me therefore that in the absence of scientific analysis of the drugs which were recovered, it would be inappropriate to treat them as drugs way, vint, her susen told the h fact tot. Alternative Counsel ell when in be suggested for high purity references to purity in the messages to potential buyers may have been in order to make a sale. That cannot be an uncommon occurrence. ``` ### Footer ```markdown Judgment. Water (Xochilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020 Page 8 of 10
As regards, the Appellant knowing the penalties for drugs offences: This is not featured on the list of aggravating factors for drugs offences and it is difficult to see why it should aggravate the offence. In the court’s judgment, the Magistrate erred in referring to these features under the umbrella of aggravating factors.
There is one other small matter relating to aggravating factors. The Magistrate referred to the Appellant doing her operations with her children at home. The Court checked with Counsel on both sides and it was agreed that there was no evidence of the Appellant supplying from her home. It was accepted however, that the fact of drugs being on the premises where the children lived is an aggravating factor.
When dealing with mitigation, in paragraph 9, the Magistrate quoted from an extract from Dr Lambert. It was an important extract as it was relevant to culpability. However, the Magistrate did not indicate what the relevance was of the extract - unlike the extracts quoted from the SIR, which led the Magistrate to consider that the Appellant was a calculating person. The same exercise should have been applied to the extract of Dr Lambert to understand what conclusion the Magistrate drew from it and why she quoted it.
The court has a more up-to-date report from Dr Lambert. Although containing much of the same information as the report prepared for the lower court, Dr Lambert has seen the Appellant since her sentence and thus provides an update. He provides a clearer exposition of his strong opinion as to the Appellant’s responsibility, by reference to her previous history. ``` ### Footer ```markdown Judgment. Water (Xotchilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020 Page 9 of 10
The report sets out the deleterious effect of custody, both on the Appellant and on her children. The Appellant’s psychological health has deteriorated and she is in need of continued, constant psychiatric and psychological intervention. The children have also suffered as a result of the Appellant’s incarceration. The children’s visits put considerable emotional strain on both sides. However, for there to be no visits, would be even more damaging.
In light of the matters which should not have been taken into account and the updated information before the court, this appeal will be allowed.
Taking a starting point of 8 years, taking into account the aggravating and mitigating factors, including the information not available in the court below, a figure of 6 and a half (6 ½) years is reached. With a 25% reduction for the plea of guilty, the sentence is reduced to one of 4 years’ 10 months’. --- Dated this the 18 th August 2020 --- **Dame Linda Dobbs** Acting Judge of the Grand Court --- **Judgment. Watler (Xotchilt Ann) v R. SCA #13/19. Coram: Dobbs J. (Actg.). Date: 18.08.2020**