Chapple J
```html 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL SIDE 4 SCA #: 14/2018 (Case #00678/2016) (SWH) PWITS (Cocaine) 5 SCA #: 15/2018 (Case #00679/2016) (OLW) PWITS (Cocaine) 6 SCA #: 16/2018 (Case #00680/2016 (SWH + OLW) PWITS 7 (Cocaine) + Possession of an item used in the preparation or 8 consumption of a controlled drug 11 OSCAR LEE WATLER 12 STEPHEN WAYNE HURLSTON 20 Appearances： 21 Mr. Nicholas Dixey of Nelson & Co. for 22 Oscar Lee Watler 23 Mr. Clyde Allen for Stephen Hurlston 24 Mr. Greg Walcom of the ODPP for the 25 Respondent/Crown 28 Before： 29 Justice Roger Chapple (Actg.) 32 HEADNOTE 33 Criminal Law - Appeals (against Sentence) from the Summary Court to the 34 Grand Court - Possession of Cocaine with intent to supply - Points argued： 35 Sentence does not reflect mitigation relating to medical condition； Sentence 36 manifestly excessive in all the circumstances due to Incorrect starting point and， 37 having found the offending to be opportunistic， discount insufficient. 39 ON APPEA JUDGME ST SENT 40 ALS AGAIN 41 IN 41 42 42 43 44 Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram：Chapple J. (Actg.). Date：10.07.2020 Page 1 of 24 ```
```html 1. On 30 May 2018, these appellants were convicted following trial in the Summary 2 Court of a number of offences contrary to the Misuse of Drugs Law, the most 3 serious of which was a joint charge of possession with intent to supply 1.6 lbs of 4 cocaine. Having heard full mitigation and considered Social Inquiry Reports (SIRs) 5 available in respect of both appellants, Magistrate Kirsty Ann Gunn, imposed total 6 sentences of 12 1/2 years imprisonment on each of the appellants. 7 8. The appellants appealed to this court against both convictions and sentence. In June 9 2019, having heard full argument over a number of days, this Court dismissed the 10 appeals against conviction, delivering a full and reasoned judgement, in 11 conjunction with which, this judgment should be read. 12 13. In an affidavit in support of his appeal against sentence, Mr Watler gave some 14 details of his medical history, particularly the problems he had experienced 15 following a kidney transplant in 2008. I gave leave for that affidavit to be admitted. 16 The thrust of the submissions then made was that the regime at Her Majesty's 17 Prison Service (HMPS) Northward, Grand Cayman, Cayman Islands, where he is 18 serving his sentence, is such that his health is at risk. According to that affidavit: 19 20 “... the medication, the food in the prison and the environment of the prison 21 are damaging to my kidney function.... Dr Nelson sent a letter to the prison 22 instructing the prison to be careful to keep me in an infection free environment. 23 However, that is impossible as the prison is crowded and I am in a cell with 24 four other inmates.” 25 26 He concludes “In this way 27 “I am afraid that this prison environment may cause me to lose my only 28 transplanted kidney.” Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 2 of 24 ```
```html 1 4. Those matters having been raised, but being largely unsupported by any 2 independent evidence, it seemed to me - and to those then representing both 3 appellants - that there was no alternative but to adjourn the appeals against 4 sentence in respect of both appellants in order for further information to be 5 obtained. In my earlier judgement I dealt with that matter in this way: 6 7 “Clearly these are matters which the interests of justice and humanity demand 8 should be investigated further.....As matters now stand there is altogether 9 insufficient evidence or information for me to take his appeal against sentence 10 further at this stage. First and foremost, I have no evidence from those charged 11 with his safe custody and well-being at HMP Northward. A court is, as a 12 matter of general principle, entitled to assume that the prison service is able to 13 provide the necessary care for those sentenced by the courts, including those 14 who have special needs, whether by reason of medical conditions or otherwise 15 - unless it is informed to the contrary. The first step is for the Governor of 16 HMP Northward to be sent copies of Mr Watler’s affidavit and exhibits and 17 asked for his comments. Depending upon his response, it may be necessary for 18 further evidence and opinion to be obtained. Even if this court had the 19 resources to conduct these enquiries, it would, I am sure, be wrong as a matter 20 of principle for the court to become involved in these mechanics. It must be a 21 matter for the respondent to take this further in order to assist the court. It 22 was agreed by all parties - since it made obvious sense - that the appeals 23 against sentence of the appellants should be heard together.” 24 25 Accordingly, the appeal of Mr Hurlston was also adjourned. 26 27 5. It is only now, a year later, that sufficient information is available for these appeals 28 against sentence to be heard and this case concluded. This is wholly unsatisfactory, 29 from the point of view of these appellants, this Court and the interests of justice. 30 31 However, no useful purpose would be served now by dissecting the reasons for that 32 delay. I should add that neither Mr Dixey nor Mr Allen appeared in the court below 33 or when theagainst convicbeen instructe 34 to them for the 35 relatively rec heir industry canher of urgency into this case, which, before their involvement, was sadly lacking. Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 3 of 24
Whilst there is no record available of what was said in the court below in the course of mitigation, it seems clear that no great reliance was placed upon Mr Watler's medical condition as a mitigating factor. It appears from the original trial bundle that only the first of Dr Nelson Iheonunekwu's letters, dated 4/6/18, was before the Summary Court. It reads as follows:
"This letter serves to confirm that Mr Watler is a patient of the Health Services Authority and under my care. Mr Watler received a disease donor kidney transplant on 14th December 2008 at St Luke's Hospital Houston Texas. He also has a history of sleep apnoea for which he is on a CPAP and also has Alport syndrome. He is on a complex regime of medication to prevent rejection of the kidney. Failure to take his medications as prescribed will most certainly result in loss of his transplanted kidney. Any consideration and assistance that can be offered to Mr Watler would be greatly appreciated..."
Magistrate Gunn summarised that aspect of the case in this way:
"Although Mr Furniss [who then appeared for Mr Watler] has outlined Mr Watler's health difficulties, it has not been suggested that incarceration would be detrimental to his health and therefore provides only minimal mitigation."
The Learned Magistrate helpfully explained in detail in the course of her sentencing remarks how she had arrived at her final sentence. Relying principally upon the Statement on Tariffs and Guidelines for Sentencing for Certain Offences, dated 16th January 2002 ("the Chief Justice's Guidelines") and a number of decisions of the Cayman Islands Court of Appeal (CICA) and the Grand Court, in which or supply anere examined hard drugs were the starting point to 15 years imprisonment. She took a starting point to 15 years imprisonment that's "then reduced the sentences by 2 years to reflect her conclusion that the appellants are not professional criminals who set out to traffic in drugs." She continued: Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 4 of 24 ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 “The offending was born from an opportunistic find which they sought to exploit for their benefit. This is a mitigating factor of the offence that warrants a further year from the sentences to take account of the fact that the appellants, until their conviction for the instant offences, were of good character, in the sense that they had no previous convictions. Finally, she reduced the sentences by a further 6 months in “for all other mitigating features.” 9. In passing sentence, the Learned Magistrate said, “Consequently, the final sentence for each defendant for possession of 1.61 lbs of cocaine with intent to supply to another is 12 1/2 years’ imprisonment.” 10. It is agreed on all sides that the Magistrate fell into error when computing the final sentences: having applied a total deduction of 31/2 years from the specified starting point of 15 years should have resulted in a total sentence of 11 1/2 years’ imprisonment. At the very least, these appeals against sentence will succeed to the extent of reducing the total sentences to 11 1/2 years’ imprisonment. Concurrent sentences were passed in respect of all other offences of which the appellants were convicted. THE GROUNDS OF APPEAL AGAINST SENTENCE Mr Watler 11. As appears in Mr Dixey’s written submissions, Mr Watler appeals against the sentence passed upon him upon the single ground that “no weight (or insufficient weight) has been reflected in the sentence to account for the personal mitigation arising from [his] medical conditions, which, taken together, mean that his term of incarceration, and w veigh, moon Coram: Chapple J. (Actg.). Date: 10.07.2020 ```
```html 1 12. Thanks to Mr Dixey, a great deal more information is now available as to Mr 2 Watler's medical condition and the impact this has had and will continue to have 3 upon him while he is serving a sentence of imprisonment. Unsurprisingly, in the 4 circumstances in which the world now finds itself, he is particularly anxious about 5 his vulnerability to Coronavirus Disease 2019 (“COVID-19”). As Dr Iheonunekwu 6 explains in his letter dated 20th May 2020: 7 8 “It is pertinent to state that in this era of COVID-19 pandemic, because he is 9 on powerful immune suppressants, he is at increased risk of infection, 10 especially viral infections. He is also at high risk of developing severe 11 complications from such infections.” 12 13. Mr Dixey concluded both his oral and written submissions in this way: 14 “It is respectfully submitted that this appeal should be allowed to the extent 15 that the sentence of 11 1/2 years’ imprisonment be set aside and a sentence of 16 10 years imprisonment be substituted.... with time already served to be taken 17 into consideration.” 18 19 Mr Hurlston 20 21 14. At case management conferences prior to the substantive hearing of this appeal 22 against sentence, Mr Allen indicated that he was making further enquiries into Mr 23 Hurlston’s medical condition, arising from a reference in the SIR to a heart 24 murmur. The tentative submission made in Mr Allen’s written submissions was 25 that “the sentence failed allowance for Mr Hurlston’s long-term medical 26 problems and the consequent effect upon his health of incarceration, although Mr Allen did make All 27 crediat this is still subject to review and conclusion.” In the event, this potential argument was not Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 6 of 24 ```
```html 1 pursued, Mr Allen being able to report, following a medical consultation and ECG, 2 that any medical problem “may have corrected itself.” 3 4 15. Mr Hurlston’s sentence was, it is argued, manifestly excessive in all the 5 circumstances of the case. The Learned Magistrate was wrong to take a starting 6 point of 15 years’ imprisonment, and the discount of two years to take account of 7 her finding that his offending was opportunistic was “wholly insufficient.” 8 9 16. Mr. Allen pointed out that it followed from the Magistrate’s finding(s) that (i) the 10 appellants took no part in the importation of this admittedly substantial quantity of 11 cocaine (ii) they were not part of a larger enterprise, (iii) they had not “actively 12 dealt a single wrap of cocaine prior to PC Leslie’s intervention” and (iv) had not 13 gained any financial advantage from their offending, (iv) the offences were 14 committed on a single occasion and did not reflect a sustained period of intended 15 drug dealing and/or any association with gang crime,” and he continued to submit 16 that the Magistrate’s stated reductions to reflect (i) good character and (ii) “all 17 other mitigating features”, were not sufficient. Mr Allen prayed in aid particularly 18 the following features: 19 20 a. Mr Hurlston was a long-serving immigration officer with an impeccable work 21 record-he had now lost that employment. A character reference described 22 him as “faithful, never late, got his job done, team player, extremely 23 cooperative and got on well with all colleagues”; 24 25 b. The impact of a custodial sentence both upon him and his family was 26 substanti 27 al; 28 c. The cont 29 R 30 1 Since this Judgment was prepared in draft, an email received from Mr Allen on the 7th July 2020 has confirmed medical opinion that Mr Hurlston now has no significant heart abnormality. Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 7 of 24 ```
THE POSITION OF THE RESPONDENT
Mr Walcolm on behalf of the respondent urged that, leaving aside Mr Watler's medical condition, the sentences of 11 ½ years' imprisonment were entirely apt. A starting point of 15 years was in accordance with the Chief Justice's Guidelines and in accordance with guidance given by the higher courts. Putting that medical evidence back into account, Mr Walcolm, in his written submissions, says this: ``` "I agree that the medical conditions would constitute evidence from which the court may conclude that a term of imprisonment would weigh more heavily upon Mr Watler than his fellow prisoners. I agree that, in the circumstances, Mr Watler would be entitled to a greater reduction for personal mitigation than that which was identified by the Magistrate. On that basis, I would agree that the sentence imposed by the Learned Magistrate was manifestly excessive." ``` # LEAVE TO ADDUCE NEW EVIDENCE
In the course of this appeal, the Court heard oral evidence, received via live video-link, from Mr Steven Barrett, the Director of Prisons for HMPS, and from Dr Iheonunekwu. It was agreed by all parties and by the Court that, given the substantial delay that had occurred, the need for this appeal to be determined sooner rather than later and the general restrictions imposed in response to the COVID-19 pandemic, a pragmatic approach to the reception of new evidence was appropriate. It was further agreed that the most effective way to place the entirety of Mr Barrett and Dr Ihedence before the Court was for them to give oral evidence relating to Mr Watler's medical condition. An appeal written evidence relating to Mr Watler's medical condition is to be found in his original notice of appeal. In the course of the earlier appeal against
```html 1 convictions, I gave leave as sought. As already mentioned, when adjourning the 2 appeals against sentence, I directed that further evidence be obtained. Whilst 3 perhaps not formally stated, it follows that leave is granted for all the further 4 evidence that has been obtained to be adduced, written and oral. The fact that leave 5 has been granted does not of course mean that all those matters which have been 6 placed before me are necessarily relevant or can properly be taken into account - a 7 question to which I will return to in due course. 8 9 THE NEW EVIDENCE AT THE HEARING 10 11 19. The new evidence was for the most part concerned with Mr Watler's medical 12 condition. Mr Barrett was asked a number of questions about the general 13 conditions at HMPS Northward. These matters are relevant only to the question of 14 how the serving of the sentence has and will impact upon Mr Watler given his 15 medical condition. Entirely properly, neither Mr Dixey nor Mr Allen sought to 16 argue a "general discount" to reflect the conditions at HMPS Northward. I will 17 summarise the oral evidence placed before me in some detail, since that evidence 18 may be of assistance to the Advisory Committee on the Prerogative of Mercy 19 (“ACPM"), who, I was told, will give further consideration to an application 20 submitted on Mr Watler's behalf, once this appeal has been determined. 21 22 Mr Barrett 23 24 20. As at the date on which he gave evidence before me (24th June) the prison 25 population at HMPS Northward was 166is 26 time between 27 20 28 ways, including the exercise of the Director's executive power to release under Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 9 of 24
s.31B of the Prisons Law (2020 Revision), the exercise of the Prerogative of Mercy, expedited decisions from the Conditional Release Board, repatriation and renewed bail applications. However, the prison was however still over capacity. A report in 2015 certified the capacity at 131. Most cells are really only suitable for single occupancy, but most accommodate two prisoners. Mr Barrett candidly accepted that HMPS Northward is not suitable for modern penal work and that overall, conditions were poor. Whilst he had received few complaints about the healthcare facilities, they were not acceptable. Mr Barrett and his staff had done all they could to improve conditions, within the constraints of the present prison estate. 11
C wing had been converted into an isolation area – any new inmate arriving at the prison must be isolated for 14 days and thereafter only introduced to the main prison when he has provided a negative COVID-19 test result. 15
Mr Barrett confirmed that he had assisted Mr Watler with an application to the ACPM (the written application and a supporting statement from Mr Watler were provided to the Court). The application was for respite of sentence, proposing that Mr Watler be temporarily released under 24-hour home detention, because of his susceptibility and vulnerability to COVID-19. Mr Barrett confirmed that he did have a particular concern about Mr Watler, endorsing the note he had included in the application that, “Mr Watler is considered to be in the high-risk group of prisoners. That, of course would become a more urgent matter should there be an outbreak of COVID-19 in the prison.” 24
Mr Barrett confirmed that he had assisted Mr Watler with an application to the ACPM (the written application and a supporting statement from Mr Watler were provided to the Court). The application was for respite of sentence, proposing that Mr Watler be temporarily released under 24-hour home detention, because of his susceptibility and vulnerability to COVID-19. Mr Barrett confirmed that he did have a particular concern about Mr Watler, endorsing the note he had included in the application that, “Mr Watler is considered to be in the high-risk group of prisoners. That, of course would become a more urgent matter should there be an outbreak of COVID-19 in the prison.” 26 27 Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 10 of 24 ```
```html 1 23. Mr Barrett explained that in any prison, there is an increased risk of viral 2 infections. The data available from other jurisdictions demonstrated that the ‘R’ 3 number is very high in prisons. He explained that he had introduced a whole raft of 4 measures to try to create a protective bubble around HMPS Northward, adding that 5 “we think they have been very effective.” Immediate steps were taken to isolate the 6 two prisoners who had tested positive and put the prison into lockdown. Those two 7 prisoners have now tested negative and were asymptomatic throughout. Since then, 8 there have been no positive test results. 9 10 24. The biggest risk to prisoners is the prison officers, who of course come and go 11 from prison. Where possible, prison officers are working from home - for example, 12 education is now delivered remotely. “We have been very careful to reduce 13 contact between staff and prisoners; we’ve encouraged common-sense and the 14 prisoners have engaged with us very well. HMP Northward continues to screen 15 inmates and staff in co-operation with the Public Health Department. Family visits 16 take place virtually by FaceTime, WhatsApp and similar applications. Although a 17 2-metre rule is impossible for us, we are as careful as we can be.” Separation is 18 important, but Mr Barrett indicated that he had to keep in mind mental health and 19 security considerations. There are sufficient supplies of face-masks for everyone to 20 have several. Mr. Barrett added: “We have spent a fortune on PPE [Personal 21 Protective Equipment]. We were quickly given the same status as healthcare.” 22 23 25. Mr Watler is now accommodated on F wing - the “local top end” as Mr Barrett put 24 it. He had ace on F win behaviour. He has never featured conduct row 25 He is not locked into his cell, and can come and go within the prison as he pleases. Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 11 of 24 ```
```markdown # Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 12 of 24
26. Mr Hurlston shares a cell on B wing, the largest of the wings and the one that needs most attention and intervention. Mr Barrett explained that inmates on B wing are encouraged to engage in as much out-of-cell activity as possible. Mr Hurlston had earlier achieved a place on F wing by reason of his good behaviour, but lost it as a result of a mobile phone being found in his cell.
Dr Iheonunekwu
27. Dr Iheonunekwu is Mr Watler’s treating physician and had been for some time. He confirmed that Mr Watler is obliged to take immunosuppressant medication: “if he stopped, there would be a risk that his kidney would be rejected. He has to take those drugs for life.” He also suffers from sleep apnoea, which means that he can stop breathing in his sleep. He has a CPAP machine in his cell to assist in that regard. COVID-19 is particularly dangerous for those (i) with respiratory disease, (ii) taking immunosuppressant medication, and (iii) who live in crowded and/or unsanitary conditions. However, sleep apnoea is not a respiratory disease – it affects the upper airway and not the lower airways so that condition does not increase susceptibility to COVID-19. Mr Watler is of course at risk of exposure to the virus, whether in or out of prison.
28. In answer to questions from Mr Allen, Dr Iheonunekwu said that people with a congenital heart problem need to take care, but not especially in respect of COVID-19. If it is an isolated murmur, that would not increase risk. Dr Iheonunekwu that, as he recently 195 ```
```html 1 29. The frequency of Mr Watler’s follow-up visits to Dr Iheonunekwu is the same now 2 as before he was remanded to Northward. His condition remains stable, and is the 3 same now as prior to his incarceration. Dr Iheonunekwu added this: “I think the 4 impact of his prison sentence upon him is more psychological than physical. He 5 has a complex regime of medication.” 6 7 DOCUMENTARY EVIDENCE 8 9 30. I have been asked to consider a number of documents, primarily: 10 i. a series of reports, letters and emails from Dr Iheonunekwu; 11 ii. a report from her Majesty’s Chief Inspector of Prisons; and 12 iii. the application submitted to ACPM on Mr Watler’s behalf, together 13 with Mr Watler’s supporting letter to His Excellency the Governor 14 dated 9th April and ACPM’s decision letter dated 22nd May. 15 16 DISCUSSION AND ANALYSIS 17 18 31. The starting point in any case involving the supply or possession with intent to 19 supply hard drugs is, there is no dispute, the Chief Justice’s Guidelines, published 20 in 2002. The Sentencing Council for England and Wales has of course issued 21 guidelines for drug offences. Such guidelines are always of interest and assistance 22 in this jurisdiction but as the CICA has made clear, the applicable guideline for 23 sentencing judges in this jurisdiction is the Chief Justice’s Guidelines. The correct 24 approach is that set out by the CICA in the case of R v Millwood2 at paragraph 9: 25 26 2(Criminal Appeal 30 of 2014) Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 13 of 24 ```
```html 1 2 3 4 5 6 7 8 9 10 11 “... we start by reaffirming the court's awareness of the difference between levels of sentencing in drug offences in this jurisdiction and in England and Wales. It is indeed for this reason that it is common ground on the appeal that the applicable guidelines are the Chief Justice's guidelines and not the UK guideline. However, it is in our view important to emphasise that the Chief Justice's guidelines are, as they indicate, simply guidelines. It is, therefore, necessary for the judge in a case like this to have regard to the whole of the case before her, including the amount of drugs involved, and all the other circumstances of the case. It is essentially a discretionary exercise in which case several factors will inevitably come into play” 12 32. The relevant part of the Chief Justice's Guidelines provides: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33. Given the quantity of cocaine involved here - 1.6 lbs (that is to say 25 oz.) the Magistrate was, at first blush at least, right to start with a tariff of 15 years. She then set about weighing the aggravating and mitigating features in the case in the exercise of her discretion as to the appropriate sentences. The first step in such an exercise is, as is made clear in the Cayman Islands Sentencing Guidelines (October 2015) for the court to “consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.” The harm that hard drugs cause generally, and that 34 35 36 37 38 39 cticular cause judiction, nhasi eed is or expla uris co caine in pas in this j Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 14 of 24 ```
The October 2015 Guidelines set out four categories of culpability – not, in the view of this Court ideally suited to drug offences but given that the obvious plan was to supply at street level, category two – "is reckless as to whether harm is caused, that is, where the offender appreciates at least some harm would be caused but proceeds giving no thought to the consequences even though the extent of the risk would be obvious to most people" – would seem to be the most apt. The appellants place substantial reliance upon the Magistrates' finding of fact that one or both appellants found the drugs. At paragraph 3 of her sentence ruling she says this: "As part of my findings of fact I accept that one or both of the defendants found the drugs, as opposed to them having purchased the drugs for onward sale. Consequently, this was very much an opportunistic crime, with the defendants hoping to benefit financially from their find." This, Mr Allen argues, is of "paramount importance," since it follows that their culpability was low. Mr Allen continued that they were not typical drug dealers, purchasing in bulk for onward supply. They did not set out to deal in drugs. Rather, having found the drugs, the crime as it were came to them. This is a point well-made and is clearly a valuable mitigating feature for these appellants. However, its strength is substantially diminished by their decisions and actions after the original innocent acquisition. Rather than report their find to the appropriate authority, they resolved to turn the situation to their advantage with a criminal enterprise to supply 1.01 kg of cocaine into the streets. Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 15 of 24
```html 1 37. It is instructive to look at the England and Wales guidelines to assist in assessing culpability, since that guideline is specifically tailored to drug offences. Three categories of culpability are suggested: leading role, significant role and lesser role. Within that categorisation, the role of both appellants was clearly “significant” in that they were motivated by financial advantage. It could also be said that they had “expectation of substantial financial gain”, a feature indicative of a leading role. 7 8 38. True it is, as Mr Allen highlights, they had not “actively dealt a single wrap of cocaine prior to PC Leslie’s intervention” and “had not gained any financial advantage from their offending.” However, this, in my judgement does not assist these appellants. If such a feature were to be reflected in such cases, the result would be that the courts, as a matter of course, would treat the offence of possession with intent to supply drugs less seriously than the offence of supply. That is not the law or the policy or practice of these courts. The offences are created by the same section of the Misuse of Drugs Law, they carry the same maximum penalty. Neither the Chief Justice’s Guidelines nor the England and Wales guidelines suggest that possession with intent to supply is to be treated less seriously than a completed supply. 19 20 39. Mr Allen submits that “the offences were committed on a single occasion and did not reflect a sustained period of intended drug dealing” and that the appellants’ possession with intent to supply crystallised, for the purposes of the charges, at the moment immediately prior to Police Constable Leslie’s intervention. ```
```html 1 40. That said, it cannot as a matter of common sense and reasonable inference be the 2 position that they had only moments before found the drug. It is highly unlikely 3 that, at the time of the finding, they were coincidentally in possession of digital 4 scales, a razor blade and a supply of small snap seal plastic bags (or if that were the 5 position, it would not, for obvious reasons, reflect well on the appellants). It can 6 only be the case that they had found the drug sometime earlier, had deliberated, 7 and acquired the paraphernalia necessary to start preparing it for sale in street-sized 8 deals. I accept that it may be the case that all this took place within a relatively 9 short time-frame. 10 11 41. It is, on the face of it, difficult to fathom why these two appellants - long-serving 12 and respected immigration officers of previous good character - decided to become 13 involved in the supply of a large quantity of hard drugs. Presumably they found the 14 prospect of rich rewards too much to resist. 15 16 42. They have lost a very great deal as a result of their actions - their freedom, their 17 good character and their employment, together with the wherewithal to support 18 their families. Previous good character is always a mitigating feature; how 19 powerful it is depends on the circumstances of individual cases. In reducing the 20 sentences by one year to reflect good character, the Magistrate relied on the 21 authority of Sea ford Laborde v R3. Neither appellant seeks to argue with that 22 authority, but asks this court to take a step back and look at the overall sentence 23 against the actions and background of these appellants. 24
```html visits 27 28 14 General practice visits a. 32 nurses b. 14 General practice visits c. 6 Nephrology (Renal) visits ``` ```latex \section*{MR WATLER'S MEDICAL CONDITION} There is no dispute about Mr Watler's medical condition. It is as explained by Dr Iheonunekwu in his correspondence, reports and oral evidence. It is common ground that "since his admission to HMP Northward in June 2018 he has attended a number of appointments with the medical professionals including: \begin{itemize} \item 32 nurses \item 14 General practice visits \item 6 Nephrology (Renal) visits \end{itemize} ``` ```markdown That of course is the function of this Court - to step back and ask whether the sentences passed were manifestly excessive. It was helpful for the Magistrate to explain in detail how she arrived at her sentence and her evaluation of each of the mitigating features, although those features are in this case interlinked. One should not look at each feature in a vacuum. For example, good character may, and I think does in this case, bear upon the assessment of their culpability. In \textit{Laborde}, previous good character was the only mitigating feature. The appellants' previous good character, their lack of any criminal experience, may go some way to explaining their actions. I suspect it may be that each was encouraged by the words or actions of the other and I am prepared to accept that the enormity and consequences of their actions had not fully dawned upon them by the time of their arrest. Looking at all the circumstances I have discussed in the round, the appropriate reduction from the 15-year starting point, for both appellants, is, in my judgment, one of five (5) years. Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 18 of 24 ```
```html 1 2 d. 4 surgical clinic visits 3 4 e. 2 hospital admissions 5 6 f. 4 respiratory therapist visits 7 8 g. 3 dietician visits" 9 10 47. The majority of these visits would have been necessary, whether Mr Watler was 11 12 serving a sentence of imprisonment or at liberty in the community. Overall his 13 14 condition has not significantly changed since his incarceration and he remains 15 16 stable. That said, his concerns about his increased vulnerability to infection whilst 17 18 in the prison, as expressed in his affidavit, are readily understandable. Those 19 20 concerns have increased considerably as a result of the COVID-19 pandemic. In 21 22 his letter to His Excellency the Governor (in which he seeks a pardon, rather than 23 24 the respite of sentence requested in the application to ACPM submitted on his 25 26 behalf), Mr Watler explains: 27 28 “To make matters even worst (sic), Coronavirus is now the biggest treat (sic) 19 20 to my healthy (sic). I am afraid that if this virus enters the prison under 21 22 whatever circumstances, I might not survive. As there is no cure for COVID- 23 24 19, the cure depends solely on our antibodies to defend and kill the virus once 25 26 it enters our bodies. Unfortunately, due to my health condition, this would not 27 28 be the case for me because my defense system is suppressed. I have already 29 30 fallen sick during my time here at Northward prison. It was diagnose (sic) as a 31 32 ssible from f. I was treated 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 33 34 28 27 21 20 29 30 31 32 <
```html 1 48. How should the Court approach this aspect of the case? Firstly, as I said when 2 adjourning the appeals against sentence: 3 4 5 6 7 8 9 “a Court is, as a matter of general principle, entitled to assume that the prison 10 service is able to provide the necessary care for those sentenced by the courts, 11 including those who have special needs, whether by reason of medical 12 conditions or otherwise-unless it is informed to the contrary” 13 14 15 16 49. I have been referred to Freddy Bodden Cordero v Rs in which Henderson， J， 17 allowed an appeal against sentence， “to reflect the particular circumstances of this 18 defendant and the probability that his term of incarceration has and will weigh 19 more heavily upon him than his fellow prisoners.” The principle is well 20 established. It was helpfully summarised by Hughes， LJ in R v Hill in this way： 21 22 23 24 25 26 27 50. The extent of the reduction in any given case must depend upon the extent of 28 the disability， the practical difficulties which that imposes and a defendant's attitude 29 towards those disabilities. 30 31 51. The Lord Chief Justice of England and Wales has given guidance to the Courts in 32 that jurisdiction as to how concerns about COVID-19 should be approached. In R 33 v Manning (a ‘eneral's le Ref id this： 4 See R v Qazi and Hussain [2010] EWCA Crim 2579 5 SCA 11/2010 6 [2013]EWCA Crim 82 7 [2020] EWCA Crim 592 Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram：Chapple J. (Actig.) Date ：10.07.2020 Page 20 of 24 ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 “We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case - currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended.” 52. In Rv Jones8, a very recent decision of the England and Wales Court of Appeal, Manning9 was considered and applied. The court, noting that due to the pandemic the defendant “spends the entirety of each day, save for 30 minutes, locked in his cell and he is unable to have any social visits” and referring to Manning dealt with the matter in this way: “we are of the view that in the present, exceptional circumstances it is appropriate to take the conditions under which the applicant is presently held in custody into account. We do not of course criticise the judge for the sentence imposed because the judge was wholly unaware of the change in prison conditions that would arise just days after the sentence was imposed.” The court reduced the sentence of 8 months’ imprisonment to one of 6 months. 53. The correct approach to Mr Watler’s medical condition and his anxieties that stem from that - and his increased fears about COVID-19 - is to try to assess whether a an for anou nce has a gr for him in mate with prison sentereater imp difficulties act 8[2020] EWCA Crim 764 9Supra Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 21 of 24 ```
```html 1 54. It is clear from the evidence of Mr Barrett that conditions at HMPS Northward are 2 very far from ideal, but that all reasonable steps have been taken to limit the risk of 3 infection for Mr Watler. He now has a cell to himself, although is not locked in. 4 Regular visits for medical care are a feature of Mr Watler’s condition, whether in 5 prison or in the community, although such visits will involve greater upheaval 6 whilst he is at HMPS Northward. Whilst the situation can change rapidly, and there 7 is no room for complacency, lockdown conditions are easing, all tests at Northward 8 are negative and the infection rate in the Cayman Islands is very low. 9 10 55. In my judgement, a reduction of one year to take account of Mr Watler’s condition 11 and anxieties (before during, and hopefully after COVID-19), on the basis that a 12 prison sentence will weigh more heavily with him, is appropriate. It follows that 13 Mr Watler’s appeal against sentence is allowed to that limited extent. 14 15 56. At the conclusion of his written submissions (and repeated in oral submissions) Mr 16 Dixey submitted that this Court “should recommend to ACPM that [Mr Watler] be 17 afforded a period of respite, perhaps with a 24-hour curfew monitored by an 18 electronic monitor, until the threat posed by COVID-19 has passed..... it would 19 seem that the ACPM would be assisted by this, given the decision to defer 20 reconsideration until after the sentence appeal.” I indicated in the course of oral 21 submissions that my instinct was that it would be wrong for this Court to seek in 22 any way to influence another body, particularly one exercising an executive 23 function-and having now given the matter further consideration, this remains my 24 firm view. 25 26 er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er er</
```html 1 58. Mr Allen does not actively pursue a further reduction on either ground. Unlike the 2 defendant in Jones10, those accommodated in B wing are encouraged to spend as 3 much time out of their cells as possible. Arrangements have been made for social 4 visits by FaceTime, WhatsApp and similar. I readily appreciate that these are a 5 poor substitute for in-person visits, although this has become the norm for 6 everyone during lockdown. 7 8 59. I have considered the question of disparity. These appellants were convicted of 9 broadly the same offences and, all other things being equal, should be dealt with in 10 the same way. However, Mr Hurlston has been present throughout these 11 proceedings, in court during earlier hearings and latterly via video link, which he 12 has followed closely. I am satisfied that he understands the reason for a greater 13 reduction of Mr Watler's sentence and could have no justified sense of grievance. 14 15 60. Accordingly, these appeals against sentence are allowed, to the extent that: 16 17 a. For the original sentence passed upon Mr Watler for possession with intent to 18 supply 1.6 lbs of cocaine a sentence of nine (9) years is substituted for the 19 sentence originally imposed. The concurrent sentences passed by the 20 Magistrate for all other offences of which Mr Watler was convicted will not be 21 disturbed. 22 23 b. For the original sentence passed upon Mr Hurlston for possession with intent to 24 supply 1.6 lbs of cocaine a sentence of ten (10) years is substituted for the 25 sentence originally imposed. The concurrent sentences passed by the 26 Magistrate for all other offences of which Mr Hurlston was convicted will not 27 be disturbed. 28 Supra Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 23 of 24 ```
```html 1 c. Credit is to be given to both appellants for time spent in custody from first 2 remand into custody until 22nd August 2018 (the date upon which sentence was 3 passed by the Summary Court). These periods are to count towards the serving 4 of their sentences. 5 6 7 8 Dated this the 10th July 2020 Justice Roger Chapple Acting Judge of the Grand Court Judgment on Appeals against Sentence. SCA 14-16/2018. Watler (Oscar Lee) & Hurlston (Stephen Wayne) v R. Coram: Chapple J. (Actg.). Date: 10.07.2020 Page 24 of 24