McDonald-Bishop J
```html 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL SIDE 3 4 5 6 7 8 INDICTMENT NO ： 0054/19 9 10 REGINA 11 V. 12 ANDRE JUNIOR RUSSELL 13 BASIL ANTHONY SMITH 14 KENDAL JEROME STRAUMANN 15 MARTIN ANTONIO TRENCH 16 17 Appearances： 18 Mr. Kenneth Ferguson for the Crown 19 Mr. Rupert Wheeler of Samson Law for the 20 Defendants 21 22 Before： 23 Justice Marva McDonald-Bishop (Actg.) 24 Hearings： 25 16th & 30th August 2019 26 Delivery of Decision： 27 10th September 2019 28 29 HEADNOTE 30 Criminal Law - Illicit Trafficking - Misuse of Drugs Law - No local authorities 31 in respect of offences under s.19(2) of the Misuse of Drugs Law - Some local 32 authorities pertaining to the sentencing of offenders， mainly， in the Summary 33 Court， for offences committed under s.3(1) of the Misuse of Drugs Law - 34 Mitigation in 35 the 36 37 SENTENCE JUDGMENT 38
The four defendants are Jamaican nationals. They are charged together on an indictment containing a single count for the offence of Illicit Trafficking, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision).
The particulars of the offence are that the four defendants “on the 6th day of September 2018, on a ship not registered in any country or territory, located 27 nautical miles southeast of Grand Cayman, Cayman Islands, had in their possession a controlled drug, namely 454.41 pounds of ganja, knowing or having reasonable grounds to suspect that the drug was intended to be imported into the Cayman Islands”.
The defendants pleaded guilty to this indictment in the Grand Court on the 16th August 2019, following pleas of guilty in the Summary Court that were subsequently set aside as being null and void. ## Summary of facts
The undisputed facts on which the guilty pleas are based may be outlined as follows. On the 6th September 2018, the four defendants were intercepted about 27 miles outside the territorial waters of Grand Cayman. They were intercepted after the Air Operation Unit (AOU) of the Royal Cayman Islands Police Service (RCIPS) spotted a suspicious-looking vessel, with four persons on board, and dispatched the Joint Marine Unit (JMU) to the area. The AOU used the thermal imaging infrared camera to identify the vessel with the four defendants on board. The vessel contained several large fuel drums and packages and the boat trials were observed on the infrared camera system off-loading several large packages into the sea. ```
The vessel was eventually intercepted and identified as a 25-foot Jamaican-type canoe with no registration information displayed on it or documentation on board. The four defendants who were then identified to be Jamaican nationals were arrested. A total of 22 packages were recovered and examined by drug officers. They were found to contain ganja, weighing 454.41 pounds. The police found a receipt for the purchase of various items of food and beverage from a supermarket in Petersfield, Westmoreland, Jamaica, among the personal effects of one of the defendants. This receipt was dated the 5th September 2018. No fishing equipment or any evidence of any lawful means of making a living was observed on the vessel. The defendant, Basil Smith, was recorded to have said on caution: ``` Mi just a come a Cayman fi look for work cause Jamaica hard. I don't know nothing about anything on the boat, the bald head man and the plait head man was who steering the boat. ``` On Saturday, the 8th September 2018, the defendants were interviewed under caution in the presence of their attorneys-at-law. They all remained mute throughout their interviews. ### The procedural history in the Summary Court The procedural history of this case is critical to the sentencing process, hence its inclusion in the case brief. The summary of events of the Summary Court and the sentencing hearing chronology, as provided by the court's own checks or the record of the Summary Court (with the concurrence of counsel on both sides) has proven useful in establishing the relevant procedural history that led to the arraignment of the defendants in this court. Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 3 of 34
The four defendants were initially charged with the offence of Importation of Ganja, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision) (Charge #02009/2018). The first hearing date in the Summary Court was on the 10th September 2018, when the prosecution were required to serve the relevant papers on the defence. On the 25th September 2018: The defendants were represented by counsel, and the prosecution elected that the charge should be dealt with in the Grand Court. The matter was listed for a Long Form Preliminary Inquiry (LFPI) on the 10th October 2018. On that day fixed for the LFPI to commence, a discussion took place between the parties after the defence had pointed out that the charge of importation was not sustainable because the defendants were intercepted outside the territorial waters of the Cayman Islands. The matter was then adjourned to the 17th October 2018. On the 15th October 2018: On this date, two days prior to the date fixed for the LFPI, another charge was laid against the defendants (Charge #02327/2018). On the 17th October 2018: The matter was listed for hearing before Magistrate Donalds. The prosecution withdrew the initial charge of Importation of Ganja, pursuant to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision), and laid a new charge of Possession of Ganja, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision). The four defendants pleaded guilty to that offence. No charge of Possession of Ganja, contrary to s.3(1)(k) of the Misuse of Drugs Law (2017 Revision), was laid against the defendants. The matter was adjourned to the 17th October 2018. Both sides, as well as the Magistrate, were not aware that the offence under s.19(2)(a) of the Misuse of Drugs Law was a category B offence and, therefore, required an
```html 1 election to be made as to the mode of trial. Neither the prosecution nor the defendants 2 indicated any election to the Court. 3 16. On the 5th December 2018：The case was before Magistrate Foldats，and he observed 4 this irregularity in the proceedings. Crown Counsel，appearing at the time，then 5 indicated that the prosecution were electing trial in the Grand Court. 6 17. In response，defence counsel，Miss Fosuhene，indicated to the court that there had been 7 an election on the 14th November 2018，for the case to be dealt with in the Summary 8 Court and，therefore，the defendants had a legitimate expectation of being sentenced in 9 the Summary Court. Magistrate Foldats adjourned the case for the resolution of the 10 issue of whether an election had already been made. There were several mention dates 11 before different Magistrates between the 12th December 2018，and the 4th June 2019， 12 to，among other things，resolve the question. 13 18. On the 4th June 2019：The case was listed for hearing before Magistrate Gunn. She 14 indicated that the court record had revealed that there was no election in the matter and 15 drew counsel's attention to the decision of the Cayman Islands Court of Appeal 16 (CICA) in R v De Acosta 17 This indication，reportedly，led to a concession from the 18 defence and the guilty pleas to Charge #02327/2018 were declared by Magistrate Gunn 19 The Crown then elected trial in the Grand Court，and the case was committed to the 20 Graer a Short Fc Inquiry (SF and Court afbrm Preliminducted. 1 [2006] CILR 362 Sentence Judgment，R v. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino)。Ind. 54/19 Coram：McDonald-Bishop J. (Actg.)。Date：10.09.2019 Page 5 of 34 ```
```html 1 20. On the 12th August 2019: The defendants, in this court, raised a plea in bar of autrefois 2 acquit on the basis that the Summary Court had already dismissed the charge on the 3 indictment. Alternatively, they contended that the prosecution should either be barred 4 from proceeding in the Grand Court or that the indictment should be stayed on the 5 ground of abuse of process because: 6 7 i. the charge to which it relates has already been dismissed by the Summary Court; 8 and 9 ii. they have been given a legitimate expectation that they will not be prosecuted for 10 that offence [on the indictment]”. 11 12 The defendants also asserted, through their counsel as a preliminary point, that the 13 charge alleged on the indictment is not before the Grand Court as it was never sent by 14 the Summary Court. 15 21. The prosecution strongly contested the position taken by the defence. Crown Counsel 16 contended that the plea of autrefois acquit could not succeed because the withdrawal 17 of the case in the Summary Court for a different offence could not properly ground such a 18 plea in bar. He also contended that there was no abuse of process. 19 22. After considering the submissions of counsel on both sides, the court ruled that the 20 defendants were not correct in their contention, both in fact and in law, that the 21 prosed be barred f 22 cution shouldrom proc 23 reasons detailed in the Ruling below, which was delivered on the 16th August 2019. Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 6 of 34 ```
Ruling on Application to Stay the Indictment ## 23. For the sake of completeness of these proceedings as they transpired on the 16th and 30th of August 2109 and the 10th September 2019, this Ruling is herein recorded. ## 4 "This is an application brought by the four defendants by which they are asking this court to make a preliminary ruling that they not be called upon to be arraigned on the indictment, preferred in this court, in relation to a charge number 02327 of 2018." ## 8 The submissions on their behalf have been put in writing, quite helpfully and usefully by counsel, Mr. Wheeler, and the court has had sight of those submissions and has studied them thoroughly. The bases for the application, as set out in the written submissions, are that the plea of autrefois acquit is available to the defendants on the basis that the charge on this indictment has already been dismissed by the Summary Court. The plea should, therefore, be sustained and the charge on the indictment be dismissed. ## 15 An alternative ground is that the indictment is an abuse of process because, firstly, the charge to which it relates has already been dismissed by the Summary Court; and, secondly, the defendants have been given a legitimate expectation that they will not be prosecuted for that offence. The prosecution of the charge will bring the criminal justice system into disrepute, and it is an abuse of process. An additional alternative basis is that, in any event, the charge alleged in the indictment is not before the Grand Court, as it was never sent by the Summary Court. On those bases, the defendants are saying that the prosecution should either be barred from further proceeding against them or the indictment should be stayed. ## 25 This application is vigorously opposed by the prosecution, and Mr. Ferguson, on their behalf, has filed extensive submissions, in writing, in which he has detailed the chronology of events and the procedural history of this matter. The court is grateful to him for that assistance. ## 29 The court, having considered the submissions in writing, and also having heard both counsel in their oral arguments, had found it necessary to conduct an examination of the court’s record because it was seen that there was a clear conflict between the prosecution and the defence as to what transpired before the magistrates in the Summary Court. Having had sight of the record of the court, had discussed in chambers, the court concludes that the application is not sustainable as a matter of fact. ## 38 The court has found favour with the submissions of the prosecution because those submissions accurately reflect the history of the matter before the Summary Court. That having been said, the defence's argument that the plea of autrefois acquit is
```html 1 available to the defendants, cannot stand because the charge on the indictment 2 was never dismissed by the Summary Court. 3 The record shows, as Mr. Wheeler concedes in the end, that the charge which he 4 said was dismissed, was，in fact，withdrawn. The law treats a dismissal on the 5 merits differently from a withdrawal，so the court need not go on to look at 6 whether there is proper proof of there having been a dismissal in this case. This 7 could have been established by the production of a certificate of dismissal or 8 acquittal. The court is satisfied that no dismissal took place. 9 The defendants did not join issue with the prosecution's contention that they were 10 not pleaded to the earlier charge number 2009 (which I will refer to in short form)， 11 and that on the day when they were pleaded to the later charge 02327，the earlier 12 charge was withdrawn. Regardless of the label ascribed to it and the particulars 13 of offence，that charge was withdrawn. It，therefore，means that the Summary 14 Court had the jurisdiction to treat with charge 02327 of 2018. On October 17th， 15 2018，the defendants plead guilty to that particular charge. Pre-sentence reports 16 were requested，and subsequently it was discovered that there was an irregularity 17 in the proceedings in that neither the defendants nor the Crown had elected the 18 mode of trial or the venue of trial，whether it was to be the Summary Court or the 19 Grand Court. 20 The learned magistrate，having seen that irregularity，and having been guided by 21 the law as it relates to an election，found that the proceedings were a nullity up to 22 that point in terms of the guilty pleas. She，therefore，ruled that the guilty pleas 23 were null and void. It means，therefore，that with the pleas declared to be nullities， 24 the defendants would have been reverted to the position in which they were before 25 the pleas were taken. This means mean that the charge would still stand for a plea 26 to be taken，whether by indictment in the Grand Court or by information in the 27 Summary Court. 28 It happened that the Crown made an election that the matter be committed to the 29 Grand Court. It follows，therefore，that this court cannot find that the indictment， 30 which is preferred in the Grand Court，pursuant to that election，is an abuse of 31 process as alleged. The charge to which it relates has not been dismissed. The 32 defendants have not yet pleaded to the charge to which it relates because of the 33 declaration that the earlier pleas are nullities. 34 Mr. Wheeler's contention，that the defendants would have had a legitimate 35 expectation to be tried and sentenced in the Summary Court，with all due respect， 36 has no merit. Legitimate expectation would not have arisen in these circumstances 37 because all relevant parties were labouring under the misconception，it would 41 hanged theirce do so. Leecthe prose dejourt trial 38 aan election'e or that it 39 peep，that had been ncessary that 40 should be maas no praad one 42 But even if legitimate expectation had arisen，it must give way to the law，and the 43 law is clear that there must first be an election，before a valid trial can proceed in 44 the Summary Court. So，the law takes precedence over any legitimate expectation 45 that could have arisen in the minds of the defendants. Sentence Judgment. R v. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino). Ind. 54/19 Coram：McDonald-Bishop J. (Actg). Date：10.09.2019 Page 8 of 34 ```
```html 1 There is no merit in that ground, as I have said, and so I must reject the argument 2 that the indictment is an abuse of process. 3 The alternative limb of the application is that the indictment is not before the 4 Grand Court because it was never sent from the Summary Court. This argument is 5 also rejected. Magistrate Gunn had provided her ruling to this court that the 6 matter is sent to the Grand Court. I see no basis in law to disturb that ruling. The 7 magistrate has provided something more on the record. She states that given that 8 the defendants have been in custody for some nine months, she believes that the 9 matter could be set down for arraignment and sentence on the same day, in which 10 case, the Grand Court could list it on a date other than the 14th of June, 2019. 11 She sought to set out the history of the case, obviously with the intention that the 12 Grand Court could be guided in treating with the matter expeditiously in light of 13 what transpired before her concerning the pleas. 14 So having said all that, in a nutshell, the submissions of counsel are there, which 15 would form part of the record. The court must reject the submissions presented by 16 the defence because they are not supported in law in these circumstances. The 17 application is, inevitably, refused. The defendants are to proceed to arraignment." 18 24. Following the ruling that the indictment was properly laid in the Grand Court, the 20 defendants were arraigned, and all pleaded guilty to the charge on the indictment. 21 Sentencing was deferred. 22 The Applicable Law 23 25. Section 19(2)(ii)(B) of the Misuse of Drugs Law provides that on indictment in the 24 Grand Court, the offender is liable to a fine and imprisonment for 14 years. Section 25 19(2)(ii)(A), on the other hand, provides that on Summary conviction, the penalty is a 26 fine of $10,000.00 and imprisonment for 2 years. The courts of the Cayman Islands 27 have construed these provisions to mean that the penalties are in the alternative and so 28 it is for both a fine and a imprisonment to be imposed. 29 Guidelines for Sentencing for Certain Offences, issued by the Chief Justice of the ```
```html 1 Cayman Islands in January 2002 ("The Chief Justice's Sentencing Guidelines, 2002"), 2 do not make provision for this offence of Illicit Trafficking. 3 27. Counsel have also advised the court that to the best of their knowledge, there are no 4 local authorities in respect of offences under s.19(2) of the Misuse of Drugs Law. Mr. 5 Ferguson explained that this is because, up until recently, the authorities would 6 intercept vessels transporting controlled drugs within the territorial waters of the 7 Cayman Islands and so perpetrators would be charged under s.3 of the Misuse of 8 Drugs Law. There is, therefore, no authority brought to the court's attention, which is 9 directly on point with the instant case. 10 28. Counsel on both sides have used, as their point of reference, some local authorities 11 pertaining to the sentencing of offenders, mainly, in the Summary Court, for offences 12 committed under s.3(1) of the Misuse of Drugs Law in respect of large quantities of 13 ganja found on vessels at sea. I have been guided by those authorities, while bearing in 14 mind the definition of "tariff" in The Chief Justice's Sentencing Guidelines, 2002 as 15 "the sentence to be applied in a typical case", with no aggravating or mitigating 16 features taken into account. 17 29. It is acknowledged that the maximum penalty is not to be imposed unless in the most 18 serious of offences and in relation to an offender who deserves such a penalty. 19 Guidance is also derived from the principle stated in the Cayman Islands Sentencing 20 Guidelines that the court must not pass a custodial sentence unless it believes that the 21 offender that no other sentence can be justified 22 ce is so serious a sentence 2 Section 4 of the Alternative Sentencing Law Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 10 of 34 ```
```html 1 30. I have had regard to the circumstances of the case and the circumstances of each 2 offender. I have adopted the recommendation in the Cayman Islands Sentencing 3 Guidelines that all available sanctions, other than imprisonment, that are reasonable in 4 the circumstances of each case, should first be considered. A sentence of imprisonment 5 must be regarded as a matter of last resort. 6 31. There is no question that the illicit trafficking in dangerous drugs and the intention to 7 import those drugs into a country unlawfully is a serious offence. Furthermore, the 8 importation of ganja and related offences are well established to be a scourge on this 9 island. 10 32. Magistrate Foldats, in the case of R v Adlam (Derrick Anthony)， Cunningham 11 (Demarco Deinton) and Morgan (Leroy Johnoton)3 provides a colourful picture of 12 the prevalence of these offences within this jurisdiction, when he observed (page 1 of 13 written reasons for judgment) : 14 “Yet again we have foreign nationals before the court who are guilty of importing 15 illegal drugs into our country and who must be sentenced by this court. 16 Sadly, the narrative in these cases have become familiar, almost clichd - a ganja 17 boat is intercepted, the culprits are apprehended, large quantities of illegal drugs 18 are recovered, and lengthy jail sentences are imposed. And yet, ganja boats 19 continue to arrive in our waters and recently, it seems, almost on a weekly basis. 20 Why? One reason must be that local demand creates a profitable market for illegal 21 drugs. Until this issue is adequately addressed, ganja boats will continue to arrive; 22 but that is a complex and difficult societal issue that this court is unable to resolve. 23 In the meantime, the lure of money will entice individuals, like these defendants, to 24 engage in drug importation schemes despite the risk of years in jail when 25 captured." 26 3 Unreported. Charge No 4697/2017 (23 rd March 2018) Sentence Judgment. R v. Russell (Andre Junior)， Smith (Basil Anthony)， Straumann (Kendal Jerome)， Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 11 of 34 ```
```html 1 33. Given the nature of the offending, the quantity of drugs involved, as well as the culpability of each defendant, this court is satisfied that the custody threshold has been reached for the imposition of a custodial sentence for each defendant. The imposition of a sentence of imprisonment is inevitable. 5 34. In determining the length of the custodial sentence, I have borne in mind the purpose and the aim of sentencing, as documented in the Sentencing Guidelines. I have found that while there should be a balancing of all these objectives, greater weight must be attributed to deterrence, punishment and rehabilitation in the circumstances of this case. 10 35. In making this decision, I have also borne in mind the proportionality principle, that is to say, that the severity of the punishment inflicted should be proportionate to the gravity of the offence and the degree of responsibility of each defendant. 13 36. In the absence of any evidence to the contrary, culpability is shared equally, among the defendants. 15 37. The remaining question for this court is what should be the length of the sentence in respect of each defendant. DETERMINING THE APPROPRIATE SENTENCE 38. I do not believe that the circumstances of the offending and the offenders in this case 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19</p
A. The starting point and category range
Counsel on both sides have brought to the court’s attention several authorities, which they contended should be utilised in determining the appropriate sentence range as well as the starting point within that range.
The prosecution relied on these authorities and suggested a starting point of 4 to 5 years’ imprisonment: i. **Quest (Harold) v R 4 ;** ii. **Comrie (Mitchell) v R 5 ;** and the case of iii. **R v Adlam (Derrick) 6 , R v Grant (Glenval George) 7 , R v McCoy (Jason Phelan) 8 and R v Samuels (Noel Alexander) 9 .**
The defence relied on **Comrie (Mitchell) v R** for the general principles of law to be applied, along with a table of Summary Court cases reported in the Cayman Compass newspaper.
The table of unreported cases and sentences that the defendants’ counsel brought to the attention of the court are these: **R v Adlam (Derrick Anthony), Cunningham (Demarco Deinton) and Morgan (Leroy Johnoton) 10 ; R v Johnson (Joshua Eyon), Pillarchie (Linton Nypole) and Reynolds (Cephas Solomon) 11 ; R v Rose (Charles),** 4 SC—dated the 24 th May 2010 (ILR A0006/2009) 5 SC—dated 29 th February 2012 (ILR A0001/2011) 6 (C/13) A0006/2009 May 2010 (ILR A0006/2009) 7 (Charge #06568/13) 8 (Charge #06480/13) 9 (Charge #06569/13) 10 Supra 11 (Charge #04942/2017) Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 13 of 34
```html 1 Brown (Marvin) & Folkes (Andrew)12; and R v Swaby-Ebanks (Yoandy) & Wright 2 (Terry Christopher)13. These cases show a sentencing range from a low of 28 months 3 to a high of 36 months for guilty pleas. There was one case reported in which the 4 defendant was sentenced to 42 months after a trial. They also illustrate sentencing in 5 respect of possession of ganja of varying weights (from 424 pounds to 810 pounds) 6 and the circumstances of each offender such as previous convictions and their degree 7 of cooperation with the police. 8 43. 9 In placing reliance on those cases, Mr. Wheeler pointed out that it was not possible for 10 the sentencing court in those matters to determine the role of the defendants because 11 they were all crew members and no individual had a more prominent role than the 12 other, as is the situation in the instant case. 13 44. 14 Counsel also noted that the cases all involved the offence of importation of ganja, 15 which means that those defendants had successfully arrived in the Cayman Islands 16 borders. He submitted that the actus reus in this case, is different, there being no need 17 to bring the drugs into the jurisdiction, and the mens rea is of a lower standard, which 18 is knowledge or having reasonable suspicion that the drug is intended to be imported. 19 On account of that reasoning, counsel submitted that some discount should be applied 20 to the usual starting point in importation of ganja cases in arriving at an appropriate 21 starting point in this case. 22 45. 23 Counsel recommended a starting point between 20 months (1 year 8 months) to 25 24 monthmonth). 25 ns (2 years 1 12 (Charge #00577/2018 13 (Charge *00169/2018 Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 14 of 34 ```
```html 1 46. I had indicated to Mr. Wheeler during his submissions that if the reasons for sentences of the Magistrates in the cases reported in the Cayman Compass could be obtained to verify all this information which he highlighted to be applicable in determining the starting point, then that would have been a more reliable source. This would have been necessary because the newspaper may not have recorded all the material facts and circumstances, which would have guided the Magistrates in arriving at the appropriate sentence in each case. Regrettably, I have not received the reasons for all the sentences from counsel. There is, therefore, an obvious limitation in placing reliance on the cases merely on the length of the sentences and the quantities of ganja involved. This limitation arises from the fact that the court would not be seized of the relevant information as to the personal circumstances of each offender, which is an essential consideration in the sentencing process. 13 47. The sentences in those cases would have been arrived at after the court would have considered personal circumstances of aggravation and mitigation and a reduction for the guilty plea subsequently applied. The starting point must be determined by having regard to the sentence that would be given, following a trial and without regard to aggravating and mitigating factors and the guilty plea. 18 48. Through the assistance of the criminal registry, I obtained the reasons for sentence of Magistrates Foldats and Gunn in three cases heard in the Summary Court, which included, it seems, two of the matters referenced by Mr. Wheeler. The cases for which reasons have been obtained are: ``` ```latex \section{46.} I had indicated to Mr. Wheeler during his submissions that if the reasons for sentences of the Magistrates in the cases reported in the Cayman Compass could be obtained to verify all this information which he highlighted to be applicable in determining the starting point, then that would have been a more reliable source. This would have been necessary because the newspaper may not have recorded all the material facts and circumstances, which would have guided the Magistrates in arriving at the appropriate sentence in each case. Regrettably, I have not received the reasons for all the sentences from counsel. There is, therefore, an obvious limitation in placing reliance on the cases merely on the length of the sentences and the quantities of ganja involved. This limitation arises from the fact that the court would not be seized of the relevant information as to the personal circumstances of each offender, which is an essential consideration in the sentencing process. \section{47.} The sentences in those cases would have been arrived at after the court would have considered personal circumstances of aggravation and mitigation and a reduction for the guilty plea subsequently applied. The starting point must be determined by having regard to the sentence that would be given, following a trial and without regard to aggravating and mitigating factors and the guilty plea. \section{48.} Through the assistance of the criminal registry, I obtained the reasons for sentence of Magistrates Foldats and Gunn in three cases heard in the Summary Court, which included, it seems, two of the matters referenced by Mr. Wheeler. The cases for which reasons have been obtained are: ```
```html 1 i. Rv Adlam (Derrick Anthony)，Cunningham (Demarco Deinton) and Morgan 2 (Leroy Johnoton)14; 3 ii. Rv Ricketts (Oshane Nickoy)，Robinson (Andre Washington) and Maxam 4 (Nicholas Odell)15；and 5 iii. Rv Swaby-Ebanks (Yoandy) & Wright (Terry Christopher)16. 6 49. The Magistrates，in arriving at their decisions in the cases above，usefully referenced 7 several other cases，including Quest17 and Comrie18，which are among the authorities 8 relied on by the parties in this case. The cases，including those cited by Mr. Wheeler 9 from the reports in the Cayman Compass，do serve to，at least，to illustrate the range of 10 sentences imposed in the Summary Court for a guilty plea in cases involving the 11 importation of large quantities of ganja into the Cayman Islands by boats. 12 50. In the absence of specific sentencing guidelines treating with this particular offence， 13 and given the lack of any recorded precedent for the offence under consideration in this 14 case，invaluable guidance is obtained from the reasoning of the Honourable Chief 15 Justice in Comrie19. 16 51. In that case，the Appellant pleaded guilty to，among other things，being concerned with 17 the importation of ganja with intent to supply，contrary to s.3(1) of the Misuse of 18 Drugs Law (2009 Revision). The Appellant was sentenced to 5 years’ imprisonment 19 for each offence，with the sentences to run concurrently. The total weight of the ganja 14 Sup pellant，hmitt recovpolice was ra Ap ed that 15 (Charge #s00172/2018 & #00173/2018) Supra Supra Supra Supra 17 Supra 18 Supra 19 Supra Sentence Judgment. Rv. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 16 of 34 ```
```html 1 about 50 pounds belonged to him. He explained that he saw ganja being loaded onto 2 the boat and loaded some for himself intending to sell it when he arrived in Grand 3 Cayman. He had no previous convictions. 4 52. The Chief Justice referred to the UK Sentencing Guidelines, as detailed in the case of 5 R v Aramah20, and observed that, the UK guidelines cannot assist with the appropriate 6 starting point in this jurisdiction given the difference in the prescribed penalties, but, 7 that they assist with the relevant considerations a sentencing judge should take into 8 account when sentencing an offender for importation and possession of controlled 9 drugs with intent to supply. He concluded that the starting point in relation to the tariff 10 in this jurisdiction would be “significantly lower” than that of the UK, albeit that the 11 relevant factors to be taken into account may be similar. 12 53. The Chief Justice established the following as the three key factors that the court 13 should have regard to when sentencing in such cases: 14 i. The quantity of ganja; 15 ii. The defendant's role in the commission of the offence; and 16 iii. Whether the defendant has previous convictions. 17 54. He noted that the quantity of drugs is often the most important factor in sentencing for 18 drug offences. He cited Guardiola v R21, in which it was held that the length of the 19 sent measured by the drugs involved, and 20 ence is to be the quantity that a sent 21 2 years' imprisonment was appropriate. 20 76 Cr. App R 190 21 (Grand Court) 1994-1995 CILR N-20 Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 17 of 34 ```
```html 1 55. After considering several authorities and the facts of the case before him, the Chief 2 Justice concluded that the starting point used by the Magistrate was manifestly 3 excessive. He opined that an appropriate starting point would have been somewhere 4 in the region of 3-4 years’ imprisonment, given the Appellant’s secondary role, lack 5 of previous convictions and the amount of ganja acknowledged by him, which was not 6 disproved by the Crown. He also found that the Magistrate did not make reference to 7 the giving of any credit for the guilty plea in her sentencing remarks. The Appellant, 8 he stated, was entitled to a significant discount, given his admissions and cooperation 9 with the police. 10 56. The Chief Justice concluded that the appropriate sentence should have been 3 years’ 11 imprisonment when credit was given for the guilty plea. He ordered that sentence to be 12 substituted. It can be concluded that the provisional sentence (that is before allowance 13 was made for the guilty plea) would have been higher, somewhere in the region of 4 14 years. 15 57. In the case of Rv Adlam (Derrick)22, Rv Grant (Glenval George)23, Rv McCoy 16 (Jason Phelan)24 and Rv Samuels (Noel Alexander)25, Magistrate Gunn, after a 17 review of several authorities, held that the appropriate starting point for a crew member 18 charged with the importation of 174 pounds of ganja, as a first offence, and who is of 19 good character, was 3 years’ imprisonment. Mr. Ferguson submitted on behalf of the 20 prosecution that the starting point in the instant case should be higher than that of 3 22 (Charge #06571/13) 23 (Charge#06568/13) 24 (Charge #06480/13) 25 Supra Sentence Judgment. Rv. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 18 of 34 ```
```html 1 years utilised by the magistrate by virtue of the larger quantity of ganja involved in this 2 case. The case of Quest26，he said，is instructive in this regard. 3 58. In Quest27(a Jamaican ganja-boat case)，the offender was sentenced to 4 years' 4 imprisonment for possession of 192.42 pounds of ganja with intent to supply 5 (Caymanian Compass 9th March 2009). The Chief Magistrate observed that the 6 sentence would have been the same had the offence been one of importation of ganja. 7 The sentence was confirmed both by the Grand Court28 and the Court of Appeal29. 8 59. In Rv Adlam (Derrick Anthony)，Cunningham (Demarco Deinton) and Morgan 9 (Leroy Johnoton)30 the quantity of ganja involved was 461.74 pounds. All three 10 defendants plead guilty. After assessing the seriousness of the offence，by reference 11 to harm and culpability，Magistrate Foldats set the starting point at 4 years' 12 imprisonment，where the offender's role was limited to that of a crewman. He did so 13 after having regard to Comrie31 and Rv Adlam (Derrick)32，Rv Grant (Glenval 14 George)33，Rv McCoy (Jason Phelan)34 and Rv Samuels (Noel Alexander)35，as well 15 as Rv Hydes (Leon)，Swaby-Powery (Clibland) & Crowe (Marlon)36. In the latter 16 case，Justice Quin imposed sentences of 34，42 and 54 months' imprisonment on three 17 defendants who pleaded guilty to importing 194 pounds of ganja into the Cayman 18 Islands. 26 Supra 27 SCA No. 06/09 28 CICA No. 15 29 (2010) 30 (Charge #06571/13) 31 Supra 32 (Charge#06568/13) 33 (Charge#06480/13) 34 Supra 35 Supra 36 Unreported. Inds. 35-37/19 Sentence Judgment. Rv. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino). Ind. 54/19 Coram：McDonald-Bishop J. (Actg.). Date：10.09.2019 Page 19 of 34 ```
The cases considered thus far do show that the category range for the importation of ganja, in cases with similar quantities as in this case; involving similar offenders with no previous convictions and following guilty pleas, entered at an early stage of the proceedings, is between 30 months' (2 years 6 months') to 45 months' (3 years 9 months') imprisonment. I find that a sentence of 48 months (4 years') imprisonment is an appropriate starting point for a first-time offence of importation of the quantity of ganja in this case. The intention on the part of the perpetrators would have been the same as that required to import ganja into the Cayman Islands. I would accept that the sentences imposed for the importation of ganja could be treated as a useful guide in determining the starting point to be used for this offence. This offence of Illicit Trafficking is treated by the legislature as being different from the importation of ganja, as evidenced by the elements which constitute the offence and the penalties prescribed for it. I conclude that there is a justifiable basis for utilising a lower starting point for this offence than that used in the cases of importation of ganja. The discount from the usual starting point in importation cases is allowed in recognition of the fact that the boat had not yet reached within the territorial waters of the Cayman Islands at the point of discovery. Having had regard to the quantity of ganja involved, which was not insignificant, and the role played by the defendants, as crewmen, in conveying the drug across the high seas, I believe that a starting point of 42 months' imprisonment is appropriate. This sentence is arrived at by reference to the starting point of 48 months' imprisonment for the importation of ganja, taking into account the lower starting point for Illicit Trafficking and the role of the defendants as crewmen. The sentence is appropriate and serves as a deterrent to the offence, which involves the quantity of the drug, the culpability of the defendants, and the role played by the defendants in conveying the drug across the high seas. Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 20 of 34
```html 1 defendants and the harm of their offending. There is nothing from the prosecution to 2 establish that any of the defendants was the mastermind. 3 Legitimate expectation 4 64. Mr. Wheeler had urged the court to impose a sentence that would have been imposed 5 by the Summary Court had the defendants been sentenced there, in keeping with the 6 pleas of guilty they entered in that court, shortly after being arrested and charged. He 7 relied on the principle of legitimate expectation and the dicta of Lord Bingham CJ in R 8 v Nottingham Magistrates’ Court, ex. p. Davidson37 9 In that case, the Applicant 10 appeared before a Magistrates’ court and indicated an intention to plead guilty to the 11 offences for which he was charged. After hearing submissions of the prosecution and 12 the defence, the Magistrates concluded that their powers were sufficient for the matter 13 to be dealt with in that court. The Magistrates adjourned the matter for a pre-sentencing 14 report, and the Applicant subsequently appeared before a Stipendiary Magistrate. The 15 Stipendiary Magistrate decided that his powers of punishment were not sufficient and 16 committed the Applicant to the Crown Court for sentence. The Applicant made an 17 application to quash the decision of the Stipendiary Magistrate to commit him to 18 the Crown Court for sentence and for the matter to be remitted to the Magistrates’ court to 19 be heard by a differently constituted bench. 20 65. The Applicant argued that the Stipendiary Magistrate had no power to commit him for 21 sentence following the indication given by the Magistrates on his earlier appearance in 22 the matter. The Appellant 23 could not be sentenced by the Crown Court for 24 sentence. 37 [2000] 1 Cr App R (S) 167 Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 21 of 34
Lord Bingham CJ held at page 169 of the report: "The principle which governs legitimate expectations of this kind is not in doubt...it can in my judgment be summarised in the following way. If a court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him, in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court, without reasons which justify departure from the earlier indication, and whether or not it is aware of that indication, passes a sentence inconsistent with, and more severe than, the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated. The question which arises on this application is whether the factual basis for applying that principle is made out."
The Lord Chief Justice concluded that there was a factual basis in the case for the application of the principle of legitimate expectation.
Mr. Wheeler submitted that based on the proceedings in the Summary Court, which led to the defendants' guilty pleas and preparation for sentence in that court, they would have had a legitimate expectation to receive a sentence within the jurisdiction of the Summary Court and not the Grand Court.
The circumstances of this case are distinguishable from those that obtained in *R v. Nottingham Magistrates Court* 38 and the principle of legitimate expectation, as described by Lord Bingham CJ, is not applicable. The Magistrate, in this case, had no authority to take the pleas in the circumstances she did, without the prosecution or defence having been put to their election as to the mode of trial. It is firmly established on in authority that *n elea is takann* made as to whicheither way, en having beo thn cases, disuptable at where a pl ection firen hary Cou ``` 38 [2000] 1 Cr App R (S) 167 Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 22 of 34 ```
```html 1 of trial， the plea， is a nullity and the proceedings would be invalidated. See R v De 2 Acosta39. 3 70. The prosecution having exercised their election to have a Grand Court trial， upon the 4 pleas having been declared a nullity， the defendants could not properly have had a 5 legitimate expectation to be given a sentence in the Grand Court that does not exceed 6 the maximum sentence that could have been imposed by the Summary Court. The case 7 falls outside the circumstances contemplated in R v Nottingham Magistrates Court40. 8 71. Accordingly， there is no basis to reduce the sentence from the starting point to make 9 allowance for the operation of the principle of legitimate expectation and to fit the 10 sentence within the jurisdiction of the Summary Court. 11 B. Aggravating factors (common to all defendants) 12 72. Having been guided by the list of potential aggravating factors in the Cayman Islands 13 Sentencing Guidelines as taken from section 4(c) of the Alternative Sentencing Law， 14 I have identified the following as aggravating features that would result in an upward 15 adjustment from the starting point in relation to each defendant： 16 i. Prevalence (the offence falls within a class of kindred offences， which are 17 prevalent) 18 ii. Planning of the offence iii： to conceal/ vidence An attempt dispose of the evidence 39 Supra 40 Supra Sentence Judgment. R v. Russell (Andre Junior)， Smith (Basil Anthony)， Straumann (Kendal Jerome)， Trench (Martin Antonino)。 Ind. 54/19 Coram： McDonald-Bishop J. (Actg.)。 Date： 10.09.2019 Page 23 of 34 ```
```markdown # Sentence Judgment: R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 ## 73. These aggravating features that are common to all defendants have served to cause an upward adjustment from the starting point to 51 months' (4 years 3 months') imprisonment. ## C. Mitigating factors ### i. Delay ## 74. Mr. Wheeler submitted that the court should make an allowance by way of a discount in the sentence based on the unfair treatment of the defendants. He cited the delay on the part of the prosecution in settling the charge for which the defendants ought to have been tried and the procedural error in the Summary Court that resulted in the defendants' earlier plea of guilty being invalidated. He also pointed out that these procedural blunders led to the committal of the defendants to this court to be sentenced almost one year after their initial guilty pleas. Mr. Wheeler contended that due to no fault of the defendants who have pleaded guilty from as far back as October 2018, the long delay in sentencing them had operated unfairly on them and their families, who have not known their fate. This unfairness, he said, calls for a reduction in sentence. ## 75. Crown Counsel Mr. Ferguson accepted that the defendants are entitled to an appropriate discount for their guilty pleas. He conceded that due to the matters that have been dealt with in the courts, and the time which it took to have the procedural issues resolved, each defendant is entitled to a full discount for his guilty plea. He also noted that they had entered guilty pleas on the 17th of October 2018, which was due to their own fault. ```
```html 1 76. Mr. Wheeler countered that the reduction in sentence on account of the guilty plea is 2 not enough because that reduction would make no allowance for the fact that the 3 defendants would have been almost a year in serving their sentences. He argued that 4 given the delay in resolving the issues concerning the correct charge and the election, 5 the defendants would be starting their sentences a year later. 6 77. Although I would not label what has occurred as unfair treatment of the defendants, it 7 is clear that they have been prejudiced on account of the undue delay in the settling of 8 the charge to be laid against them and the making of the election as to the mode of 9 trial. They were adversely affected by the procedural error in the Summary Court, 10 which was not at all intentional, but which resulted in a delay in the disposal of the 11 case. 12 78. The Cayman Islands Sentencing Guidelines do not expressly recognise delay between 13 the commission of the offence and disposal of it as a relevant mitigating factor. The 14 UK Sentencing Guidelines, however, explicitly do so. Those guidelines, in treating 15 with the offences of wounding and grievous bodily harm, for instance, do identify 16 delay due to no fault of the defendant as a relevant factor going towards mitigation of 17 sentenc 18 79. It is clear, however, that in this case any unfair operation of delay is partially mitigated 19 by the fact that the defendants are entitled to be credited for time spent in custody. I do 20 not accept, however, that credit for the guilty pleas is to make up for the delay in 21 disposal of the nited by M 22 one of them. Sentence Judgment. R v. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino)。Ind. 54/19 Coram：McDonald-Bishop J. (Actg.)。Date：10.09.2019 Page 25 of 34 ```
```html 1 80. It is accepted that the defendants had been in custody awaiting sentence for about 8 2 months following their admissions of guilt at the earliest opportunity that presented 3 itself. They would have started their sentences almost a year ago had the procedural 4 issues not occurred. A discount in the sentence would give recognition to the fact 5 that they were deprived of the opportunity to begin their sentences at an earlier time 6 following their early guilty pleas. Having taken into account that the defendants will be 7 credited for time spent in custody, I believe that it is reasonable to give a further 8 discount to each defendant on account of the delay that resulted from the procedural 9 error and the failure of the prosecution to settle the correct charge against them within 10 a reasonable time. They were entitled to be sentenced within a reasonable time of 11 indicating an intention to plead guilty. 12 81. I would accord a 3-month reduction in sentence to each defendant for the delay in the 13 proceedings, which was due to no fault of their own. This would move the starting 14 point downwards to 48 months (4 years). 15 ii. Remorse 16 82. Mr. Wheeler has cited remorse as a factor to be considered in mitigation of sentence. 17 The defendants have not backed their expression of remorse by any genuine evidence 18 of it. There was no cooperation with the investigations as they remained mute on 19 interview and so they have done nothing to assist law enforcement. This verbalised 20 expression of remorse is not backed by any hard evidence and, therefore, does not 21 attract any signifi 22 any signifi 23 view, however, is not always the case, especially in cases where persons have been ```
caught red-handed and have no likely chance of an acquittal, as in the circumstances of this case.
The weight to be attached to remorse, however, has been examined, more specifically, in treating with the sentence to be imposed on each defendant, having regard to his personal circumstances and his reported attitude to the offence. ### iii. Economic circumstances
The commission of these types of offences is, invariably, driven by economic considerations, whether for need and/or greed. Poverty, however, cannot be an excuse for criminal activities and so the financial circumstances of each defendant will not be treated as a factor going to mitigation. To treat it as a mitigating factor would have the effect of encouraging persons who are poor to break the law on account of economic circumstances and, particularly, so within the context of an offence in which the drive and objective to realise some financial gains are inherent in its commission.
While I will not mitigate the sentence on account of need, I will not view the defendant's involvement in the commission of the offence as resulting from greed and, therefore, as a factor to be used to aggravate the sentence. Poor economic circumstances are, therefore, not used to affect the sentence in any way. ### iv. Responsibilities for families in Jamaica and the impact of pre-sentencing detention
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The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type of not read considerations. The possibility of neutralisation should have of family type
```html 1 known that they were committing a criminal offence, not only against the laws of their 2 own country but that of the foreign State. I see no need to generally reduce the 3 sentences on account of the impact of the offending on the defendants responsibilities 4 for families in Jamaica. Except in the case where a defendant is proved to have been 5 the sole caregiver for minor children, no recognition is usually given to family 6 responsibilities as a mitigating factor. 7 v. The absence of previous convictions 8 87. It is accepted that relevant previous convictions can be taken as aggravating factors in 9 causing an upward adjustment to the starting point. In contrast, the absence of any 10 previous, relevant or recent conviction is a basis for mitigation in sentencing. Two of 11 the defendants have previous convictions, and two do not. For this reason, the 12 consideration to be given to the absence of previous convictions, as a mitigating factor, 13 has been considered during dealing individually with each defendant. 14 D. Reduction for guilty pleas 15 88. Although it is quite evident that these defendants were caught red-handed and have no 16 viable defence in law, therefore leading to an overwhelming case against them, I will 17 not take away the full credit to be accorded to them for pleading guilty. This is part of 18 the recognition given to the fact that they had pleaded guilty at an early stage of the 19 proceedings but were prevented from being sentenced due to the procedural issues. 20 This, the 3-moral already given 21 along with allow and delay, should 22 be Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 Page 28 of 34 ```
```html 1 89. Each defendant is entitled to a one-third (1/3) discount on account of the guilty plea, which will be reflected in the sentence finally handed down in respect of each of them. 3 The Sentences Imposed 4 90. I will now turn to the consideration of the appropriate sentence in respect of each defendant because although their culpability is treated as being identical or indistinguishable, their personal circumstances are different. A Social Inquiry Report ("SIR") was obtained by the court concerning each defendant. These SIRs, which now form a part of the record of the court, have been considered. Andre Junior Russell 10 91. Defendant Andre Russell is 34 years old. He has no children but, reportedly, has assumed the role of financial provider for his parents and younger siblings. He claimed to have been carrying the financial burden of his family from a tender age due to illness of his parents. 14 92. He has no previous convictions and is assessed as having a low risk of re-offending. He is described as a productive member of society who does not have any anti-social pattern in his development. He expressed remorse and disappointment at himself. He also indicated that he would change his friends who, he claims, have influenced him to do negative things. 93. The sentence in reference points to a sentence of 4 years as at the appropriate factum. Hence, there is a significant difference in the sentence there. In regard to his relatively favourable antecedent report and low risk of re-offending, I believe that he deserves a sentence that is lower than his co-defendants’. ``` ```latex \begin{table} \begin{tabular}{|c|c|c|} \hline 1 & 89. & Each defendant is entitled to a one-third (1/3) discount on account of the guilty plea, which will be reflected in the sentence finally handed down in respect of each of them. \\ \hline 3 & The Sentences Imposed & \\ \hline 4 & 90. & I will now turn to the consideration of the appropriate sentence in respect of each defendant because although their culpability is treated as being identical or indistinguishable, their personal circumstances are different. A Social Inquiry Report ("SIR") was obtained by the court concerning each defendant. These SIRs, which now form a part of the record of the court, have been considered. \\ \hline Andre Junior Russell & & \\ \hline 10 & 91. & Defendant Andre Russell is 34 years old. He has no children but, reportedly, has assumed the role of financial provider for his parents and younger siblings. He claimed to have been carrying the financial burden of his family from a tender age due to illness of his parents. \\ \hline 14 & 92. & He has no previous convictions and is assessed as having a low risk of re-offending. He is described as a productive member of society who does not have any anti-social pattern in his development. He expressed remorse and disappointment at himself. He also indicated that he would change his friends who, he claims, have influenced him to do negative things. \\ \hline
& The sentence in reference points to a sentence of 4 years as at the appropriate factum. Hence, there is a significant difference in the sentence there. In regard to his relatively favourable antecedent report and low risk of re-offending, I believe that he deserves a sentence that is lower than his co-defendants’. & \\ \hline \end{tabular} \end{table} ``` ```latex \begin{flushleft} Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 \end{flushleft} ``` ```latex \begin{flushright} Page 29 of 34 \end{flushright} ```
```html 1 94. I have arrived at a provisional sentence of 36 months’ (3 years’ ) imprisonment. 2 95. He is entitled to a one-third 1/3 reduction in this sentence on account of his guilty plea. 4 96. The sentence to be imposed on Defendant Andre Russell is 24 months’ (2 years’ ) imprisonment. 6 97. He is to be credited for time spent in custody. 7 Basil Anthony Smith 8 98. Defendant Basil Smith is 45 years old, which makes him the oldest of the group. He has 10 children, 4 of whom are minors. He, reportedly, is the sole provider for 7 of them. According to him, he is unable to feed his family due to inadequate and unstable employment. 12 99. He has one previous conviction in the Cayman Islands for illegal landing in 2010, for which he was sentenced to 3 months’ imprisonment. Illegal landing is, somewhat, similar to the offence for which he is herein charged, being the expression of an intention to enter the Cayman Islands illegally. It is a conviction, which, even, if not such as to aggravate the sentence, is one that puts him in the position that he cannot be treated as having any previous conviction to mitigate his sentence. He has breached the immigration laws of the Cayman Islands and so cannot be treated as a defendant of good will, however as a recent conviction, it cannot move the point. 19 20 It will not be viet being almost a year ago. It will be sentencarti 21 ``` ```latex \begin{table} \begin{tabular}{|c|c|p{12cm}|} \hline 1 & 94. & I have arrived at a provisional sentence of 36 months’ (3 years’ ) imprisonment. \\ \hline 2 & 95. & He is entitled to a one-third 1/3 reduction in this sentence on account of his guilty plea. \\ \hline 4 & 96. & The sentence to be imposed on Defendant Andre Russell is 24 months’ (2 years’ ) imprisonment. \\ \hline 6 & 97. & He is to be credited for time spent in custody. \\ \hline 7 & \textbf{Basil Anthony Smith} & \\ \hline 8 & 98. & Defendant Basil Smith is 45 years old, which makes him the oldest of the group. He has 10 children, 4 of whom are minors. He, reportedly, is the sole provider for 7 of them. According to him, he is unable to feed his family due to inadequate and unstable employment. \\ \hline 12 & 99. & He has one previous conviction in the Cayman Islands for illegal landing in 2010, for which he was sentenced to 3 months’ imprisonment. Illegal landing is, somewhat, similar to the offence for which he is herein charged, being the expression of an intention to enter the Cayman Islands illegally. It is a conviction, which, even, if not such as to aggravate the sentence, is one that puts him in the position that he cannot be treated as having any previous conviction to mitigate his sentence. He has breached the immigration laws of the Cayman Islands and so cannot be treated as a defendant of good will, however as a recent conviction, it cannot move the point. \\ \hline 19 & 20 & It will not be viet being almost a year ago. It will be sentencarti \\ \hline 21 & & \\ \hline \end{tabular} \end{table} ``` ```latex \begin{flushleft} Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 \end{flushleft} ``` ```latex \begin{flushright} Page 30 of 34 \end{flushright} ```
```html 100. Using the sentence of 4 years as the point of reference in treating with his sentence (having balanced the common aggravating factors with the credit allowed for the delay), I have taken into account the responsibility for his dependent minor children and his overall circumstances as a mature man. 101. I have arrived at a provisional sentence of 42 months’ (3 years 6 months’ ) imprisonment. He is entitled to a one-third (1/3) discount on account of his guilty plea. 102. This puts the sentence to be imposed on him at 28 months’ (2 years 4 months’ ) imprisonment. 103. He is to be credited with the time spent in custody. 104. Defendant Kendal Straumann is 31 years old. He indicated the difficulties in finding employment in Jamaica and that his employment had been, primarily, short-term projects. He has had frequent changes in jobs. His most prolonged period of employment has only been two weeks. He has the financial responsibilities for his small family, which includes one child of 5 years old, who has a stomach condition that requires surgery. 105. His reason for involvement in the offence is financial; he was in it for the money. He expressed remorse and stated that he has let down his family and feels ashamed of whae. Like the col hard evidence, there is no hard evidence of this remorse, but there is some weight to his apparent at tachment to his app ation, ever sli tne has donthers, there remorse, but is r1 will on some weig parent con if 106. This Defendant is reported as having no previous convictions, which is a significant mitigating factor in his case. He is assessed as being at a medium risk of re-offending. ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline
& Using the sentence of 4 years as the point of reference in treating with his sentence (having balanced the common aggravating factors with the credit allowed for the delay), I have taken into account the responsibility for his dependent minor children and his overall circumstances as a mature man. \\ \hline
& I have arrived at a provisional sentence of 42 months’ (3 years 6 months’ ) imprisonment. He is entitled to a one-third (1/3) discount on account of his guilty plea. \\ \hline
& This puts the sentence to be imposed on him at 28 months’ (2 years 4 months’ ) imprisonment. \\ \hline
& He is to be credited with the time spent in custody. \\ \hline
& Defendant Kendal Straumann is 31 years old. He indicated the difficulties in finding employment in Jamaica and that his employment had been, primarily, short-term projects. He has had frequent changes in jobs. His most prolonged period of employment has only been two weeks. He has the financial responsibilities for his small family, which includes one child of 5 years old, who has a stomach condition that requires surgery. \\ \hline
& His reason for involvement in the offence is financial; he was in it for the money. He expressed remorse and stated that he has let down his family and feels ashamed of whae. Like the col hard evidence, there is no hard evidence of this remorse, but there is some weight to his apparent at tachment to his app ation, ever sli tne has donthers, there remorse, but is r1 will on some weig parent con if \\ \hline
& This Defendant is reported as having no previous convictions, which is a significant mitigating factor in his case. He is assessed as being at a medium risk of re-offending. \\ \hline \end{tabular} \end{table} ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 \\ \hline \end{tabular} \end{table} ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline Page 31 of 34 \\ \hline \end{tabular} \end{table} ```
```html 107. Having taken into account the adjustment from the starting point, after the common 2 aggravating factors are weighed against the reduction of the 3 months credited for the 3 delay, I will now apply a further discount in the sentence on account of his favourable 4 antecedent report. These favourable circumstances include the absence of previous 5 convictions, his contrition, his responsibility for a minor child, and his efforts at 6 making use of educational opportunities, while in pre-sentence incarceration. 7 108. I form the view that a provisional sentence of 40 months (3 years 4 months) 8 imprisonment would be appropriate. 9 109. He is to be given full credit for the guilty plea, which reduces this sentence by one- 10 third (1/3). 11 110. His sentence shall be 26 months’ (2 years’, 2 months’ ) imprisonment. 12 111. He is to be credited for time spent in custody. 13 112. Defendant Martin Trench is 32 years old. He has had previous encounters with the 14 criminal justice system of the Cayman Islands. He was deported. He has six previous 15 convictions recorded against him, including convictions for possession and 16 consumption of ganja, as well as immigration offences. It is also shown that in the 17 past, he had committed other offences while on a suspended sentence. He has been 18 assess risk of re-ch adversely said 19 sed at a highffending, wirt from the 20 hichther 21 Sentence Judgment. R v. Russell (Andre Junior), Smith (Basil Anthony), Straumann (Kendal Jerome), Trench (Martin Antonino). Ind. 54/19 Coram: McDonald-Bishop J. (Actg.). Date: 10.09.2019 ```
```html 113. There are a few factors that could increase the probability of recidivism, including his non-compliance with previous court orders. He explains his involvement in the commission of the offence as a consequence of his indebtedness and unfortunate economic circumstances in Jamaica. 114. Having applied the common aggravating factors, which cause an upward adjustment to the starting point and the 3 months credited on account of the delay, I will commence his sentence by starting at the sentence of 48 months (4 years) imprisonment. 115. This Defendant's previous convictions are not treated as relevant or recent to aggravate the sentence. His history of non-compliance with previous sentences, however, cannot be ignored within the context of the high risk of re-offending or high probability of recidivism - an evaluation recorded in the SIR. Failure to comply with previous sentences is an aggravating factor that the court ought to take into account. 116. He has, however, expressed some remorse, albeit not backed by any hard evidence of genuineness on his part, such as cooperation with the authorities, to warrant any marked adjustment to the starting point. I, nevertheless, take his expression of regret into account and the fact that he is exhibiting positive signs while on remand, such as pursuing educational opportunities. The reason proffered of financial difficulty, which led to the commission of the offence, is not accepted as a mitigating factor. 117. When the aggravating and mitigating factors are balanced and having had due regard to his provisional months (4 years) seems proportionate 481. 119. This leads to a sentence of 32 months' (2 years 8 months') imprisonment. ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline
& There are a few factors that could increase the probability of recidivism, including his non-compliance with previous court orders. He explains his involvement in the commission of the offence as a consequence of his indebtedness and unfortunate economic circumstances in Jamaica. \\ \hline
& Having applied the common aggravating factors, which cause an upward adjustment to the starting point and the 3 months credited on account of the delay, I will commence his sentence by starting at the sentence of 48 months (4 years) imprisonment. \\ \hline
& This Defendant's previous convictions are not treated as relevant or recent to aggravate the sentence. His history of non-compliance with previous sentences, however, cannot be ignored within the context of the high risk of re-offending or high probability of recidivism - an evaluation recorded in the SIR. Failure to comply with previous sentences is an aggravating factor that the court ought to take into account. \\ \hline
& He has, however, expressed some remorse, albeit not backed by any hard evidence of genuineness on his part, such as cooperation with the authorities, to warrant any marked adjustment to the starting point. I, nevertheless, take his expression of regret into account and the fact that he is exhibiting positive signs while on remand, such as pursuing educational opportunities. The reason proffered of financial difficulty, which led to the commission of the offence, is not accepted as a mitigating factor. \\ \hline
& When the aggravating and mitigating factors are balanced and having had due regard to his provisional months (4 years) seems proportionate 481. \\ \hline
& This leads to a sentence of 32 months' (2 years 8 months') imprisonment. \\ \hline \end{tabular} \end{table} ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline
& There are a few factors that could increase the probability of recidivism, including his non-compliance with previous court orders. He explains his involvement in the commission of the offence as a consequence of his indebtedness and unfortunate economic circumstances in Jamaica. \\ \hline
& Having applied the common aggravating factors, which cause an upward adjustment to the starting point and the 3 months credited on account of the delay, I will commence his sentence by starting at the sentence of 48 months (4 years) imprisonment. \\ \hline
& This Defendant's previous convictions are not treated as relevant or recent to aggravate the sentence. His history of non-compliance with previous sentences, however, cannot be ignored within the context of the high risk of re-offending or high probability of recidivism - an evaluation recorded in the SIR. Failure to comply with previous sentences is an aggravating factor that the court ought to take into account. \\ \hline
& He has, however, expressed some remorse, albeit not backed by any hard evidence of genuineness on his part, such as cooperation with the authorities, to warrant any marked adjustment to the starting point. I, nevertheless, take his expression of regret into account and the fact that he is exhibiting positive signs while on remand, such as pursuing educational opportunities. The reason proffered of financial difficulty, which led to the commission of the offence, is not accepted as a mitigating factor. \\ \hline
& When the aggravating and mitigating factors are balanced and having had due regard to his provisional months (4 years) seems proportionate 481. \\ \hline
& This leads to a sentence of 32 months' (2 years 8 months') imprisonment. \\ \hline \end{tabular} \end{table} ```
```html 1 120. He is to be credited with time spent in custody. 2 Disposal 3 121. In summary, the sentences imposed on the defendants are as follows: 4 i. Andre Junior Russell：24 months’ (2 years’ ) imprisonment; 5 ii. Basil Anthony Smith：28 months’ (2 years 4 months’ ) imprisonment; 6 iii. Kendal Jerome Straumann：26 months’ (2 years 2 months’ ) imprisonment; 7 iv. Martin Anthony Trench：32 months’ (2 years 8 months’ ) imprisonment. 8 122. They are all to be credited with time spent in custody to date. 9 123. It is recommended that the defendants be deported at the end of serving their sentences. 10 Application for forfeiture of the vessel 11 124. The prosecution has applied, pursuant to s.25(2) of the Misuse of Drugs Law, for the 12 vessel on which the defendants were found with the controlled drug to be forfeited to 13 the Crown. There was no objection to this application from the defendants. 14 125. It is ordered that the vessel used by the defendants in the commission of this offence be 15 forfeited to the Crown. ted this the ber 2019 16 Da10th Septem 17 McDonald-Bishop J 18 Acting Judge of the Grand Court Sentence Judgment. R v. Russell (Andre Junior)，Smith (Basil Anthony)，Straumann (Kendal Jerome)，Trench (Martin Antonino). Ind. 54/19 Coram：McDonald-Bishop J. (Actg.). Date：10.09.2019 Page 34 of 34