Field JA, Morrison JA, Newman JA
```markdown # IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS ## CRIMINAL APPEAL 30/2014 (Ind. 48/14) C#02192/2014 ## BETWEEN: - **HER MAJESTY THE QUEEN** (Respondent) - **Kenecia M Millwood** (Appellant) ## BEFORE - The Hon Sir George Newman, Justice of Appeal - The Hon Sir Richard Field, Justice of Appeal - The Hon (Cecil) Dennis Morrison, Justice of Appeal ## Appearances: - Patrick Moran DPP/Amelia Fosuhene (Brady Law) for the appellant. ## JUDGMENT Revised from transcript of oral judgment given on 1 September 2016 and Approved Released 7 November, 2016 ## The Honourable Dennis Morrison, JA On the 25th 2014, after the Grand Jury and a warrant was issued by the Court before a trial fore Mandate, the appellant was convicted at the trial of drug trafficking in section 3 of the Misuse of Drugs Act 2014. After a sentencing at the end of the trial, the appellant was sentenced to 12 years' imprisonment. The court also ordered that the time spent in custody by the appellant pending trial should be taken into account. The appellant has appealed against the sentence imposed by the judge on the ground that it is manifestly excessive. Specifically, the ```
The document discusses an appeal where the appellant complains about the starting point chosen by the judge in determining the appropriate sentence. The case involves the importation of cocaine. Here are the key points from the document:
**Facts of the Case:** - The appellant arrived at the Owen Roberts International Airport on 21 April 2014, on a Cayman Airways flight from San Andres, Colombia. - Upon investigation, three hammocks were found to contain cocaine concealed within the wooden ends used to support them. - The amount of cocaine involved was 6.28 pounds or 2.86 kilograms. - The appellant was arrested and cautioned on suspicion of importation and possession of cocaine, and she was formally charged with importation of cocaine the following day.
**Maximum Sentence:** - The maximum sentence prescribed under Schedule 2 of the Law upon conviction before the Grand Court for the offence of importation of cocaine is 35 years' imprisonment and an unlimited fine. - The judge considered the contents of the social inquiry report, the Statement and Tariffs and Guidelines for Sentencing for certain offences issued by the Honourable Chief Justice on 16 January 2002 (the Chief Justice's guidelines), and the Definitive Guideline for Drug Offences issued by the UK Sentencing Council and revised in 2012 (the UK guideline). - The judge also had before her psychiatric and psychological reports submitted on the appellant's behalf. - The social inquiry report indicated that the appellant was 24 years old at the time of the offence and had no previous convictions. However, it detailed a long personal history of significant mitigation, which is not necessary to rehearse for the purposes of this judgment.
**Chief Justice's Guidelines:** - The relevant guideline indicates that 15 years or more will be imposed where the offence involves "substantial importation or dealing in anyway either in powder or crack cocaine." - "Substantial importation" is defined as "any importation involving a quantity of cocaine of 1 kilogram or more." - The guideline states that there should be a substantial discount on sentence for those offenders who are prepared to cooperate with the police in their inquiries. This summary captures the essential information from the document, focusing on the facts of the case, the legal framework, and the considerations leading to the sentence determination.
Lastly, we will mention the UK guideline, which indicates that, for a person playing a lesser role in the importation of one to five kilograms of cocaine, the usual starting point should be eight years' imprisonment, in a range of six to nine years. The UK guideline seeks to identify different levels of culpability in offending by differentiating between leading, significant and lesser roles.
All of this material was before the judge, who accepted that the appellant's role could be considered, as was urged on her behalf, to be a lesser role. The judge also took into account the various matters detailed in the report, the appellant's age, lack of any history of any previous offending and health issues. However, the judge considered the amount of cocaine involved to be substantial and regarded the sophisticated manner of its concealment to be an aggravating factor. The judge accordingly considered that the starting point should be 17 years and, taking all the relevant factors into account, she determined that the appropriate sentence should be 12 years' imprisonment.
For the appellant, Miss Fosuhene submits that the sentence is manifestly excessive because the judge's starting point was too high, based on the Chief Justice's guidelines and the substantial mitigation placed before the judge on the appellant's behalf. She points out that, although the Chief Justice's guidelines refer to a starting point of 15 years for substantial importation of drugs, they do not differentiate between the differing roles played in importation. In this regard, in her printed submissions, Miss Fosuhene draws our attention in particular to the judgment of Hughes LJ in R v Christiana Boakye & Ors [2012] EWCA Crim 838 (para 3), which emphasises that the culpability of persons coming within the generic description of courier may vary from case to case: "At its simplest there are those who are exploited or oppressed by others, and there are those who engage voluntarily in the couriering of drugs, are in it for the money and have the freedom to make the decision. There are many other gradations of culpability which it is unnecessary at present to attempt to sketch." On this basis, Miss Fosuhene submits that, in all the circumstances of this case, a point of would have been appropriate.
For the Crown, Mr Moran submits that the judge had regard to all the relevant factors, in particular to the Chief Justice's guidelines, and that, given the substantial amount of cocaine involved, a starting point of 17 years cannot be said to have been excessive. Mr Moran has been careful to make the point that if
Sentencing Decision Analysis In considering the submissions, we start by reaffirming the court's awareness of the difference between levels of sentencing in drug offences in this jurisdiction and in England and Wales. It is indeed for this reason that it is common ground on the appeal that the applicable guidelines are the Chief Justice's guidelines and not the UK guideline. However, it is in our view important to emphasise that the Chief Justice's guidelines are, as they indicate, simply guidelines. It is, therefore, necessary for the judge in a case like this to have regard to the whole of the case before her, including the amount of drugs involved, and all the other circumstances of the case. It is essentially a discretionary exercise in which case several factors will inevitably come into play. In this case, we are quite unable to say, as Mr Moran hinted that we might, that the judge erred in anyway in assessing the appellant's role in this offence as being a lesser role. In our view, the evidence on which Mr. Moran particularly relied for this purpose is not at all inconsistent with the view that the role was a lesser role. We have taken into account in dealing with the matter in this way the fact that the sentencing was done by the trial judge, who had heard all the evidence after a contested trial. We therefore, approach the matter on the same basis as the judge did. Having said that, we remain of the view that the role in the importation was a lesser role; we would have thought that the minimum starting point of 15 years laid down by the Chief Justice's guidelines would have been more appropriate. In these circumstances, notwithstanding our natural reluctance to interfere with the judge's obviously careful exercise of her discretion, we would have preferred to have imposed a sentence of 15 years.
```html sentencing discretion, we consider that the judge erred in principle in choosing a starting point above the minimum. For these reasons, we think that, applying a starting point of 15 years, mitigated by the factors taken into account by the judge, a sentence of 10 years' imprisonment would have been appropriate in this case. Accordingly, the appeal is allowed, the sentence imposed by the judge is set aside, and a sentence of 10 years' imprisonment is substituted therefor. ``` ```latex \begin{table} \begin{tabular}{|c|} \hline sentencing discretion, we consider that the judge erred in principle in choosing a starting point above the minimum. For these reasons, we think that, applying a starting point of 15 years, mitigated by the factors taken into account by the judge, a sentence of 10 years' imprisonment would have been appropriate in this case. Accordingly, the appeal is allowed, the sentence imposed by the judge is set aside, and a sentence of 10 years' imprisonment is substituted therefor. \\ \hline \end{tabular} \end{table} ``` ```latex \begin{table} \begin{tabular}{|c|} \hline Newman, JA \\ \hline Field, JA \\ \hline Morrison, JA \\ \hline \end{tabular} \end{table}