Sheena Minzett v R

¶ ```html IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 5 OF 2009 SCA No. 8/08 C# 1699/07 BETWEEN: SHEENA MINZETT Appellant and HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK P. THE HON. MR. JUSTICE MOTTLEY J.A. THE HON. MR. JUSTICE VOS J.A. Reasons for Judgment delivered orally on 2 September 2009 APPEARANCES: Mr. J. Furniss for the Appellant Mr. T. Ward for the Respondent ```
```html 1 THEIR LORDSHIPS' RULING 2 3 The Honourable Justice Vos 4 5 Introduction 6 7 Sheena Annie-May Minzett seeks leave to 8 appeal for a second time against a sentence of 9 four years' imprisonment imposed upon her for 10 the offence of importation of 964 pounds of 11 ganja contrary to section 3(1)(a) of the Misuse 12 of Drugs Law (2000 Revision) after a not guilty 13 plea. 14 The circumstances were that at 2 a.m. on 15 the eighth of February 2007 a vessel was 16 sighted in the vicinity of an area near the 17 reef of the Morritts channel. The police 18 helicopter was dispatched and sighted a 19 'go-fast' vessel， the Mount Zion， heading west 20 on the North Side of the island. The 21 licopted the 22 he pursued 23 she shielded her face from the helicopter with 24 clothing. A marine unit vessel， The Protector， 25 joined the chase and police observed numerous Minzett v. R. 02/09/09 (c.a.r.) ```
```html 1 packages being thrown overboard by all the 2 persons on board the Mount Zion. The Protector 3 then intercepted the Mount Zion, disabling her, 4 before she capsized. The appellant and four 5 male suspects were taken to Central Police 6 Station. 7 At daybreak，on the eighth of 8 February 2007，the North Side beach was 9 searched and quantity of packages containing 10 marijuana was recovered. There was evidence， 11 that the packages thrown overboard would have 12 drifted in that direction. 13 On the tenth of February 2007，the 14 appellant was interviewed and admitted going 15 out on the Mount Zion knowing that she was to 16 meet another boat to collect marijuana from 17 Jamaica. She identified a number of the 18 recovered packages as having been aboard the 19 Mount Zion. The appellant said that she had 20 only gone along because her friend，Roberto 21 den Jacks drun 22 Alson，was 23 Rodney Jackson，who was Roberto Jackson's 24 brother. 25 The street value of the marijuana involved ```
```html 1 in these events would have been very high 2 indeed, although neither the Crown nor defence 3 counsel have been able to give us a precise 4 figure. 5 The appellant's trial took place before 6 Magistrate Grace Donalds. It spanned seven 7 days ending with a guilty verdict on the 8 thirty-first of January 2008. In reaching her 9 conclusion the Magistrate said this about the 10 defendant Minzett: 11 Defendant Minzett gave an 12 interview under caution in which 13 she admitted that whilst at 14 Morgan's Harbour she knew that 15 the purpose of the trip was to 16 collect drugs. 17 Mr. Furniss, on behalf of the 18 defendant Minzett, relied on an 19 interview in which the defendant 20 stated that she attempted to 21 1911 22 venteoisea b 23 of her co-accused. Mr. Furniss 24 also submitted that defendant 25 Minzett was not specifically ```
```html 1 identified nor named as one of 2 the persons dumping items 3 overboard. He further submitted 4 that there was no evidence of 5 defendant Minzett being actually 6 involved in the navigation or 7 movement of the vessel Mount 8 Zion, however there was evidence 9 that defendant Minzett was one 10 of the persons attempting to 11 disguise her identity with 12 clothing. Having admitted to 13 knowing that the purpose of the 14 trip was to collect drugs and， 15 despite that knowledge， 16 defendant Minzett still chose to 17 go along to assist in this 18 illegal enterprise. This is 19 evidence from which the Court 20 can infer the defendant Minzett 21 rticip pa： 22 th ful：dgis en： led inte e fact 23 and was accordingly a willing 24 participant in this illegal 25 enterprise. This Court finds ``` ```latex \textbf{Ruling -- Vos J.A.} \begin{enumerate} \item identified nor named as one of \item the persons dumping items \item overboard. He further submitted \item that there was no evidence of \item defendant Minzett being actually \item involved in the navigation or \item movement of the vessel Mount \item Zion, however there was evidence \item that defendant Minzett was one \item of the persons attempting to \item disguise her identity with \item clothing. Having admitted to \item knowing that the purpose of the \item trip was to collect drugs and, \item despite that knowledge, \item defendant Minzett still chose to \item go along to assist in this \item illegal enterprise. This is \item evidence from which the Court \item can infer the defendant Minzett \item and was accordingly a willing \item participant in this illegal \item enterprise. This Court finds \end{enumerate} ``` ```html 22 th ful：dgis en： led inte e fact 23 and was accordingly a willing 24 participant in this illegal 25 enterprise. This Court finds ``` ```latex \textbf{Ruling -- Vos J.A.} \begin{enumerate} \item identified nor named as one of \item the persons dumping items \item overboard. He further submitted \item that there was no evidence of \item defendant Minzett being actually \item involved in the navigation or \item movement of the vessel Mount \item Zion, however there was evidence \item that defendant Minzett was one \item of the persons attempting to \item disguise her identity with \item clothing. Having admitted to \item knowing that the purpose of the \item trip was to collect drugs and, \item despite that knowledge, \item defendant Minzett still chose to \item go along to assist in this \item illegal enterprise. This is \item evidence from which the Court \item can infer the defendant Minzett \item and was accordingly a willing \item participant in this illegal \item enterprise. This Court finds \end{enumerate} ``` ```html 22 th ful：dgis en： led inte e fact 23 and was accordingly a willing 24 participant in this illegal 25 enterprise. This Court finds ``` ```latex \textbf{Ruling -- Vos J.A.} \begin{enumerate} \item identified nor named as one of \item the persons dumping items \item overboard. He further submitted \item that there was no evidence of \item defendant Minzett being actually \item involved in the navigation or \item movement of the vessel Mount \item Zion, however there was evidence \item that defendant Minzett was one \item of the persons attempting to \item disguise her identity with \item clothing. Having admitted to \item knowing that the purpose of the \item trip was to collect drugs and, \item despite that knowledge, \item defendant Minzett still chose to \item go along to assist in this \item illegal enterprise. This is \item evidence from which the Court \item can infer the defendant Minzett \item and was accordingly a willing \item participant in this illegal \item enterprise. This Court finds \end{enumerate} ```
```html 1 that defendant Minzett was in 2 possession and control of the 3 drugs with the requisite 4 knowledge. 5 The appellant was sentenced on the 6 thirty-first of January 2008 to four years' 7 imprisonment， time spent in custody to be taken 8 into account. 9 The appellant's appeal against the 10 sentence to Mr. Justice Henderson was dismissed 11 on the sixth of March 2009. On the 12 twenty-first of August 2009， Mr. Justice 13 Henderson gave reasons for his decision 14 culminating in the observation that the 15 sentence imposed upon Ms. Minzett was not 16 excessive and， if anything， was somewhat on the 17 low side. 19 Grounds of Appeal 20 22ain to t at age se to a ppellant ineks leap on th 21 The a now his Coura sentence 22 se st herepeal 23 grounds that the sentence was "manifestly 24 excessive in particular co-accused in similar 25 circumstances received only two years against ``` ```latex \textbf{Ruling -- Vos J.A.} \begin{enumerate} \item that defendant Minzett was in possession and control of the drugs with the requisite knowledge. \item The appellant was sentenced on the thirty-first of January 2008 to four years' imprisonment, time spent in custody to be taken into account. \item The appellant's appeal against the sentence to Mr. Justice Henderson was dismissed on the sixth of March 2009. On the twenty-first of August 2009, Mr. Justice Henderson gave reasons for his decision culminating in the observation that the sentence imposed upon Ms. Minzett was not excessive and, if anything, was somewhat on the low side. \item \textbf{Grounds of Appeal} \item The appellant now grounds that the sentence was "manifestly excessive in particular co-accused in similar circumstances received only two years against Minzett v. R. 02/09/09 (c.a.r.) \end{enumerate} ```
```markdown # Ruling -- Vos J.A.

¶ [1] my four years." The co-accused to whom she is

¶ [2] referring was Roberto Alden Jackson. But Mr.

¶ [3] Furniss now accepts, in his oral submissions to

¶ [4] the Court, that the four-year sentence, as

¶ [5] imposed below, was not, based on the

¶ [6] authorities, manifestly excessive, bearing in

¶ [7] mind the quantity of ganja involved. Instead,

¶ [8] Mr. Furniss relies on a letter dated the

¶ [9] first of April 2009, and only now placed before

¶ [10] the Court, from Detective Superintendent K.

¶ [11] Walton addressed to the Cayman Islands Parole

¶ [12] Board and Mr. Furniss himself. The letter

¶ [13] includes the following:

¶ [14] Ms. Minzett was one of five

¶ [15] persons arrested, charged and

¶ [16] convicted for importation of

¶ [17] ganja during an operation

¶ [18] code-named Boomer in

¶ [19] February 2007. She was

¶ [20] apprehended whilst on board a

¶ [21] local car

¶ [22] was convicted after trial and

¶ [23] subsequently sentenced to four

¶ [24] years' imprisonment. She is Minzett v. R. 02/09/09 (c.a.r.) ```
```html 1 currently an inmate in Her 2 Majesty's Fairbanks Prison. 3 During the initial stages of the 4 investigation new information 5 came to light that allowed the 6 investigators to take a fresh 7 path. This information was as a 8 direct result of Miss Minzett 9 providing same verbally, as well 10 as committing to a written 11 witness statement. This 12 ultimately led to a six [sic] 13 arrest of Jarred Daniels who was 14 subsequently convicted with 15 being concerned with the 16 importation of drugs offence. 17 Although Ms. Minzett did not 18 give evidence during the trial 19 on behalf of the prosecution， I 20 believe that it is only fitting 21 acknow 22 to hedge t a and 23 e info and 24 evidence that ultimately led to 25 the arrest of Jarred Daniels. Had it not been for her initial ``` ```latex \section{Ruling -- Vos J.A.} currently an inmate in Her Majesty's Fairbanks Prison. During the initial stages of the investigation new information came to light that allowed the investigators to take a fresh path. This information was as a direct result of Miss Minzett providing same verbally, as well as committing to a written witness statement. This ultimately led to a six [sic] arrest of Jarred Daniels who was subsequently convicted with being concerned with the importation of drugs offence. Although Ms. Minzett did not give evidence during the trial on behalf of the prosecution, I believe that it is only fitting to acknowledge that she provided the information and evidence that ultimately led to the arrest of Jarred Daniels. Had it not been for her initial ```
```html 1 evidence, the investigations may 2 not have discovered Daniels' 3 involvement. 4 So it appears that the information that 5 the appellant gave allowed the police to 6 identify Jarred Daniels which ultimately led to 7 the investigation against him, even though he 8 had not been on the boat at the relevant time. 9 We are told that this was not known to the 10 Magistrate or to Mr. Justice Henderson. What, 11 however, was known to the Magistrate and to Mr. 12 Justice Henderson was that Minzett had signed a 13 statement containing notes of an interview in 14 which she had answered questions concerning 15 Jarred Daniels and identified him to police. 16 Based on this letter alone, Mr. Furniss now 17 seeks to argue that the sentence was in fact 18 manifestly excessive. 19 20 The Appellant's Record 21 22 It ap hat thar 22 e een 23 pears tl it has 24 appell b 25 convicted on several separate occasions of various offences, mostly involving drugs. She received nine months' imprisonment for dealing ```
```html 1 in ganja on the fifteenth of May 2003 and a 2 twelve-month probation order was made on the 3 ninth of June 2005 for further drug offences. 4 5 Discussion 6 7 This was a serious offence of importing 8 drugs. The amount was huge and the exercise 9 was clearly carefully planned. The transcripts 10 of the summary trial do not support the 11 appellant's suggestion that she was only 12 peripherally involved. The Magistrate plainly 13 found that she was a willing and knowing 14 participant in the importation venture. 15 In Hurlston v. R. [1986] CILR 93， a 16 sentence of three years was approved by the 17 Court of Appeal on a guilty plea for 18 possession， where profit was intended， of 19 324 pounds of ganja. The Court emphasized the 20 relevance of the quantity of the ganja to the 22 In Hy R [2000 se： lton v. 257， M 21 ntence. CILR. 23 Justice Douglas said that a starting point of 24 four and a half years for the 'mover and 25 shaker' in the importation of 1600 pounds of ```
```html 1 ganja did not reflect the gravity of the 2 offence or the need for deterrence in 3 sentencing. In the result, the defendant's 4 three and a half years, taking into account his 5 guilty plea, was not disturbed, though his 6 sentence was ordered to run concurrently with 7 other sentences. 8 Though there is no sentencing guideline 9 for ganja importation, the maximum sentence on 10 a second or subsequent sentence for this 11 offence involving more than one pound of the 12 drug is fifteen years under section 16(3) of 13 the Misuse of Drugs Law (2000 Revision). 14 Plainly the quantities here were hugely in 15 excess of the minimum amount attracting this 16 maximum possible sentence. Whilst the 17 appellant's offending was not the most serious 18 imaginable of this kind, it was very serious 19 indeed and involved a large quantity. In these 20 circumstances, we entirely agree with Mr. 21 stic eHe that 22 2s on the de，par of fs Junderson rt senterou wa：low since ，as s 23 pleaded not guilty. This can be seen from a 24 comparison with the cases we have mentioned. 25 We do not believe that the letter referred ```
```html 1 to by Mr. Furniss on behalf of the appellant 2 would have made any difference to the 3 Magistrate. The Magistrate knew that Minzett 4 had said in her interview, honestly, that 5 Jarred Daniels had been involved. She had not, 6 however, deliberately or specifically 7 implicated him in order to assist police in 8 other ways with their inquiries. 9 This brings us to consider the comparison 10 with Roberto Jackson's sentence. Jackson had a 11 significantly less serious record than the 12 appellant. He had no previous convictions for 13 dealing in drugs. Where a co-defendant's 14 sentence is reduced because he has better 15 mitigation， there is no reason to allow the 16 defendant with less mitigation to take 17 advantage of the co-defendant's better 18 position. See the Attorney-General's Reference 19 Number 62， 63 and 64 of 1995. R. v. O'Halloran 20 [1996] 2 Cr.App.R. 223 at 227. 21 In ouent， a 22 ght to h 1 adoptharting 23 offence bearing in mind the large quantities， 24 the planning that must have been involved in 25 the offence (even if not by her)， and the ```
```html 1 maximum sentence of fifteen years. We note 2 that under section 9(3) of the Court of Appeal 3 Law (2006 Revision) we have the power, if we 4 consider that a different sentence ought to 5 have been passed, to quash the sentence imposed 6 below and impose that other sentence. We may, 7 therefore, in an appropriate case, increase a 8 sentence on a defendant's appeal. In our view, 9 a sentence of five to six years was justified 10 on a not guilty plea in the circumstances of 11 this case. 12 The appellant has been imprisoned since 13 she was sentenced by the Magistrate on the 14 15th of March 2008. In that time she has 15 prosecuted two appeals, both of which we 16 consider to have been hopeless. 17 We are concerned that convicted defendants 18 in these islands seem to be making a practice 19 of pursuing not one, but two, appeals against 20 sentence, seemingly on the basis that there is 21 thing ty so d 22 appropri all bust is pra; 23 circumstances and should be discouraged. 24 Having been told once by Mr. Justice Henderson 25 that her sentence was on the low side, as it ```
```html 1 undoubtedly was， she ought not to have 2 considered making this application for leave to 3 mount another appeal. Before this appeal came 4 on， we warned the appellant through her counsel 5 that the Court had the power under section 9(3) 6 to increase as well as to reduce a sentence， 7 but she decided after receiving advice to 8 proceed. 9 In these circumstances， we would normally 10 have been minded to impose the sentence that we 11 regard as a proper one for the offence that the 12 appellant committed. As I have said， that 13 sentence would have been a term of imprisonment 14 of between five and six years. We have， 15 however， considered whether， in the special 16 circumstances of the case， that is an 17 appropriate course on this occasion. We have 18 formed the view that， because of two very 19 specific matters， it would not be appropriate 20 to increase the sentence from what was passed 21 the Mag. The 22 at have l our <aircum 22 by istrate. depecialst：t， tha 23 other co-defendants have received sentences of 24 four years in similar circumstances to those of 25 the appellant， and， secondly， the Crown has not ```
```html 1 seen fit to appeal that sentence, 2 notwithstanding the submissions made by Mr. 3 Ward as to its inadequacy. 4 In these circumstances, if we were, 5 notwithstanding the inadequacy of the four-year 6 term, to increase that term now, the appellant 7 might be left with a justifiable sense of 8 grievance about her having had a significantly 9 heavier sentence than her equally culpable 10 co-accuseds. 11 We would like to make it clear, however, 12 that future appellants should be aware of the 13 real possibility of sentences being increased 14 on appeal if this Court forms the view that the 15 sentences passed below were too light. 16 For all those reasons, therefore, we take 17 the view that the appeal should be disposed of 18 in this way. The appellant should be granted 19 leave to appeal and the appeal should be 20 dismissed and we should affirm the term of 21 prisonm our ye 22 unt agai sente in cu 22 im ent of f. ncs，tirst 23 In conclusion, we would only want to make 24 this clear, that the appellant has been 25 fortunate on this occasion not to have her ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sentence increased. Indeed, she was fortunate before the Magistrate and before Mr. Justice Henderson that she did not receive a longer sentenced. This was a serious offence involving very large quantities of ganja and something which this Court believes should be understood to be something that will be visited with longer terms of imprisonment in future cases. MR. JUSTICE CHADWICK：So the appeal is dismissed. The sentence of four years is confirmed. Time spent in custody to be taken into account. REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability，dated the 4th day of September 2009. CAROL ROUSE ``` ```latex \section{Ruling -- Vos J.A.} \begin{enumerate} \item sentence increased. Indeed, she was fortunate \item before the Magistrate and before Mr. Justice \item Henderson that she did not receive a longer \item sentenced. This was a serious offence involving \item very large quantities of ganja and something \item which this Court believes should be understood \item to be something that will be visited with \item longer terms of imprisonment in future cases. \item MR. JUSTICE CHADWICK: So the appeal is \item dismissed. The sentence of four years is \item confirmed. Time spent in custody to be taken \item into account. \end{enumerate} \section*{REPORTER'S CERTIFICATE} Certified correct to the best of my skill and ability, dated the 4th day of September 2009. CAROL ROUSE