Douglas J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## HOLDEN AT GEORGE TOWN, GRAND CAYMAN **CRIMINAL CASE NOS. 2371/99, 2482/99, 2385/99 AND 2357/99** **Devon Washington Hylton** **vs.** **Regina** **Ms. Cheryl Richards for the Crown** **Mr. Howard Hamilton Q.C. for Defendant.** --- ## RULING In this appeal, both prosecution and defendant have appealed against the sentence handed down by the learned magistrate. Both matters were heard at the conclusion of the hearing. I ruled that the method of sentencing was wrong, and accordingly increased the time to be served by the appellant. This writ was filed in response to a request by learned Crown Counsel. On 8 October 1999, Devon Hylton, who had been convicted in the Summary Court on three drug-related charges, and sentenced to a total of five and a half years, filed a Notice of Intention to Appeal. This contained two grounds that are as follows:
That the sentence is harsh and excessive. ```
```markdown (2) That this operation was orchestrated by others and due to financial hardship, I was forced into doing what I did. On September 24th, 1999, the Crown filed a Notice of Intention to Appeal the sentence handed down by the Learned Magistrate in these charges. The grounds of appeal which are as follows: 1. That the sentence imposed by the Magistrate against the defendant were wrong in principle, and unduly lenient, and that she failed to give due regard to the sentencing principles in the U.K. and in Cayman for offences of this nature which involved a major operation to import drugs into the Cayman Islands.
That she failed to give due regard to the aggravating circumstances detailed in the case, and to the deterrent aspect of sentencing necessary in cases of this nature. The charge numbers listed in the heading of this ruling all relate to the importation of drugs. There were three separate incidents for which he was sentenced, two for actual importation, and the other for an attempt. It is submitted by Learned Crown Counsel that seldom have we come across a case of such a magnitude. Indeed, the facts reveal a large operation of importation of ganja into Cayman from where it was to be transported to the United States. In March 1999, the Appellant met with undercover agents and stated that he wanted to import 200 lbs. of ganja to sell locally. The officers agreed to assist with the importation for a fee. The meeting ```
```markdown # Transcription of the Document --- **On Wednesday 7th April 1999** The Appellant was taken to the airport from what felt like a ported to Jamaica. The Appellant informed the officer that he was tape-recorded and the Appellant was taken to the airport from what felt like a ported to Jamaica on a canoe with 280lbs of ganja. Arrangements were again made with the Appellant to return to Jamaica. Negotiations continued with him by telephone, which the Appellant agreed to bring US$10,000 in front money. On the 4th of the month, he informed the officers that the vessel was on its way. The vessel was found on board. When the officers spoke to the Appellant on May 7th, 1999, the vessel appeared in Little Cayman. The Appellant informed the officers that he had dumped 1600lbs of ganja overboard because they were chased and did replace the vessel on the south side of Grand Cayman. 1400lbs of ganja subsequently seized by an ashore in Cayman Brac. --- **On Saturday 29th May** Further negotiations were carried out with a vessel arriving here, and the officers acting in an undercover capacity escorted regally to Frank Sound. Other officers met the vessel at the beach and the Appellant waymert the vessel from the area and taken to Sunset Hotel. He handed the officer $4000 as part removseler the transshipment of the ganja. The men on the vessel were arrested and remained in custody while a further undercover operation continued to unfold in the USA. Contact was made with the criminals in Florida through the Appellant and arrangements were made to deliver the ganja. The officers then traveled to Florida where a controlled delivery of the 1600lbs of ganja was made. Immediately upon the arrest of the US criminals Hylton was arrested at his hotel. He made no comments when interviewed. ```
```markdown # At the trial of Hylton and the other men which took place in the Summ ½ av 29th August 1999, Hylton pleaded guilty to the three charges. In sentencing Hylton, the Learned Magistrate said, “I note that he was the mover and shaker of these transactions. However, given the circumstances of these transactions, I consider it appropriate to give him the maximum sentence on each offence, which is 7 years.” In order to clearly see the Learned Magistrate’s thought process, I am making a summary of the relevant extract of her Reason for Sentence. --- ### With respect to the Importation involving over 180lbs of ganja: - **Charge 2371/99**: The Magistrate imposed a sentence of 2 years. - **Charge 2385/990 (relating to 4-4 10lbs of ganja)**: The Magistrate stated that, had he been found guilty after a trial, the starting point for this offence would have been 3 years. In light of his guilty plea, the Magistrate considered the appropriate sentence to be 3 ½ years. - **Charge 2482/99 (Attempted Importation)**: The Magistrate sentenced the defendant to 2 years imprisonment, with 1 year being concurrent to charge 2371/99. Finally, with respect to charge 2385/99, the sentence of the Court is 3 ½ years. --- ### Time spent in custody: The time spent in custody is to be deducted from the total sentence of 5 years, and the defendant is recommended for deportation. ```
```markdown I will first deal with the issues contained in ground one of this appeal. Herof mbniid Magistrate for some reason known to her determined the maximum sentence much regard for the legal maximum or the quantity of the drug involved shows that she was fully aware of the seven years maximum. Ignoring The Legal guidelines she went ahead and fixed her own, then proceeded to give des the basis of his guilty pleas. Not satisfied with this she went further and rantsid. Her Jices partially concurrent. Importation of drug is in any jurisdiction a serious offence. Long before liscou considered as serious an offence as we now do, the legislators set the m the ser bor a first offence at 7 years. Indeed, many of the older cases demonstrate the sommaximum ent approach taken by the courts in those old days. This approach has chant l'e it becassing years and the necessity of the times. As far as Hytton's First offence, chinged witter 23 71/99 is concerned, the Learned Magistrate cannot be criticized for degenu mewhats years to be the appropriate sentence. On this she gave him a discount in and semina third of what she considered to be the appropriate sentence for pleading guilt excess larilar discounts on the other charges. Learned Counsel for the Appellant argues that tty, e is no principle that the strength of the prosecution's case can abrogate a guilty plea. I know of no such principle. Notwithstanding the fact that in a busy court, such a plea has the effect of saving that Court's time, a discount, if given on a guilty plea must be measured by the circumstances under which the plea is made. Certainly an accused that has been caught red handed, and who realizes that he has no alternative to make such a plea does not ``` This transcription忠实于原页的内容，使用了Markdown格式。
```markdown In considering sentence we are bound to have regard to the appellant's driving offences are concerned. In R.v. Morris (1988) 10 Cr. App.R.(S) 21 of J. cle Wpa said: In considering sentence we are bound to have regard to the appellant's driving offences are concerned. The learned judge who said that he would have liked to impose the maximum sentence, but in that regard the court's hands are tied by the legal colouette. I can perfectly understand why he imposed the maximum sentence of six years having regard to the record, the late plea, and the fact that the appellant had no defence, and knew perfectly well that he was disqualified. We think that in the sed. I think that the exceptional circumstances of this case the learned judge cannot be criticized for imposing the maximum sentence and giving no discount on the occasion. I hold that the discount that Hylton ought to have received should have been minimal, one in respect to the fact that he had been caught red-handed. However, been as the length of the sentence imposed, and that of a minimal discount, any interference with the sentence on that account I would consider to be fiddling with the sentence. I now come to the length of the sentences having regard to the gravity of the offence. As already stated, the maximum permitted by law is 7 years for a first offence. For a second offence it is 15 years. I consider that Hylton committed a separate offence each time he brought, or attempted to bring the drug into the country. It is obvious that the learned ```
```markdown # Magistrate's View and Sentence The magistrate has taken an extreme lenient view and treated all three offences as one. I will not interfere with the sentence on this basis, as it seems to be a common practice where multiple charges are concerned. However, the length of the sentence manifests the lack of a sense of the gravity with which these offences are treated. In *Hurlston v. R.*, a local case reported at 1986 CILR p.92, the appellant was convicted in the Magistrate's Court on separate counts, inter alia, of possession of ganja as an offence. The courier led to the arrest of the appellant and the seizure of 324 lbs. of ganja in the appellant's house. The appellant pleaded guilty to all charges of possession of ganja, less than one lb., and exporting ganja. The appellant was sentenced to four years imprisonment and a fine of $1,000 for the first charge (that found at the airport) and was sentenced on the second charge, that for 20g. three months and a fine of $200. The sentences of imprisonment were confirmed. It was held that the main consideration in the case was the dominant sentencing consideration had to be that of deterrence. ## Sentence Details In this matter, the learned magistrate has not only given Hylton a minimal sentence of 3½ years from the importation of 1600 lbs. of ganja, and 2 years for the attempt to import 1400 lbs. However, she has run the first charge of importation partially concurrent with the second, meaning that for both he will serve a total of 4½ years. This leaves me to wonder, if in a case where she considers the defendant to be the mover and shaker in such a large drug operation, what manner of man, or amount of ganja would attract a sentence of 4½ years. ```
```markdown # Approaching the Legal Maximum The learned magistrate imposed a sentence approaching the legal maximum or the maximum itself. In addition to upholding a sentence of 2 years for the Attempt, the magistrate ordered 18 months to run concurrently with charge 230agd, totaling 6 months to serve for this offence. ## Evidence and Mitigating Factors The evidence shows that the learned magistrate, although making no formal findings, may have been influenced by submissions that the police officer, acting as an agent provocateur, had been justified in treating such actions as a mitigating factor. However, in this matter, the learned magistrate did not find that the police officer's actions were justified in treating such actions as a mitigating factor. However, in this matter, the learned magistrate would have been justified in considering some discount in sentence. It is a recognized fact that, in the case of drug-related offences, it is often necessary for the police to undertake an undercover operation that necessitates a certain degree of provocation. In the case of *J.M. Ebanks v. R.*, another appeal from the Magistrate's court heard in *bt* of *Dilbeaut*, and reported at 1985 CLR, 364, it was held at 366 that the sentences were not excessive. ## Trial Magistrate's Decision The trial magistrate had treated the activities of the agent provocateur and self-dealing factor but, in view of the gravity of the offences involving the distribution of even a small quantity of controlled drugs, had properly rejected the lenient approach to sentencing which might have been appropriate had the drug been intended for the offender's personal use. The appeal was therefore dismissed. ## Sentencing Practices Apart from the extreme leniency of the sentences, it is my view that a partially concurrent sentence constitutes a bad sentencing practice. If the court wishes to give one year for an offence, then give the year, not two years with one to run concurrently. The time given in this case should reflect the gravity of the offence and the need for deterrence. ``` This transcription faithfully reproduces the content of the provided page, using Markdown for structure and headings. No additional content has been invented.
```markdown # Judgment In view of the 8 years given his co-accused, which unlike Hylton had I summary convictions, I did not disturb the actual length of any of the sentences. The practice of partially concurrent sentences has made the total time to be served manifestly short. I have ordered that the sentences be run consecutively, giving Hylton a total of 7½ years. To effect this, I have ordered Hylton to serve the sentences consecutively. --- **Dated this 23rd Day of June 2000** --- **KILPING DOUGLAS** Judge of the Grand Court --- **Signature:** [Handwritten signature] --- **Seal of the Grand Court:** [Seal stamp]