Clarence James and Delroy Duncan v Raynor [2013] SC (Bda) 9 App
The Appellants were appealing against conviction and sentence for importation of cocaine. I had a moment of early morning confusion upon starting to read this judgment, as Delroy Duncan is the name of the President of the Bermuda Bar Council. However, I have it on good authority that this is an entirely different Delroy Duncan.
The noteworthy element of the judgment is the appeal against sentence. The appellants had both been sentenced to nine years in prison, which was higher than the recommendation of 7.5 years each by the Crown Counsel.
Kawaley CJ gave guidance on how defendants should be sentenced for drugs offences.
s.27B of the Misuse of Drugs Act states that the Court shall have regard to the street value of the drug and of its effect on society, and then add fifty per cent to the basic sentence.
s.27B does not define what a basic sentence is. If it is taken to mean sentences commonly given, then you could end up with sentences being rapidly inflated as 50% uplifts would start being added to basic sentences which already included a 50% uplift. To avoid this problem, it is necessary to consider what the sentence would have been before s.27B was brought in in 2005. Fifty percent is then added to that.
Comment - this case illustrates the problem with sloppy draftsmanship. Clearly parliament thought that drugs offenders were not being sentenced harshly enough, and came up with a solution of adding a 50% uplift to sentences. However, we now have a situation where judges are required to do a slightly complex exercise, looking back to 2005, to come up with a justifiable sentence. And the issue had to be litigated to work out what parliament meant, which has cost the public money.
One wonders whether the same result could have been arrived in a more straightforward manner by simply upping the maximum sentences, indicating that these were now seen as offences of greater gravity.
The Appellants were appealing against conviction and sentence for importation of cocaine. I had a moment of early morning confusion upon starting to read this judgment, as Delroy Duncan is the name of the President of the Bermuda Bar Council. However, I have it on good authority that this is an entirely different Delroy Duncan.
The noteworthy element of the judgment is the appeal against sentence. The appellants had both been sentenced to nine years in prison, which was higher than the recommendation of 7.5 years each by the Crown Counsel.
Kawaley CJ gave guidance on how defendants should be sentenced for drugs offences.
s.27B of the Misuse of Drugs Act states that the Court shall have regard to the street value of the drug and of its effect on society, and then add fifty per cent to the basic sentence.
s.27B does not define what a basic sentence is. If it is taken to mean sentences commonly given, then you could end up with sentences being rapidly inflated as 50% uplifts would start being added to basic sentences which already included a 50% uplift. To avoid this problem, it is necessary to consider what the sentence would have been before s.27B was brought in in 2005. Fifty percent is then added to that.
Comment - this case illustrates the problem with sloppy draftsmanship. Clearly parliament thought that drugs offenders were not being sentenced harshly enough, and came up with a solution of adding a 50% uplift to sentences. However, we now have a situation where judges are required to do a slightly complex exercise, looking back to 2005, to come up with a justifiable sentence. And the issue had to be litigated to work out what parliament meant, which has cost the public money.
One wonders whether the same result could have been arrived in a more straightforward manner by simply upping the maximum sentences, indicating that these were now seen as offences of greater gravity.
No comments:
Post a Comment