Law report - sentencing for drugs offences

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.

Law report - appropriate sentence for importing cannabis

Hewey v Raynor [2012] SC (Bda) 54 App

The Appellant had been sentenced to eighteen months in prison for importing cannabis with a street value of around $100,000.

He had flown into the airport, having checked in a bag containing the cannabis, which he then left on the baggage conveyor belt. He said at the Magistrates' hearing that he had had a change of heart and so had just left the bag there.

Kawaley CJ held that it was open to the Magistrate to impose an immediate custodial sentence, given that:

• the Appellant had said that he intended to leave Bermuda as soon as he was released from custody;
• he had not cooperated to any great extent with the authorities; and
• he had been at liberty for some years before the charges had been laid [14]

Furthermore, lack of previous convictions was not a mitigating factor for such an offence, given its planned nature and that it is common sense to employ individuals for smuggling who have no previous convictions [13].

This was not a case where the drugs were left at the airport as part of a plan to be recovered by an accomplice. It was one where the appellant had had a change of heart, or abandoned his plans part-way through it, and had left the drugs where it was extremely likely that they would be picked up by the appropriate authorities. [21]

Had he actually come clean at the airport and handed the drugs in, a custodial sentence might not have been required [21].

However, given his change of heart, a sentence of 12months was more appropriate [22].

Law report - sentencing - sexual exploitation of a young person

Miller v Crockwell [2012] SC (Bda) 47 (7 September 2012)

The Respondent, Crockwell, had been convicted of sexually exploiting a twelve year old girl. The maximum sentence was twenty years in prison if convicted in the Supreme Court, or five years if convicted in the Magistrates' Court. Crockwell had opted for the Magistrates' Court.

Crockwell was given  a custodial sentence of fifteen months by Magistrate Khamisi Tokunbo, suspended for two years. The appeal was on the grounds that the sentence was manifestly inadequate.


Kawaley CJ said that defendants under the age of 21 are able to claim a special defence that is not available to older offenders, namely that he believed the complainant was older than 14. Obviously, if the defence succeeds then the defendant will be found not guilty. However, the existence of the defence means that the offence is not seen as such a grave one if committed by an offender under the age of 21 than if it were committed by an older offender [41]-[45].

It follows that the Magistrate was not dealing with a case where an immediate custodial sentence was essential or the usual penalty [46]. Similar sentences had been given in the past.

There were special circumstances to justify a suspended sentence, namely that the offence was of a low gravity, he was 20 years old at the time of the offence, there was a low risk of reoffending, and he had family and church support and risked losing his job. Although he had not pleaded guilty, his defence was not based on making the victim out to be a liar, thereby increasing trauma to the victim [48]-[49].

 Kawaley CJ drew support from Bermuda Court of Appeal cases, such as Kirby v Durham [1989], which stated that the age of a defendant or the fact that he is a first time offender or unlikely to reoffend, might be "exceptional circumstances" which might justify a suspended sentence [50].

The Magistrate had erred in law by refusing to hear the victim impact statement [60], although he should not be overly cricitised for doing so as the Prosecution had delayed in serving it, such that it interfered with effective case management on a busy court day.

Nonetheless, the victim statement revealed what might reasonably have been expected in an incident such as this. The contents were not such to render the sentence manifestly inadequate [62]. It was not the Prosecution's submission that the failure to consider should mean that the defendant was re-sentenced. Stretching the matter out further would not be attractive for either the victim or the offender [63].

The public humiliation received by the offender will serve as a further deterrent over and above the sentence received [63].

The judge reported the victim's statement at [64] in order to inspire other victims of similar offences to come forward and to educate the offender and other perpetrators of such crimes about the impact on the victim.

Some guidelines were set out for future sentencing:
the only appropriate sentence in the Magistrates' Court for an adult offender with no previous convictions, for exploitation of a young person, is an immediate custodial sentence [87]. The starting point would be a sentence of around 18 months, which would be increased or decreased, depending on the circumstances.

The UK sentencing guidelines are persuasive on considering aggravating and mitigating factors [84].

Kawaley CJ also raised a couple of questions which might arise in the future:
Should the special defence given to defendants under the age of 21 (that they believed the child was over the age of 14) in fact only be available to defendants under the age of 18, when read in line with the Age of Majority Act 2001, which changed all reference to the age of 21 to age 18 in Acts of Parliament? [44]
Does the Constitutional requirement that the Courts be independent mean that Magistrates cannot be summarily removed from office? [73]

Law Report - appeal against "manifestly inadequate" sentence

In Raynor v Davis [2012] SC (Bda) 29 App (1 June 2012), the Respondent was sentenced by the Magistrates' Court to one year in prison after pleading guilty to a charge of burglary. He had broken into the hotel room of a couple both in their seventies. When the husband sought to restrain him, the Respondent shouted that he had a gun, before escaping from the scene. The incident had the potential to damage Bermuda's commercial interests, due to the negative publicity from attacks on tourists. At the time of the offence the  Respondent was on probation for Prowling.

The Appellant, a police officer, appealed on the grounds that the sentence was manifestly inadequate.

Kawaley CJ noted that the Respondent's record reads like the resume of a man who has dedicated his life to the diligent pursuit of non-violent property offences. The Supreme Court can be greatly assisted by UK Sentencing Council Guidelines, although they are of limited value to the Magistrates' Court. Drug addiction is not a mitigating factor.

The dictum of L.A Ward J in Osborne v Harvey [1987] Bda LR 78 was followed, where he said:
"The leading authority in Bermuda on the meaning of ‘manifestly inadequate’ is
Plant (R) v Robinson Criminal Appeal No. 1 of 1983 in which the Court of Appeal
held that manifestly inadequate means obviously inadequate, that is to say
obvious to the appellate tribunal that the sentence is much too low and fails to
reflect the feelings of civilized society to the crime in question. It also stated that a
sentence is manifestly inadequate when it is obviously insufficient because the
judge or magistrate has acted on a wrong principle or has clearly overlooked, or
undervalued, or overestimated, or misunderstood some salient features of the
evidence. It is a failure to apply right principles"

In the circumstances the one year sentence was manifestly inadequate. A sentence of 30 months was substituted, taking into account that the Respondent was also serving other sentences.