R v Cain (Andrae) - Sentence Judgment

¶ _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 1 of 26 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 41, 42 and 43 OF 2021 4 5 6 7 8 THE QUEEN 9 10 V. 11 12 ANDRAE CAIN 13 14 Appearances: Ms. Sarah Lewis for the Crown 15 Mr. Crister Brady of Brady Attorneys at Law for the 16 Defendant 17 Before: Justice Cheryll Richards Q.C. 18 Submissions on Sentencing: 6th May 2022 19 20 Sentence Judgment: 13th May 2022 21 22 23 HEADNOTE 24 25 Criminal Law- Sentencing - Drugs, Importation of cocaine- Sentencing Guidelines. 26 27 28 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 2 of 26 SENTENCE JUDGMENT 1 2

¶ [1] The defendant, Andrae Cain, is before the Court for sentencing, following his 3 conviction after trial for the offence of Being Concerned in the Importation of 4 630 grams (approximately 1lb.) of the controlled drug cocaine, contrary to s.3(1) 5 of the Misuse of Drugs Act (2017 Revision). 6 7

¶ [2] The particulars of the offence as set out in the Indictment are as follows: 8 “Andrae Cain on or before the 30th day of April 2021, without lawful 9 excuse or without being authorized, was concerned with the 10 importation of a controlled drug, namely 0.63 kg of cocaine into the 11 jurisdiction of the Cayman Islands.” 12 13

¶ [3] The defendant was charged with two other persons. Joseph Cain, also known as 14 “Prince” was charged with Being Concerned in the Importation of the said drug. 15 Odain Davis was charged with Importation of the said drug which was contained 16 in a sealed tin of cheese inside a suitcase. 17 SUMMARY OF THE FACTS 18

¶ [4] The prosecution’s case at trial was that on Friday the 30th April 2021, Odain 19 Davis travelled from Kingston, Jamaica, to the Cayman Islands, on board 20 Cayman Airways flight KX 601. His luggage included a red suitcase. When he 21 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 3 of 26 was questioned by Customs & Border Control officers, he told them that the red 1 suitcase had been given to him by a lady at the Norman Manley International 2 Airport in Kingston, Jamaica and was to be brought to the Cayman Islands to be 3 handed over to Andrae Cain. 4 5

¶ [5] The suitcase was examined by the officers and found to contain, clothing, 6 footwear of different sizes and styles, a tin of Jamaican Tastee cheese, packets of 7 plantain chips and some buns. The officers, on examining the tin of cheese, found 8 that it was heavier than they expected. 9 10

¶ [6] Mr. Davis was taken to the examination room with the tin of cheese which, when 11 opened, contained a white substance which was later confirmed to be cocaine. 12 13

¶ [7] Mr. Davis denied knowledge of the cocaine. His cellphone was seized by the 14 officers. Mr. Davis provided the password for it and told the officers that it would 15 have the phone numbers for the persons in the Cayman Islands, Andrae Cain and 16 Joseph Cain who had asked him to bring the suitcase, and for the lady who gave 17 the suitcase to him at the Norman Manley International Airport in Kingston 18 Jamaica. 19 20

¶ [8] In interview by the officers, Mr. Davis said that his friend Joseph Cain telephoned 21 him from the Cayman Islands and asked him to bring some items for a cousin of 22 his, Andrae Cain. Mr. Davis said that he was travelling to the Cayman Islands to 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 4 of 26 commence work on a work permit as a barber. He said that he had been reluctant 1 to take anything for anybody and that his own bags were full. On the morning of 2 his departure from Jamaica he received calls from both Joseph Cain and Andrae 3 Cain. He was told that someone would meet him at the airport with a bag with 4 the items for Andrae Cain and that he would also be given the money to pay for 5 the additional piece of luggage. 6 7

¶ [9] Mr. Davis said that a woman met him at the airport and handed the red suitcase 8 to him. When he checked inside the suitcase he did not see any items which 9 appeared to him to be suspicious. 10 11

¶ [10] As a result of the information provided by Mr. Davis, Mr. Joseph Cain and Mr. 12 Andrae Cain were arrested. 13 14

¶ [11] Joseph Cain admitted that he had spoken to Davis and asked him to bring shoes 15 and clothing for Andrae Cain. Joseph Cain denied knowing about the cocaine. 16 17

¶ [12] With respect to Andrae Cain, the prosecution’s summary is as follows: 18 “Mr. Andrae Cain was interviewed under caution. He stated that he 19 asked his cousin Joseph Cain if he knew anyone coming from Jamaica 20 to Cayman who could bring some items over for him. These items 21 were sweat pants that he wanted for the gym, two packs of boxers and 22 two packs of undershirts. He stated that he got Mr. Davis’ phone 23 number from his cousin and contacted him. He made arrangements 24 for Mr. Davis to meet a female at the airport in Jamaica whom he 25 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 5 of 26 knew for the past seven years from Old Harbour, Jamaica who sells 1 stuff. He stated he had never purchased anything from her previously 2 and this was his first time. He stated that he did not know her and 3 didn’t have a contact number for her as he had only contacted her 4 twice using his friend Alex’s phone which was on Thursday, 29 April 5

¶ [2021] He stated that Alex was a good friend who he hung out with 6 regularly but he did not know Alex’s full name nor where he lives. He 7 stated that he did not expect anything else in the suitcase and he did 8 not order any bun and cheese from the female as he can purchase that 9 in Cayman. He stated that he believed that he and Mr. Davis had 10 been set up by someone. He stated that he received a message from 11 his cousin Joseph asking him about illegal stuff in the bag which Mr. 12 Davis had brought in. He deleted the message from his phone as he 13 was frightened and worried about it. He denied being connected with 14 the importation of cocaine.” 15 THE MESSAGES 16

¶ [13] The messages were produced in evidence as Exhibits and showed that the 17 defendant had been in contact with a friend of his, Alex Kesto. He relayed to Mr. 18 Kesto the progress of the arrangements for the arrival of the person from Jamaica. 19 20

¶ [14] There were discussions between himself and Mr. Kesto as to what was to be 21 carried. Those discussions included that some “boogooyagah” or worthless items 22 would be packed in the suitcase, and that more than one person, specifically two 23 persons, every month, would be travelling. Alex Kesto has not been located by 24 the Officers. 25 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 6 of 26 STATEMENT OF DC WADE CHASE 1

¶ [15] For the purpose of sentencing, the prosecution has provided by agreement the 2 witness statement of DC Wade Chase dated 5th May 2022. He is a Detective 3 Inspector of Police attached to the Crime Task Force as Unit Commander. He 4 has been a police officer for over 22 years and has been attached to the Crime 5 Task Force, formerly known as the Drugs and Serious Crimes Task Force, for 6 the past six years. He states: 7 “As a police officer, I have dealt with several cocaine investigations 8 throughout my career. Even though I am not an expert, I have 9 significant experience in this area. The price of cocaine, is determined 10 by the purity, the location of sale, the supplier and the purchaser, it is 11 also heavily dependent on the availability of the drug on Island. 12 On Thursday the 5th of May 2022, I was asked by Assistant Director of 13 Customs Tina Campbell to provide a statement relative to the street 14 value of a quantity of cocaine that was recovered. She provided me 15 with a drug certificate for accused Odain Damar Davis, dated 7th of 16 June 2021, with the Item Reference number HS#1OD. The stated total 17 weight of HS1 OD 0.63kg (1lb 6.22oz). 18 Based on my experience, and current intelligence, I can state that in 19 the Cayman Islands, cocaine sells for $50 KYD per gram to $850 KYD 20 per ounce and between $8,000 KYD per kilogram. 21 22 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 7 of 26 The estimated street value of HS#1 OD 0.63kg (1lb 6.22oz) is as 1 follows:- 2  If sold by the kilogram, 0.63kg of cocaine can be sold 3 for between $5,040 KYD and $6,300 KYD. 4  If sold by the ounce, 0.63kg (22.22 oz) can be sold for 5 between $11,110 KYD and $18,887 KYD. 6  If sold by the gram, 0.63kg (630g) can be sold for 7 between $31,500 KYD.” 8 9

¶ [16] The defendant was remanded into custody following his arrest on 4th May 2021 10 through to the 27th September 2021 when he was released on conditional bail. 11 12

¶ [17] The trial took place between the 1st December 2021 and the 11th January 2022. 13 14 ANTECEDENT HISTORY 15

¶ [18] The defendant is 36 years old. He has no record of previous convictions. 16 17 SOCIAL INQUIRY REPORT 18

¶ [19] The Department of Community Rehabilitation (“DCR”) has provided a Social 19 Inquiry Report (“SIR”) dated 20th April 2022 with respect to the defendant. 20 21

¶ [20] He is the father of two children, ages ten and four years old. One child is resident 22 in Jamaica and the other in the Bahamas where the defendant resided and worked 23 for some years. 24 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 8 of 26

¶ [21] He relocated to Grand Cayman from Jamaica in 2019 to commence employment 1 as a barber. He graduated from school without incident. His mother migrated to 2 the United States when he was young and he missed her but he did not experience 3 any significant trauma throughout his life. After leaving school he initially 4 worked at various small businesses before he qualified as a barber in 2005. 5 6

¶ [22] The Probation Officer states that while this offence may have been motivated by 7 financial gain, there is no evidence that the defendant was experiencing financial 8 hardship or pressure at the time. 9 10

¶ [23] The defendant expressed to her his regret that his cousin Joseph Cain was 11 involved in the justice system because of his actions and his relief that Joseph 12 Cain and Odain Davis were not convicted of these offences. He says that he has 13 apologised to them. 14 15

¶ [24] The defendant is described as sharing a harmonious and supportive relationship 16 with his children and wider family. His mother says that her concern about him 17 is his choice of companions which she believes led to the commission of this 18 offence. Through the Probation Officer, the defendant expresses his desire “to 19 get this matter out of the way and return home”. He says that he does not have 20 any support in Cayman. He said to the Officer: 21 “It’s bittersweet [...] after going through everything, I feel like I 22 wasted the court’s time because I was found guilty. I wish they would 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 9 of 26 understand I’m a nice person. I wish they would give me a chance to 1 go deal with my kids.” 2

¶ [25] Under Assessment/Evaluation, the Officer describes the defendant as polite, 3 confident, well-spoken, and intelligent. He is a goal-oriented person with good 4 family values. The Report states:- 5 “In discussing the offences for which he is now before this 6 Honourable Court, Mr. Cain exhibited common criminal thinking 7 errors. According to the client, he believes that the drugs belongs to 8 an associate (Alex). However, he is reportedly unable to disclose any 9 further information about Alex and, until now, it is unknown whether 10 this individual is real or fictitious. Mr. Cain views himself as the 11 victim of his friend’s actions and blames him for his current quandary 12 before the court. The client constantly rationalized that he could not 13 have committed the offences because he is a good person. He sought 14 to highlight his positive traits as evidence of his innocence. He 15 further stated that he would have “covered” [his] tracks better” if he 16 had actually committed this offence.” 17 18

¶ [26] The defendant was assessed using the LS/CMI/Risk/Need Assessment Tool. His 19 overall risk of re-offending was assessed as medium. 20 21

¶ [27] The Officer identified his pro-criminal attitude/orientation as being of medium 22 level. This given his attempts to rationalize his involvement in the current offence 23 and the view that his years of illicit cannabis use indicates that he is supportive 24 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 10 of 26 of drug related crime. He also equally demonstrates a desire to lead a 1 conventional lifestyle by his role as a supportive father to his children. 2 3 THE MISUSE OF DRUGS ACT (2017 REVISION) 4

¶ [28] Section 45(2) of the Misuse of Drugs Act provides as follows:- 5 6 “Notwithstanding any other section of this Law or sections 6(2) and 7 8 of the Criminal Procedure Code (2017 Revision) or any provision 8 of any other Law, where a person is convicted of an offence on trial 9 upon indictment pursuant to subsection (1)(a), the Grand Court may 10 impose a term of imprisonment and a fine in accordance with section 11 16(4) or Part B of Schedule 2.” 12 13

¶ [29] Section 16(5) provides as follows: 14 “Notwithstanding subsection (1), a person who commits an offence 15 that — 16 (a) is contrary to any provision of this Law; 17 (b) is specified in Part B of Schedule 2; and 18 (c) is in relation to a controlled drug that is a hard drug, is, on 19 summary conviction, liable to imprisonment and a fine in 20 accordance with Part B of Schedule 2” 21 22

¶ [30] Part B of Schedule 2 to the Act provides that upon conviction of Being Concerned 23 in the Importation of 2 ounces or more of cocaine the maximum sentence on 24 conviction before the Grand Court is 25 years and a fine without limit. 25 THE CHIEF JUSTICE’S GUIDELINES 2002 26

¶ [31] In the Statement on Tariffs and Guidelines for Certain Offences issued by the 27 Chief Justice in 2002 it was stated: 28 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 11 of 26 “As regards DRUG OFFENCES under the Misuse of Drugs Law and 1 in particular those related to the widespread problem with cocaine 2 abuse in these Islands, the following tariffs are now confirmed: … 3 4 At the other end of the scale of gravity, that is to say, trafficking in 5 hard drugs in any quantity as defined in the Misuse of Drugs Law, the 6 maximum penalty prescribed for offences involving 2 ounces or more 7 is 20 years for the first offence and 30 years for a second or 8 subsequent offence with an unlimited fine in each case. That of course 9 is the maximum – the sentence for the worse possible offence by the 10 worse possible offender. The tariff for a first such offence, involving 11 less than 2 ounces of cocaine or less than 4 grams of cocaine base 12 without mitigating circumstances, will be 8 years. For offences 13 involving 2 ounces or more or 4 grams or more of cocaine base 14 without mitigating circumstances the tariff will be 10 to 12 years. 15 15 years or more will be imposed where such an offence involves 16 substantial importation or dealing in anyway either in powder or 17 crack cocaine. We would define ‘substantial importation or dealing’ 18 as any transaction involving several ounces or kilo quantities. The 19 Courts recognise that many of the people caught are couriers or 20 intermediaries and that the worse offenders in the chain of 21 distribution often remain concealed. Therefore there will be a 22 substantial discount on sentence for those offenders who are prepared 23 to co-operate with the police in their enquiries.” 24 25 CASES 26

¶ [32] In the recent case of Michael Palmer v R1 the Cayman Islands Court of Appeal 27 (“CICA”) re-affirmed that the Statement of Tariffs and Guidelines remains the 28 definitive source of sentencing guidance in cases such as the present. This is 29 notwithstanding the passage of time since they were propounded and notwithstanding 30 that the maximum sentence for the offences has substantially increased. In that case 31 the appellant Palmer imported 1.93 kgs of cocaine. He was sentenced to 8 years’ 32 1 CICA Appeal 23/2019 Unreported Judgment dated 25th November 2020 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 12 of 26 and 9 months’ imprisonment which sentence was upheld on appeal. The 1 Appellate Court approved the starting point of 15 years as being reflective of the 2 Statement of Tariffs and Guidelines. In the related case Kemar Boothe v. R2, in 3 which the appellant was said to have played a significant role as one of the 4 persons who had organised the importation of the drugs, the appellate Court 5 considered that a starting point of 17 years was appropriate. 6 7

¶ [33] In the case of Beacher v R3 the appellant received a sentence of 15 years’ 8 imprisonment after trial for being concerned with the importation of 460 grams 9 of cocaine which was to be collected by him from a courier. The Appellate Court 10 held that the sentence was not manifestly excessive, given the quantity of cocaine 11 involved, and that it was also within the 2002 guidelines. 12 13

¶ [34] In the case of Edwards, McBean and Others v. R4, the Grand Court considered 14 a number of appeals from sentences imposed by the Summary Court. The 15 appellant Junior Dixon had pleaded guilty to importing 388 grams or more than 16 14 ounces of cocaine. He was a courier. His appeal against a sentence of 9 years’ 17 imprisonment was dismissed. The appellant Erick McBean was convicted by the 18 Summary Court on his own plea of being concerned in the importation of 207 19 grams or 7.3 ozs of cocaine from Jamaica into the Cayman Islands. His sentence 20 2 CICA Appeal 3/2021 and 4/2021Unreported Judgment dated 14th December 2021 3 [2007] CILR 333 4 [2001] CILR 334 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 13 of 26 of 11 years was reduced on appeal to the Grand Court to one of 8 years. Howard 1 Antonio Edwards facilitated the purchase of approximately $13,000.00 worth of 2 cocaine. Given his limited and minor role, in the absence of evidence that he 3 would profit, the Grand Court considered that a sentence of 6 years’ 4 imprisonment was appropriate on a guilty plea. 5 6 THE UNITED KINGDOM SENTENCING GUIDELINES 7

¶ [35] Prosecuting Counsel has referred the Court to the United Kingdom Sentencing 8 Guidelines on the Fraudulent Evasion of a Prohibition by bringing into or taking 9 out of the United Kingdom a controlled drug. The maximum penalty in the 10 United Kingdom in respect of Class A drugs is life imprisonment. The sentence 11 range is 3 years 6 months’ to 16 years’ custody. 12 13

¶ [36] While the sentence range and maximum sentences are different from those for 14 the Cayman Islands, the United Kingdom Guidelines may be of assistance in 15 assessing an offender’s Culpability and the category of Harm. 16 17

¶ [37] Culpability is demonstrated by an offender’s role when certain characteristics are 18 present. 19 “Leading Role: 20 i. Directing or organizing buying and selling on a commercial scale; 21 ii. Substantial links to, and influence on, others in a chain; 22 iii. Close links to original source; 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 14 of 26 iv. Expectation of substantial financial gain; 1 v. Uses business as cover; and 2 vi. Abuses a position of trust or responsibility. 3 4 Significant Role: 5 i. Operational or management function within a chain; 6 ii. Involves others in the operation whether by pressure, influence, 7 intimidation or reward; 8 iii. Motivation by financial or other advantage, whether or not operating 9 alone; and 10 iv. Some awareness and understanding of scale of operation. 11 Lesser Role: 12 i. Performs a limited function under direction; 13 ii. Engaged by pressure, coercion, intimidation; 14 iii. Involvement through naivety/exploitation; 15 iv. No influence on those above in a chain; 16 v. Very little, if any, awareness or understanding of the scale of 17 operation; and 18 vi. If own operation, solely for own use (considering reasonableness of 19 account in all the circumstances).” 20 21

¶ [38] Harm is indicated by the quantity of drugs concerned upon which the starting 22 point is based. In respect of cocaine it is: 23 Category 1 - 5kg 24 Category 2 - 1kg 25 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 15 of 26 Category 3 - 150 grams 1 Category 4 - 5 grams 2 3 THE SUBMISSIONS 4

¶ [39] Prosecuting Counsel submits that the appropriate starting point for this case 5 based on local guidelines is greater than 8 years but less than 20 years. It is 6 further submitted that the amount imported places this offence at the higher range 7 of the sentencing authorities, and thus the starting point of 12-15 years would be 8 applicable. 9 10

¶ [40] Defence Counsel submits that while the United Kingdom Sentencing Guidelines 11 may be helpful in guiding the Court as to the appropriate sentence, they ought 12 not to be followed in isolation. Counsel referred to the case of Milton and 13 Campbell v R5 and highlighted the statement of Lord Toulson as follows: 14 “There are no statutory guidelines and the courts appear to have 15 developed a practice of using the provisions of Schedule 21 of the UK 16 Criminal Justice Act 2003 for guidance. The courts are entitled to look 17 for guidance to sentencing practices in other countries, but the Board 18 would not recommend that they bind themselves too closely to the 19 regime of a particular country, including the UK. Local judges are in 20 the best position to assess the appropriate tariff in their jurisdiction, 21 subject to their own statutory provisions.” 22 23 5 [2015] UKPC 42 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 16 of 26

¶ [41] Counsel also referred the Court to the principles discussed by the learned Chief 1 Justice in the case of Mitchell Comrie v R6 - pointing out in particular that there 2 are three factors that should guide a sentencing Judge: 3 i. The quantity of the drug 4 ii. The role of the defendant 5 iii. The antecedent history of the defendant 6 7

¶ [42] In this regard, Defence Counsel cited a number of cases including the following. 8 In Kenecia Millwood v. R7, the Appellate Court considered that a starting point 9 of 15 years rather than 17 years should have been applied, given the lesser role 10 of the appellant. A sentence of 10 years was imposed for importation of 2.86 kgs 11 of cocaine from Columbia. 12 13

¶ [43] In R v Watson and Manahan 8, the first appellant was sentenced to 10 years 14 imprisonment on a guilty plea to being concerned in the possession of cocaine 15 with intent to supply 2 kgs of cocaine. The Appellate Court held that, subject to 16 mitigation, the appropriate sentence for importation or being concerned in the 17 importation or supply of 2 kgs of cocaine was 15 years’ imprisonment on a not 18 guilty plea and 12 years’ imprisonment on a guilty plea. The Court reduced the 19 sentence of 10 years to 9 years on the basis that the lower court had not given full 20 credit for the first appellant’s guilty plea which came after the preferment of a 21 6 [2012 (1) CILR Note 3 7 2016 (2) CILR Note 5 8 (2000 CILR Note 16 CICA Crim. App. No. 14 of 2000, August 2000, unreported. _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 17 of 26 new charge of being concerned in the possession of cocaine with intent to supply. 1 The initial charge had been, being concerned in the importation of the drug. 2 3

¶ [44] In the case of Tidyl Fellner v. R9 a sentence of 9 years which was imposed after 4 trial for the offence of Being Concerned in the Importation of 680 grams of 5 cocaine was affirmed by the Court of Appeal. The defendant was 26 years old 6 and had no previous convictions. 7 8

¶ [45] In the case of R v Lobo, Perez-Ruiz, Taylor-Dominguez and Others10, the Grand 9 Court considered the appropriate sentences for conspiracy to import a kilo of 10 cocaine and a second offence of attempted importation of just over 1.8 kilos of 11 cocaine. The Court identified starting points of 17 years’ imprisonment for the 12 leading players in the importation and starting points of 15 years for middle 13 management. From a starting point of 17 years Mr. Taylor Dominguez, who had 14 given evidence at the trial of the main defendant, Mr. Lobo, received a sentence 15 of 4 years’ imprisonment following discounts for assistance and guilty pleas. 16 17

¶ [46] Defence Counsel submits that the defendant in the instant case played no more 18 than a lesser role. This is argued on the basis that while he had some awareness 19 of the scale of the operation, there is nothing to suggest that he had control over 20 the actual drugs or received or was to receive any financial benefit. 21 9 Court of Appeal, Crim. App. No. 32 of 2001, August 16th, 2001, unreported. 10 [2019 (1) CILR Note 19 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 18 of 26

¶ [47] Counsel noted the evidence from the messages that the defendant was seeking 1 loans from a third party. Counsel also submits that given these messages, Alex 2 Kesto appeared to have played the leading role in the operation. 3 4

¶ [48] With respect to Harm, defence Counsel referred to the quantity of the drug in this 5 case, 630 grams of cocaine or 1lb, 6.22 ounces. 6 AGGRAVATING FACTORS 7

¶ [49] Prosecuting Counsel submits that there are seven aggravating factors as follows: 8 9 i. The operation was a sophisticated one in that the cocaine was concealed 10 in a factory-sealed tin. 11 12 ii. The operation involved multiple persons across two jurisdictions and was 13 therefore a large-scale operation. Counsel submitted that at least five 14 persons have been involved, Andrae Cain, Joseph Cain, Odain Davis, 15 Kim and Alex Kesto. 16 17 iii. The defendant played an important role in the operation. He recruited 18 other persons. 19 20 iv. The offence was motivated by financial gain. The defendant was 21 gainfully employed as a barber at the time of his involvement. 22 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 19 of 26 v. Whilst convicted of being concerned with the importation of cocaine on 1 only one occasion, the telephone evidence suggests that this was part of 2 an ongoing operation. The defendant Andrae Cain accepted in evidence 3 that he asked multiple people to bring items over to the Cayman Islands 4 for him. 5 6 vi. The defendant did not provide as much assistance to the investigators as 7 he could have. 8 9 vii. The defendant put the futures of the two men recruited, his cousin Joseph 10 Cain and Odain Davis into jeopardy. Whilst it is Mr. Cain’s legal right 11 says Counsel to put the prosecution to proof and contest the matter, in 12 doing so, he did not assist with the investigation and he placed in jeopardy 13 two men who showed him good will in agreeing to have the suitcase 14 brought over to carry items for him. 15 16

¶ [50] Defence Counsel submitted that there are no obvious aggravating factors in this 17 case. 18 19

¶ [51] Counsel submitted that the offending took place over a limited period of time 20 some four to six weeks and that there was nothing sophisticated about it. The 21 sealing of a tin of cheese is not an indication of sophistication as argued by the 22 prosecution as tin sealers are readily available to the public. As to the 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 20 of 26 prosecutions’ argument about the defendant placing others in jeopardy, defence 1 Counsel argued that it is the prosecution that placed others in jeopardy as despite 2 having the benefit of phone records and messages it was determined to be 3 appropriate to bring charges against others. Counsel also submitted that the 4 absence of assistance should not be taken into account by the Court as an 5 aggravating factor. The defendant gave evidence in the matter and provided all 6 the information which he had in relation to Alex Kesto. 7 8 SUBMISSIONS IN MITIGATION 9

¶ [52] In mitigation Counsel referred to the SIR and the matters identified therein. 10 Counsel said that the defendant is before the Court on bended knees asking for 11 leniency. He has not sought to flee the jurisdiction as Mr. Kesto obviously did. 12 This Court is asked to consider that a significant part of the life of his young 13 children will be spent without him. 14 ANALYSIS 15

¶ [53] The United Kingdom Guidelines state that one or more of the characteristics 16 listed may demonstrate the offender’s role. One of the characteristics listed under 17 significant role is the involvement of others in the operation. In this case some of 18 the messages from Exhibit 12 and the evidence on oath given by Joseph Cain and 19 Odain Davis make it plain that they became involved in the operation as a result 20 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 21 of 26 of the repeated requests made by this defendant. The messages include the 1 following: 2 a. 26th April 2021 - 11:29 am Voice note message: AC to Kesto 3 “I just found someone who is coming Friday and don’t want to carry 4 anything for anybody. My cousin told me that his barber friend is 5 coming up Friday and I’m trying to get the pussy to bring a thing for 6 us. A bag for me, shoes and stuff and the batty boy is acting like he 7 doesn’t want to bring it. Yo I’m heated and would buss his head if I 8 saw him you know.” 9 10 b. 26 April 2021 at 11:54 Voice note message from AC to Kesto 11 “Check this out the person I told you about not too long ago? It seems 12 he’s softening up to agree with the bag thing. Because I told him to 13 just make us put a bag together and pay for it. So he’s talking about 14 he’s full and this and that. So I suggested that he can carry an extra 15 luggage and all he has to do is pay for it. Whichever kind of bag he 16 wants to carry it doesn’t matter. So it seems like he’s agreeing to it.” 17 c. 26th April 2021 at 11:28- Message AC to JC 18 “Prince what I’m saying to you is call the youth and make him know 19 it’s a little bag and you’ll send him the money to pay for it. This is 20 how serious things are that they don’t want to carry anything for 21 anybody. Reason with him and make him know. It’s not like he’s 22 going on train with it. It won’t inconvenience him. I don’t like 23 country man style. Reason with people and stop going like ya’ll don’t 24 have sense.” 25 d. 29 April 2021 at 23:43:23 Voice note message from AC to JC 26 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 22 of 26 “Prince what you up to? I called your friend a while ago but he 1 sounds like he doesn’t want to do anything for anyone. I don’t know 2 but I’d like you to contact him in the morning to see if he’s still going 3 deal with it for me because I got him but he said he was going to call 4 me back. So let me know still and just in case he calls back I’ll let 5 you know.” 6 7

¶ [54] Odain Davis in respect of the call with AC on the 29th April 2021 at 11:56:22, 8 says that the defendant was swearing and cursing and endeavouring to persuade 9 him to carry the bag. 10

¶ [55] The overwhelming evidence is that the defendant involved others in the operation 11 whether by pressure, influence, intimidation or reward. 12 13

¶ [56] The messages exchanged between the defendant and Mr. Kesto indicate that the 14 defendant had some awareness and understanding of the scale of and 15 arrangements for the operation. 16 17

¶ [57] The messages include the following: 18 19 a. 26th April 2021 - 11:57am Voice note message: Kesto to AC 20 “You can sort that out just get some heaps of clothes and some 21 worthless items and pack a bag to send up for you fast.” 22 23 b. 26th April 2021 11:51 Voice note: AC to Kesto 24 “No dog none of them is this one. It’s the girl [inaudible] on no flight 25 daddy. The next one for next week is coming still. Her flight is 26 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 23 of 26 straight. But the next one, her flight has been pushed back until next 1 month.” 2 3 c. 26th April 2021 11:52 Voice note: AC to Kesto 4 “Yea bro all the way next month the 28th the next one there is 5 coming.” 6 7 d. 26th April 2021 11:53 Voice note: Kesto to AC 8 “[Inaudible] far you know my friend the 28th of the next month is frr 9 frr frr you know. Remember it’s 2 of them bro. 2 of them you know 10 remember. 2 of them you had. You always forget that so I’m 11 reminding you one more time.” 12 13

¶ [58] Given all the circumstances, the conclusion is that this defendant played a 14 significant role. He recruited persons for the operation which was critical to the 15 success of it. Without his involvement the drugs would have remained in 16 Jamaica. He was aware of important details. The messages and the information 17 upon arrival of Davis showed that it was the defendant who was waiting to collect 18 the suitcase with the drugs, from him. 19 20

¶ [59] Consideration has also been given to defence Counsel’s submission that the 21 defendant played a lesser role in respect of each point on the list in the 22 Guidelines. There is nothing to suggest that the defendant was performing a 23 limited function under the direction of Alex Kesto or anyone else. Rather the 24 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 24 of 26 messages suggest an equal role or discussions between partners. There is nothing 1 to suggest that the defendant had no influence on Alex Kesto and no evidence 2 that the defendant’s involvement was through pressure, coercion or intimidation. 3 4

¶ [60] It is proposed in this case to adopt a starting point of 15 years. The basis for this 5 mid-range approach is in part, the quantity of the drug which is less than one half 6 the amount in the recent case of Michael Palmer v. R. 11, (630 grams compared 7 to 1930 grams). The lower starting point of 10-12 years which is mentioned in 8 the Statement of Tariffs is not adopted given the role played by this defendant 9 which is considered to be significant and the quantity of the drug. This is a case 10 of substantial importation. The higher starting point of 17 years which was 11 adopted in the cited case of Kemar Boothe v. R. is not adopted in this case 12 because of the lower quantity of the drugs. While there is a similarity of 13 significant roles there is a lower quantity of drugs in this case and thus the starting 14 point adopted is 15 years. 15 16

¶ [61] The Court has considered the submissions made by both Counsel by reference to 17 the list of aggravating factors identified in the Guidelines. Care must be taken 18 not to double count. The important role played by the defendant in the operation, 19 his involvement of others and his knowledge of the operation is already reflected 20 in the starting point adopted. The outstanding factor would be as to the 21 11 CICA Appeal 23/2019, 13th November 2020 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 25 of 26 sophisticated nature of the operation. The submissions of defence Counsel are 1 accepted in part. There is some level of sophistication to avoid concealment, but 2 it is at the lower end of the scale. The Court does not propose to apply an uplift 3 in sentencing with respect to this factor. 4 5

¶ [62] The offending in this case is of a serious nature with damaging implications for 6 the residents of the Cayman Islands who would by the presence of this drug have 7 access to harmful substances. As defence Counsel submitted: 8 “The damage cocaine causes to the Cayman community cannot be 9 minimised. Serious risks are well documented to the users’ health, in 10 addition to unemployment and disrupted families. Often, harm 11 extends beyond the user and other serious offending burglaries in 12 order to fund addiction are not uncommon.” 13

¶ [63] The custody threshold is firmly passed in this case and there is nothing in the 14 defendant’s personal circumstances which suggests that a custodial sentence is 15 avoidable. 16 17

¶ [64] From a starting point of 15 years, the Court takes into account everything that 18 has been said in the defendant’s favour in the SIR, which is summarised above, 19 and by his Counsel. He is 36 years of age. He has no previous convictions and is 20 of good character. He has good personal qualities and has been gainfully 21 employed. He is the father of young children. One child is only four years old. 22 Incarceration in the Cayman Islands will mean that he will be separated from his 23 _________________________________________________________________________ 220513 R v Cain (Andrae) – Inds. 41-43 of 2021. Coram: Richards J. Q.C. – Sentence Judgment Page 26 of 26 family in his home country and will be unable to provide for and support his 1 children. 2 3

¶ [65] When all these factors are taken into account, the sentence is reduced from 15 4 years to one of 11 years imprisonment. Any time served is to be deducted. 5 6

¶ [66] The defendant has been on an electronic monitor with a curfew from 7pm to 7am 7 from the 27th September 2021 through to today, a total of 228 days. The Court is 8 guided by the Cayman Islands Sentencing Guidelines with respect to credit for 9 curfew. It is noted that for a defendant of his character, his occupation and on the 10 evidence which emerged at trial, his particular extra-curricular activities, this 11 would have been particularly restrictive for him. Therefore the court proposes to 12 give him credit of 50 % for a total of 114 days. 13 14

¶ [67] The drugs are ordered forfeited to be destroyed. 15 Dated this 13th day of May 2022 16 17 Honourable Justice Cheryll Richards Q.C. 18 Judge of the Grand Court 19