R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon) - Sentence Judgment

¶ ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 1 of 27 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 INDICTMENT NO: 21 of 2021 4 5 6 THE QUEEN 7 8 v. 9 10 MARVIN ANDRE BROWN 11 TONEY WILLIAMS 12 O’NEIL MINOTT 13 RICARDO KIMON DRYSDALE 14 15 16 17 Appearances: Mr. Garcia Kelly, Counsel for the Crown 18 19 Mr. Keith Myers, Counsel for Defendant Brown 20 21 Mr. James Stenning Counsel for Defendant 22 Williams 23 24 Mr. John Meghoo for Defendant Minott 25 26 Mr. Clayton Phuran for Defendant Drysdale 27 Before: Justice Marlene I. Carter (Actg.) 28 Jury Trial: Commenced 7th June 2021 29 30 Jury’s verdict: 1st July 2021 31 32 Sentencing submissions heard: 24th September and 4th October 2021 33 34 Delivery of Sentence Decision: 19th November 2021 35 36 HEADNOTE 37 Criminal Law – Possession of Ganja knowing or having reasonable 38 grounds to suspect that the drug is intended to be imported into the 39 Cayman Islands contrary to s.19(2)(a) of the Misuse of Drugs Act 40 (2017 Revision) - Principles on Sentencing - United Kingdom 41 Sentencing Guidelines 42 43 SENTENCE JUDGMENT 44 45 46 47 48 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 2 of 27

¶ [1] The Defendants are before the court for sentence in respect of the offence of Illicit 1 Trafficking to wit, “Possession of Ganja knowing or having reasonable grounds to 2 suspect that the drug is intended to be imported into the Cayman Islands” contrary 3 to s.19(2)(a) of the Misuse of Drugs Act (2017 Revision). 4 5

¶ [2] The sentence has had to be deferred as some of the defendants contracted the Covid- 6 19 virus. They have now all recovered and are able to join this hearing by ZOOM 7 from the designated location at HMPS Northward. 8 9

¶ [3] The Defendants were charged with the offence on the 3rd of March 2021. On the 30th 10 of April 2021 the Defendants were all arraigned before the Grand Court, and they all 11 entered ‘not guilty’ pleas to the single count on the indictment. The trial commenced 12 on the 7th of June 2021 and the Defendants were convicted of Illicit Trafficking on 13 the 1st of July 2021. 14 15 LETTER TO THE COURT FROM THREE DEFENDANTS 16 17

¶ [4] Before proceeding further, I will address the matter a letter received by this court on 18 the 6th of October 2021. 19 20

¶ [5] The court received a letter signed by three of the defendants - Brown, Minott and 21 Drysdale - after the sentence hearing for this case. In the letter they apologized “for 22 not pleading guilty from the start”. They alleged that they were misrepresented, in 23 that, they each had instructed their attorney that they wanted to change their plea, 24 but counsel insisted that their not guilty pleas remain. They also alleged that counsel 25 did not explain to them that they may get a discount for a guilty plea. 26 27

¶ [6] In written response to this Court’s inquiry counsel, Mr. Myers has vehemently 28 denied these allegations. 29 30 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 3 of 27

¶ [7] I am satisfied that there was an unequivocal plea of not guilty from these defendants. 1 These defendants were before the court at every session in which the evidence was 2 presented before the jury. This was a case that lasted almost one month. The court 3 is unaware of any disabilities affecting any of these defendants which would have 4 prevented them from giving some indication to the court themselves if it were the 5 case that counsel was not following their instructions. The Social Inquiry Report 6 (SIR) for each defendant gives no such indication of any physical or mental 7 challenges. In addition, the defendants Drysdale and Brown took the witness stand 8 and gave their evidence over the course of many hours, without any indication as set 9 out in this letter. 10 11

¶ [8] While the authorities indicate that a plea of guilty may be changed right up to the 12 moment that sentence is passed1, it is only in the rare circumstance that a trial judge 13 should exercise a discretion to allow such a change. It is not appropriate to do so 14 where the defendant has been represented by experienced counsel as in this case. I 15 am satisfied that this is not an appropriate case in which the court should exercise its 16 discretion to allow a change of plea at this stage. 17 18

¶ [9] I do not take these representations as expressions of genuine remorse but only as an 19 attempt to mitigate sentence where the custody threshold is obviously passed with 20 respect to the offence for which the defendants have been found guilty by a jury. 21 22 THE EVIDENCE 23 24

¶ [10] In summary the evidence presented by the Crown, and accepted by the jury, was as 25 follows. 26 27 1 S. (an Infant) v Manchester City Recorder [1971] A.C. 481, HL. ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 4 of 27

¶ [11] On Wednesday March 3rd 2021, at about 8:58 a.m., officers aboard Cayman Air 1 Support Unit (ASU) Police Helicopter were on border patrol duties, when they 2 observed a vessel with four (4) males on-board. 3 4

¶ [12] The vessel was approximately 11.2 miles South of Grand Cayman and heading 5 towards Grand Cayman. As they were investigating the said vessel, it changed course 6 and turned away from Grand Cayman, headed in a southern direction and sped off 7 at high speed. 8 9

¶ [13] This aroused the suspicion of the ASU team, hence they conducted further 10 observations during which time some of the occupants were observed throwing 11 packages off the boat into the water. They maintained observation and requested 12 assistance from Cayman Islands Coast Guard vessel “Trident” which responded 13 quickly to the stated location. The movements of the vessel and the actions of the 14 occupants were video recorded by the police helicopter. 15 16

¶ [14] The vessel “Sunshine Girl” was eventually intercepted by Cayman Coast Guard 17 vessel “Trident”. Four Jamaican Nationals [the defendants] found on board were 18 taken into custody and their vessel seized. A subsequent search was conducted of the 19 waters along the area of the chase and a total of twelve (12) packages with suspected 20 ganja were recovered from the water. 21 22

¶ [15] The packages were recovered, sealed, and exhibited. When tested by the 23 Government Analyst these were found to weigh approximately 360.3 lbs.2 and 24 contain ganja 25 26

¶ [16] The vessel, Sunshine Girl, is not registered in the Cayman Islands nor is it registered 27 in Jamaica. 28 2 Crown’s sentencing submissions at page 4 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 5 of 27

¶ [17] The estimated sale price of the ganja in the Cayman Islands is between CI$1,000.00 1 and CI$1,800 per pound, putting the estimated value of the drugs recovered at 2 between CI$360,000 and CI$648,000. 3 4 STATUTORY PROVISIONS AND CASE LAW 5 6

¶ [18] Section 19 of the Misuse of Drugs Act (2017 Revision) states: 7 “19. (1) This section applies to- 8 (a) a Cayman ship; 9 (b) a ship registered in a state other than the Islands which 10 is a party to the Vienna Convention; and 11 (c) a ship that is not registered in any country or territory. 12 (2) A person on a ship to which this section applies, wherever it 13 may be who- 14 (a) has a controlled drug in his possession; or 15 (b) is knowingly concerned in the carrying or concealing 16 of a controlled drug on the ship, 17 knowing or having reasonable grounds to suspect that the drug 18 is intended to be imported or has been exported contrary to 19 section 3(1) or the law of any state other than the Islands 20 commits an offence and is liable- 21 (i) if the controlled drug is a hard drug - 22 (A) on summary conviction to a fine of 23 twenty thousand dollars and to 24 imprisonment for five years; or 25 (B) on conviction on indictment to a fine 26 and to imprisonment for life; or 27 (ii) if the controlled drug is not a hard drug - 28 (A) on summary conviction to a fine of ten 29 thousand dollars and to imprisonment 30 for two years; or 31 (B) on conviction on indictment to a fine 32 and to imprisonment for fourteen 33 years. 34 (3) A certificate purporting to be issued by or on behalf of the 35 government of a state to the effect that the import or export of a 36 controlled drug is prohibited by the law of that state is evidence 37 of the matter stated.” 38 39

¶ [19] The following Section of the Act is also relevant in this case: 40 Section 25 41 “(1) If any constable or customs officer has reasonable cause to 42 suspect that any vessel is being used or has been used for the 43 commission of any offence against this Law, he may, without a 44 warrant, board and search such vessel and, if such search 45 reveals evidence that the vessel is being used for the commission 46 of any such offence, seize and detain such vessel. 47 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 6 of 27 (2) Where a person is convicted of an offence against this Law, and 1 the court by or before which he is convicted is satisfied that any 2 vessel which was in his possession or under his control at the 3 time of his apprehension - 4 (a) has been used in connection with or for the purpose of 5 committing or facilitating the commission of such 6 offence; or 7 (b) was intended by him to be used for that purpose, 8 the court shall order the forfeiture to the Crown of such 9 vessel.” 10 11

¶ [20] There are several authorities in this jurisdiction on sentences for offences relating to 12 the importation of large quantities of drugs. In Mitchell Comrie v The Queen3 the 13 Learned Chief Justice referred to principles which should guide a sentencing judge 14 in matters of this nature. These are: 15 i. The quantity of ganja; 16 ii. The defendant’s role; and 17 iii. Whether the defendant has previous convictions. 18 19

¶ [21] In Comrie, where the appellant had no previous convictions, the amount of ganja 20 that could be attributed to him was 50 lbs and he was found to have had only a 21 secondary role, the sentence after a guilty plea was three years’ imprisonment. The 22 Court found that: 23 “… in the light of (i) the appellant’s secondary role; (ii) his lack of 24 previous convictions; and (iii) the small amount of ganja in his 25 possession, a starting point of 3 – 4 years’ imprisonment was 26 appropriate.” 27 28

¶ [22] R v Rovan Johnson et al4, at Paragraph 45, the Cayman Islands Court of Appeal 29 (CICA) noted: 30 31 32 3 SCA 001/2011 4 CICA 24/2019 & 25/2019 judgment delivered on the 26th of November 2020 by Goldring J., President. ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 7 of 27 “We would add this. More than 8 years have passed since the judgment 1 of the Chief Justice in Comrie. He did not have the benefit of the sort of 2 argument considered by this court (albeit in the context of section 19). 3 It may well be that were he now considering the matter, he would have 4 in mind a somewhat higher starting point than he suggested then, even 5 in the context of importation contrary to section 3(1).” 6 7 8

¶ [23] In the same case the CICA stated at paragraph 50 of the judgment that in cases 9 concerning illicit trafficking, the sentencing Court may have regard to the UK Drugs 10 Definitive Guidelines and I quote from the judgment: 11 12 “50. In our judgment, there is good reason to follow the Definitive 13 Guideline for the reasons Justice Richards gave in Pillarchie. 14 There is no Cayman guidance. The maximum sentences for the 15 offending are similar. The characteristics relating to culpability 16 and harm, are equally apposite. As Justice Richards said, the 17 starting point for a Category 1 class B offence in respect of 18 someone who undertakes a significant role is 5 years 6 months 19 (66 months) custody, with a range of 5-7 years.” 20 21 22

¶ [24] In R v Linton Pillarchie et al5, another case of illicit trafficking, the CICA referred 23 to its earlier ruling in Rovan Johnson on this issue and reaffirmed that in matters of 24 this nature the sentencing Court can have regard to the UK Drugs Definitive 25 Guidelines6. In this judgment, the CICA affirmed sentences imposed by the Grand 26 Court for several defendants relating to 673 pounds of ganja and indorsed the 27 approach of Richards J. in the Grand Court as it did in Rovan Johnson et al. I set 28 out this approach from Richards J’s judgment here7: 29 “23. The Guidelines provide for the category of harm to be 30 determined by the quantity of the drug. The starting point for 31 Category 1 is based on 200kg of cannabis. In this case, given 32 that the quantity of the drug is 673 pounds or 305 kilograms, 33 this offence would fall into Category 1. 34 35 5 CICA 10/2020, 11/2020 & 12/2020 judgment delivered on the 23rd of April 2021 by Goldring J., President. 6 paragraph 19 of the said judgment) 7 Indictment: 24 of 2020, R v Pillarchie and Ors., pages 29-30 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 8 of 27

¶ [24] Culpability is demonstrated by an offender’s role in the 1 enterprise. The roles are identified by one or more of a number 2 of characteristics. A leading role would include: 3 * Directing or organizing, buying and selling 4 on a commercial scale. 5 * Substantial links to, and influences on 6 others in a chain. 7 * Close links to original source. 8 * Expectation of substantial financial gain. 9 10

¶ [25] A significant role would involve an operational or 11 management function within a chain, motivation by 12 financial or other advantage, whether or not operating 13 alone, or some awareness and understanding of the scale 14 of the operation. 15 16

¶ [26] A lesser role includes factors such as, performing a limited 17 function under direction, being engaged by pressure, 18 coercion or intimidation, involvement through naivety, 19 having no influence on those above in the chain and very 20 little awareness or understanding of the scale of the 21 operation.” 22 23 24

¶ [25] In submissions to this court the Crown and counsel for each of the defendants agreed 25 that the UK Sentencing Guidelines may guide the Court as to the factors to be 26 considered when determining an appropriate sentence for a Defendant. The 27 applicable guideline is for the offence of Possession with Intent to Supply at pages 28 9 to 15 of those Guidelines. 29 30 THE DEFENDANT MARVIN BROWN 31

¶ [26] Applying this approach, with respect to culpability, the Crown submitted that the 32 Defendant Marvin Brown should be considered as having a leading role in the 33 enterprise. The Crown submitted: 34 35 “…this venture was organized by Mr. Brown. He packed the bags and 36 directed their disposal at sea. For the quantity of drugs on board the 37 Court can infer that there was for the organizer an expectation of 38 substantial financial gain.” 39 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 9 of 27

¶ [27] On the matter of harm, the Crown submitted that the quantity of drugs - 360.3 pounds 1 of Ganja - should attract a Category 2 finding and that the Court should adopt a 2 starting Point of 6 years custody with a range of 4 years and 6 months - 8 years’ 3 custody with respect to the defendant Brown. 4 5

¶ [28] The Crown submitted that there were no mitigating factors in respect of the 6 defendant Brown but drew the Court’s attention to the following as aggravating 7 factors affecting this sentence and warranting an uplift in the starting point. 8 9 i. The Defendant Brown has previous convictions for a similar offence in 10 the Cayman Islands. The Defendant was sentenced to thirty-two months 11 imprisonment on the 28th of February 2019 for offences of being 12 concerned in the importation of ganja and possession with intent to 13 supply ganja. He was also the subject of a deportation order having been 14 deported from these islands on the 18th of October 2019. He stands 15 charged with breaching this order in the Summary Court. 16 17 ii. The defendant Brown attempted to conceal or dispose of evidence. He 18 “ordered the bags [of ganja] to be thrown overboard or, in the 19 alternative, is jointly responsible for their disposal as the head of the 20 transportation venture.” There was evidence from video footage that 21 seemed to show the Defendant Brown throw electronics overboard just 22 prior to the point of interception by the police. 23 24

¶ [29] In his submissions to the Court, counsel for the Defendant Brown argued that the 25 defendant did not have a leading role in the enterprise. Counsel submitted that there 26 is no evidence that that was the expectation of substantial financial gain on this 27 Defendant’s part. 28 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 10 of 27

¶ [30] With respect to harm counsel stated that the case fell into Category 2 harm based on 1 the quantity of ganja recovered and the nature of the drug itself. 2 3

¶ [31] Counsel for the defendant Brown agreed that on the facts of this case the defendant’s 4 attempt to conceal or dispose of evidence and the defendant’s previous drug 5 importation conviction, were aggravating factors.”8 6 7 SIR 8 9

¶ [32] The SIR reveals that the Defendant left school without completing exams at sixteen 10 and became a fisherman. The defendant did not report having any issues with 11 alcohol or drugs. 12 13

¶ [33] Regarding the Defendant’s attitude towards the offence, the defendant denies having 14 ganja on the boat. He maintained that he was transporting lobster to exchange for 15 fish, that his boat’s engine had broken down and, when the engine started on the third 16 day and he continued his journey, he did not know that he was within Cayman 17 Islands waters. 18 19

¶ [34] The SIR recorded an assessment of the defendant as being at medium risk of re- 20 offending. Some criminogenic factors - such as companions and pro-criminal 21 attitude - were listed as high; alcohol/drug problem and leisure recreation were listed 22 as placing the defendant at medium risk of re-offending; and, the officer found that 23 the defendant’s criminal history, education and anti-social patterns placed him at a 24 low risk of re-offending. Specifically with regard to criminal history the officer 25 stated: 26 27 8 See paragraph 19 at page 6 of Counsel’s submission ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 11 of 27 “A low assessment was made in this area as the antecedent record does 1 not indicate that the client is a prolific offender.” 2 3

¶ [35] The Crown took issue with this classification which seemed to give too little weight 4 in the assessment of risk in relation to of the fact that his defendant had been 5 convicted of a similar offence within a relatively short time before the instant 6 offence. As stated above, the defendant Brown was sentenced to thirty-two months 7 imprisonment on the 28th of February 2019 for offences of being concerned in the 8 importation of ganja and possession with intent to supply ganja. I will return to this 9 issue later in this judgment. 10 11 THE DEFENDANT TONEY WILLIAMS 12 13

¶ [36] The Crown submitted that, with respect to culpability, the Defendant Williams 14 played a Significant Role in the enterprise; that he was motivated by financial gain 15 and had some awareness of the scale of the operation. 16 17

¶ [37] The Crown’s submission of Category 2 harm was again based on the quantity of 18 drugs being 360.3 pounds of Ganja. The Crown submitted that the court should 19 adopt a starting point of 4 years’ custody with a sentencing range of 2 years 6 20 months’ – 5 years’ custody. 21 22

¶ [38] The Aggravating factor identified by the Crown with respect to the Defendant 23 Williams was related to the attempts to conceal or dispose of evidence, specifically 24 the throwing of the ganja overboard. The defendant, the Crown argued, was part of 25 a joint enterprise and is therefore jointly liable for the disposal of the items 26 overboard. 27 28 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 12 of 27

¶ [39] The Crown’s submission is that the only Mitigating factor with regard to the 1 defendant Williams is that he has no Previous Convictions for any criminal offence. 2 3

¶ [40] Counsel for the defendant Williams submitted that there was no evidence before the 4 court that Williams navigated or ever drove the boat or touched the drugs and is 5 never seen throwing packages overboard or even gesturing or directing that packages 6 be thrown overboard. He described Williams as being a naïve crew member. 7 Counsel submitted that there were none of the factors present to place him in any 8 categorisation of a ‘Leading or Significant’ role. Counsel submitted that his was a 9 lesser role. He performed a limited function on the vessel and was always under Mr 10 Brown’s direction 11 12

¶ [41] Regarding the guidelines, on counsel’s submission the starting point should be one 13 year in custody with a sentence range of 26 weeks to 3 year’ custody. 14 15 SIR 16 17

¶ [42] The defendant Williams is now 60 years old. He described being brought up by his 18 grandparents as his mother had mental health issues which made her unable to care 19 for him. His family was poor, and Williams was forced to leave school permanently 20 at the age of 12 to work to help support his family. Williams openly admitted to 21 being illiterate due to this lack of schooling. He eventually went into farming full 22 time as an adult, and he has also worked as a fisherman. The defendant disclosed 23 that he has issues with his eyesight but has no other permanent physical ailments. 24 The defendant maintains that he was not involved in any enterprise to import ganja 25 into the Cayman Islands. 26 27 28 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 13 of 27

¶ [43] He was assessed as being at medium risk of re-offending. It appears from the SIR 1 that although of the eight (8) criminogenic factors considered four of these were 2 assessed at low or very low, and three at medium risk, it was the assessment of his 3 companions as very high which resulted in this assessment. Counsel for Williams 4 took issue with this assessment submitting that it should be a low risk of re-offending 5 with regard to his client. 6 7 THE DEFENDANT O’NEIL MINOTT 8 9

¶ [44] The Crown’s submission on culpability in respect of the defendant Minott was that 10 he played a significant role in the enterprise. 11 12

¶ [45] The Crown submitted that “The Defendant Minott was motivated by financial gain 13 and had some awareness of the scale of the operation”. Harm, it was submitted, was 14 at category 2, based on the quantity of ganja involved and therefore the court was 15 asked to consider a starting point of 4 years’ custody and a sentencing range of 2 16 years 6 months’ to 5 years’ custody. 17 18

¶ [46] The Crown identified as an Aggravating factor in Minott’s case the attempt to 19 conceal or dispose of evidence. This Defendant was observed throwing at least three 20 (3) packages overboard just before the point of interception by members of the 21 Marine Unit. 22 23

¶ [47] The fact that the Defendant Minott has no previous convictions was the single 24 mitigating factor identified on his behalf. 25 26

¶ [48] In his submissions on sentence before this court Counsel for Defendant Minott noted 27 that: 28 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 14 of 27 “The impact of conviction after trial on sentence is unavoidable. Minott 1 falls hard from his previous good character and throws himself at the 2 mercy of the court. The court may consider sentencing him at the low 3 end of the range of sentencing given his age and previous good 4 character.” 5 6

¶ [49] Regarding his role in the enterprise, Counsel suggested that as the youngest and 7 easiest to control, the defendant Minott is “a follower not a leader”. He went on to 8 submit that when told by the captain to throw packages overboard he would have 9 feared to disobey. 10 11

¶ [50] The Defendant Minott did not give evidence at trial. There is nothing before this 12 court to suggest that he was in fear of any of the other defendants. 13 14 SIR 15 16

¶ [51] The report gave a detailed history of the defendant Minott having a mother who was 17 mentally challenged and a father who was an alcoholic with whom he had infrequent 18 contact and it also described him as having “… significantly traumatic formative 19 years. He suffered mental and physical abuse and lived on the poverty line for many 20 years.” He was eventually placed in a boys’ home at age 5 where he suffered 21 repeated physical and sexual abuse. This pattern continued throughout his childhood 22 however the defendant was able to achieve some success at one of the Juvenile 23 correctional centres in which he was placed, attaining three CXC passes. 24 25

¶ [52] Minott eventually found work as a mechanic but was not in paid work in the two 26 months immediately leading up to his involvement in this offence. It was the 27 probation officer’s opinion that: “…I am inclined to assess that financial gain was a 28 significant driver behind his decision making in this regard.” 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 15 of 27

¶ [53] Minott refutes any such financial motivation. Minott describes being a regular ganja 1 smoker. Minott also described only becoming part of this offence because he went 2 to assist Brown with pushing the boat off the dock. However further in the report it 3 was stated: “Mr. Minott claimed that he had no idea that the boat was carrying ganja 4 until dawn broke and he could see the bags for himself.” He denied knowing the boat 5 was making its way to the Cayman Islands. 6 7

¶ [54] The SIR stated that Minott was at a high risk of re-offending based on the fact that 4 8 of the 8 criminogenic factors considered were assessed as being either very high or 9 high. 10 11

¶ [55] Counsel for Minott took issue with the findings of the SIR which placed Minott at 12 high risk of reoffending. Counsel submitted: 13 14 “This is wrong and it is submitted that not only are the previous offences 15 committed as a young person, they are irrelevant and not drug-related. 16 Even in the recommendations given by the SIR reliance was placed on 17 irrelevant antecedents. It is made even more absurd when other co- 18 defendants were rated lower. This part of the SIR is hard to rationalize.” 19 20 THE DEFENDANT RICARDO KIMON DRYSDALE 21 22

¶ [56] The Crown submits that the Culpability and Harm are as follows, that Defendant 23 Drysdale had a Significant Role in this offence. The Defendant Drysdale was 24 motivated by financial gain and had some awareness of the scale of the operation. 25 On the matter of harm, the submission as with the other defendants was that the 26 quantity of drugs at 360.3 pounds of Ganja puts harm at Category 2. The starting 27 point is 4 years’ custody. The range is 2 ½ - 5 years’ custody. 28 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 16 of 27

¶ [57] The aggravating factor identified by the crown was the attempt to conceal or dispose 1 of evidence. The Crown’s submission is that as part of a joint enterprise this 2 Defendant is jointly liable for the disposal of the items overboard. 3 4

¶ [58] The Mitigating factor in this defendant’s case is that he has no previous convictions. 5 6

¶ [59] On behalf of the defendant Drysdale, counsel agreed that the offence was at category 7 2 in respect of harm. On the issue of culpability counsel submitted as follows: 8 9 “There is an absence of evidence that the 4th Defendant played a leading 10 or significant role in the enterprise. There is no indication that he 11 directed or organised the buying and selling of the drugs on a 12 commercial scale or otherwise or that he had substantial links to or 13 influenced others. Equally there is no evidence that he influenced the 14 chain or that he had close links to the original source. We submit that, 15 the 4th Defendant, if he played a role, same would be akin to the 16 characteristics of that of a “lessor role” and through naivety [naïveté].” 17 18

¶ [60] He argued further that 19 “Drysdale was on sunshine girl out of naïveté. He played no role in 20 buying, packing or loading the drugs. When he arrived at the point 21 where the boat was launched from (sic), the boat was already loaded. 22 At best Mr. Drysdale was a patsy.” 23 24

¶ [61] Counsel further stated that Defendant Drysdale did not know for whom the drugs 25 were being conveyed nor to whom it was to be delivered - factors which were 26 consistent with him being on the vessel “out of pure naïveté or misplaced trust in a 27 friend.” 28 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 17 of 27 SIR 1 2

¶ [62] Defendant Drysdale grew up primarily in the care of his mother as his father did not 3 play a significant part in his childhood. He is himself the father of seven children 4 ranging from 5 years to 18 years of age. Prior to his conviction for the instant offence 5 the youngest three of his children lived with him. He indicated that he has a close 6 relationship with all his children. Drysdale is a tiler by profession, is self-employed 7 and works in this trade primarily in the construction industry. 8 9

¶ [63] The defendant does not suffer from any physical or mental issues or disabilities and 10 divulged that prior to his incarceration he indulged in smoking ganja. 11 12

¶ [64] The defendant maintained that he was only on the vessel because he was asked by 13 an acquaintance to go on a fishing trip. Drysdale was assessed at being at a low risk 14 of re-offending. 15 16 INCONSISTENCIES IN ASSESSMENT OF RE-OFFENDING 17 18

¶ [65] As described above each of the defendants have been assessed for re-offending based 19 on the eight criminogenic factors that are considered on the Level of Service/Case 20 Management Inventory (LS/CMI) instrument when assessing the level of risk and 21 need. I note that each of these defendants were assessed by different officers of the 22 Department of Community Rehabilitation (DCR). It is of course possible that there 23 will be some differentiation based on the subjective views of these officers in 24 consideration of these criminogenic factors. I note the comments from the Crown 25 and from counsel for the defendants Minott and Williams in particular on this issue. 26 However, the officers’ assessments are but part of the Court’s considerations on 27 sentence. 28 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 18 of 27

¶ [66] These assessments of the individual defendants are helpful but are not in any way 1 determinative of the court’s conclusion of an appropriate sentence in the case of each 2 defendant. 3 4

¶ [67] As the level of Harm is being determined by the nature and amount of the drug, there 5 is no issue that this should be assessed at Category 2 harm in the case of each 6 defendant. 7 8

¶ [68] At issue is the court’s conclusion on the role played by each defendant. For while 9 the defendants are found to be part a joint enterprise to commit the offence of illicit 10 trafficking, the role of each defendant must be assessed in determining sentence. I 11 have considered the submissions of counsel for the Crown and each defendant as 12 outlined above. 13 14 ANALYSIS AND SENTENCE FOR DEFENDANT BROWN 15 16

¶ [69] Regarding the culpability of the defendant Brown, This court is mindful of the 17 observations of Richards J in Pillarchie that: 18 19 “The role of captain of the boat does not appear to fit comfortably within 20 the factors indicating a leading role…. It appears to be an operational 21 function within the chain as is set out in the factors for a significant 22 role.” 23 24 25

¶ [70] In that case, the evidence before the court was that the defendant Pillarchie captained 26 the vessel from Jamaica to where they defendants were eventually arrested. He 27 admitted that he expected significant financial gain and had already been paid a sum 28 of money. 29 30 31 32 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 19 of 27

¶ [71] In the instant case, Brown’s role, in addition to being the captain of the vessel, was 1 to involve others in the operation for reward. He also provided the vessel in which 2 the drugs were transported, packed the bags that contained the drugs and then 3 directed their disposal at sea when it appeared that the vessel was about to be 4 intercepted. 5 6

¶ [72] In many instances involving sentences for drug importation or illicit trafficking, this 7 court has determined sentence after pleas of guilty were entered. The court was 8 therefore, in those cases, in possession of much more detailed evidence of a 9 defendant’s involvement in the enterprise, from the defendant himself, in assessing 10 the role of the defendant vis à vis the UK Guidelines. This is not possible in this 11 case. 12 13

¶ [73] I am not satisfied that these actions of Brown described above accord with the 14 classification of a leading role as per the UK Guidelines. While I am mindful that 15 these characteristics which may define a defendant’s role are not exhaustive, they 16 are of a kind that, without some direct evidence, it is difficult to find that the 17 defendant: 18 19 i. Directed or organised buying and selling on a commercial scale; 20 21 ii. Had substantial links to, and influence on, others in a chain; 22 23 iii. Had close links to original source; 24 25 iv. Had an expectation of substantial financial gain. 26 27

¶ [74] I find that Brown had a significant role and I therefore find that the starting point for 28 this court must be at 4 years’ custody with a range of 2 ½ to 5 years. 29 30 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 20 of 27

¶ [75] I take into account the aggravating factors identified by the Crown, that, the 1 defendant has previous convictions in this jurisdiction for similar offences - offences 2 of being concerned in the importation of ganja and possession with intent to supply 3 ganja, and offences for which he was convicted on the 28th of February 2019 and 4 sentenced to thirty two months imprisonment. He was only deported from these 5 islands on the 18th of October 2019. 6 7

¶ [76] I also take into account the attempt to dispose or conceal evidence, his instructing 8 other members to throw bags of ganja overboard and also his disposing of what 9 appeared to be electronic items just prior to interception by the police. 10 11

¶ [77] The court’s starting point is 4 years’ custody. Taking into account the aggravating 12 factors above, the sentence is increase 6 ½ years’ custody. 13 14

¶ [78] This defendant has shown no remorse. There is little in the way of personal 15 mitigation. I do consider that he is a foreign national and the effect of incarceration 16 may cause some hardship in relation to his family. This may be mitigated by the fact 17 that his mother is resident in the Cayman Islands. I note that he has a young daughter 18 but there is no indication that she is dependent upon him. By way of personal 19 mitigation, I will reduce the sentence by 6 months. The sentence of the court in 20 respect of the defendant Brown is 6 years’ custody. 21 22 ANALYSIS AND SENTENCE FOR DEFENDANT WILLIAMS 23 24

¶ [79] The Crown submitted that the defendant Williams played a significant role based on 25 his motivation by financial gain and his awareness of the scale of the operation. The 26 Crown’s submission on the defendant’s awareness of the scale of the operation is 27 based on the dicta in Pillarchie wherein Richards J. stated with regard to the drugs 28 on the vessel: 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 21 of 27 “Each person travelled on the relatively small canoe with some 44 1 packages of Ganja. Each knew that these were being transported to the 2 Cayman Islands to be delivered to Cayman contacts. The commercial 3 nature of the enterprise could not have been lost on them. There was 4 therefore, at the very least, some awareness and understanding of the 5 scale of the operation.” 6 7 8

¶ [80] The submission on behalf of Williams is that he was unaware of the presence of 9 ganja on the vessel. However, this was not a large vessel, each of these defendants 10 on their own evidence was aboard this vessel together for almost three days before 11 interception. The drugs were packed into 12 packages and some of these were 12 relatively large. On the evidence presented by the Crown the clear inference 13 accepted by the jury was that each of the defendants knew that these were being 14 transported for delivery to the Cayman Islands. In these circumstances, it is 15 reasonable to find that the commercial nature of this enterprise could not have been 16 lost on them. This is sufficient for this court to find that there was: 17 “… at the very least, some awareness and understanding of the scale of 18 the operation.”9 19 20 21

¶ [81] On this basis, which indicates a significant role in line with the UK Guidelines, the 22 starting point in respect of the defendant Williams is 4 years’ custody with a sentence 23 range of 2 ½ years’ to 5 years’ custody. 24 25

¶ [82] This defendant has shown no remorse for his actions. The Crown submitted that an 26 aggravating factor for the court’s consideration may relate to the attempts to dispose 27 of the evidence overboard, that as part of the joint enterprise this Defendant is jointly 28 liable for the disposal of the items overboard. 29 30 31 32 9 See Pillarchie at paragraph 65 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 22 of 27

¶ [83] While the principle of joint enterprise has been proved with regard to the commission 1 of the offence of illicit trafficking, even within a joint enterprise persons may take 2 different roles and these differing roles may be assessed to arrive at the appropriate 3 and proportionate sentence for each offender. 4 5

¶ [84] I am not satisfied that it is enough on the facts of this case to find that because the 6 defendant was part of a joint enterprise that this alone is sufficient to attribute an 7 attempt to conceal or dispose of evidence by others in the joint enterprise with the 8 effect of making it an aggravating factor on the matter of sentence. There is no 9 aggravating factor in respect of the defendant Williams. 10 11

¶ [85] The only mitigating factor identified is that this defendant has no previous 12 convictions for any offence. Regarding personal circumstances, I consider 13 especially the defendant’s age and health as described by his counsel in submissions 14 to the court. Counsel stated: “ 15 16 “A lengthy custodial sentence will have a greater impact on him than a 17 man of younger years. Given the pandemic, it being well recognised that 18 prisons/places of detention are a high risk for CoVid-19, any sentence 19 (in this context) will be significantly more onerous on him as a 20 vulnerable geriatric prisoner.” 21 22

¶ [86] It is clear from the SIR that his circumstances are poor. I also consider the effect of 23 his incarceration in a foreign jurisdiction. 24 25

¶ [87] Taking a starting point of 4 years’ custody this sentence will be reduced by 9 months 26 to 3 years, 3 months’ custody. 27 28 29 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 23 of 27 ANALYSIS AND SENTENCE FOR DEFENDANT MINOTT 1 2

¶ [88] I find that the defendant did play a significant role in the enterprise to commit the 3 offence for the same reasons as outlined above in relation to the defendant Williams. 4 The defendant was on a small fishing vessel for almost three days before 5 interception. The drugs were packed into 12 packages some of these were relatively 6 large. On the evidence presented by the Crown the clear inference accepted by the 7 jury was that each of the defendants knew that these were being transported for 8 delivery to the Cayman Islands. In these circumstances, it is reasonable to find that 9 the commercial nature of this enterprise could not have been lost on them. This is 10 sufficient for this court to find that there was: 11 “… at the very least, some awareness and understanding of the scale of 12 the operation.”10 13 14

¶ [89] In Minott’s case, he did not give evidence at trial but I note this statement in his 15 SIR: “Mr. Minott claimed that he had no idea that the boat was carrying ganja until 16 dawn broke and he could see the bags for himself.” This statement lends weight to 17 him having some awareness and understanding of the scale of the operation. I take 18 as a starting point 4 years’ custody with a range of 2 ½ years to 5 years’ custody. 19 20

¶ [90] The aggravating factor in relation to the defendant Mr. Minott is that he was actively 21 involved in the attempt to dispose of evidence. There are instances on the police 22 video submitted into evidence at trial showing the Defendant throwing at least 3 23 packages, later recovered, and found to contain ganja overboard. This aggravating 24 factor will increase the sentence from 4 years’ custody to 4 ½ years’ custody. 25 26 10 See Pillarchie at paragraph 65 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 24 of 27

¶ [91] Defendant Minott has no previous convictions. I consider his personal 1 circumstances as outlined by his counsel and also set out his SIR. His was a difficult 2 upbringing to say the least. At 29 years of age it is difficult to describe this defendant 3 as being a “youth” but it does appear that his lack of employment and expectation of 4 some financial gain may also have been his driving factors. I consider too the 5 hardship that he will suffer in being incarcerated in a foreign jurisdiction. From 4 ½ 6 years’ imprisonment there will be a reduction of 6 months to 4 years’ custody. This 7 is the appropriate sentence. 8 9 ANALYSIS AND SENTENCE FOR DEFENDANT DRYSDALE 10 11

¶ [92] As with both Williams and Minott, and for the reasons described above, I find that 12 this defendant too played a significant role in the enterprise to commit the offence of 13 illicit trafficking because he had some awareness of the scale of the operation. The 14 starting point in sentence is 4 years’ custody. The sentence range is 2 ½ years’ - 5 15 years’ custody. 16 17

¶ [93] As stated above with regard to the defendant Williams, while the principle of joint 18 enterprise has been proved with regard to the commission of the offence of illicit 19 trafficking, even within a joint enterprise persons may take different roles. I am not 20 satisfied that it is enough on the facts of this case to find that because this defendant 21 was part of a joint enterprise, that this fact alone is sufficient to attribute an attempt 22 to conceal or dispose of evidence by others in the joint enterprise with the effect of 23 making it an aggravating factor against this defendant on the matter of sentence. 24 There is no aggravating factor in respect of the defendant Drysdale. 25 26 27 28 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 25 of 27

¶ [94] The defendant has no previous convictions. The defendant has shown no remorse. 1 In terms of personal circumstances, this defendant has 7 children, three of whom 2 depend on him for financial assistance. I take into account that he is a foreign 3 national who will be incarcerated away from his home and family and the hardship 4 that may be caused thereby. I find that the sentence should be reduced by 6 months 5 on account of these aspects in mitigation. The appropriate sentence is 3 years’ 6 6 months’ custody. 7 8

¶ [95] In the case of each Defendant, any time served on remand is to be deducted. 9 10 FORFEITURE OF VESSEL 11 12

¶ [96] The Prosecution applies for an order of forfeiture of the vessel pursuant to s.25 of 13 the Misuse of Drugs Act. Section 25(2) provides that:- 14 “(2) Where a person is convicted of an offence against this Law, and 15 the court by or before which he is convicted is satisfied that any 16 vessel which was in his possession or under his control at the 17 time of his apprehension - 18 (a) has been used in connection with or for the purpose of 19 committing or facilitating the commission of such 20 offence; or 21 (b) was intended by him to be used for that purpose, the 22 court shall order the forfeiture to the Crown of such 23 vessel. 24 (3) Facilitating the commission of an offence shall be taken for the 25 purposes of this section to include the taking of any steps after 26 the offence has been committed for the purpose of disposing of 27 any property to which it relates or of avoiding apprehension or 28 detection.” 29 30

¶ [97] Given the agreed evidence, provisions of s.25(2) are satisfied. The vessel, engine 31 and contents are therefore ordered forfeited to the Crown. The drugs are ordered 32 forfeited to the Crown to be destroyed. 33 34 35 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 26 of 27 PREVALENCE 1 2

¶ [98] Counsel for Mr. Brown raised with this court the matter of considerations of 3 prevalence as being a factor for sentencing and referred the court to a number of 4 authorities in this regard. Having considered those submissions, it appears to this 5 court from its reading of the recent CICA decisions relating to Illicit Trafficking that 6 the CICA has found that prevalence is a factor to be considered. However, it is a 7 factor that led the court to find that the UK sentencing guidelines endorsed as being 8 useful in terms of sentencing for this offence, were appropriate to ensure and support 9 consistency of approach in these matters. In both Pillarchie and Rovan Johnson 10 the CICA found that the acceptance by the Grand Court of the prevalence of these 11 types of drug offences was relevant to the increase in the starting point from the 12 starting point of 4 years’ in the summary court for a similar offence to a starting point 13 of 5 ½ years’ imprisonment for the offence of illicit trafficking. The dicta of 14 Richards J at paragraphs 68 -73 is instructive in this regard. So too is the observation 15 of the CICA in Rovan Johnson in which the following is recorded: 16 “It is clear that the problem of the use of vessels to transport ganja 17 destined for the Cayman Islands from Jamaica is a serious one. The 18 number of cases drawn to Acting Judge Carter’s attention speaks for 19 itself. The position was colourfully described by Magistrate Foldats in 20 Adlam and others, mentioned at paragraph 32 of Acting Justice 21 McDonald-Bishop’s judgment in Russell and others. As Justice 22 Richards, with her wide knowledge of such matters explained, it is not 23 difficult to take a small boat containing significant quantities of ganja 24 from Jamaica to the Cayman Islands. It may well be that the position 25 has worsened since 2012 when the Chief Justice decided Comrie. What 26 is clear is that the present level of sentencing acts as no deterrent to 27 such offending.” 28 29 In deciding the appropriate sentence, the court was entitled to take the 30 extent of such offending into account. We do not accept Mr Grimwood’s 31 submission to the contrary. Moreover, as this court made clear in Ryan 32 Ebanks (Criminal Appeal 6 of 2020), it is not appropriate in a small 33 jurisdiction such as the Cayman Islands to apply the case of Bondzie: 34 see too the observations of the court in paragraph 115 of Ramoon and 35 Douglas, Cayman Islands Appeal Reports at 34 and 35 of 2016.” 36 37 38 ____________________________________________________________________________________ Sentence Judgment: R v Brown (Marvin Andre), Williams (Toney), Minott (O’Neil), Drysdale (Ricardo Kimon). Coram: Carter J. (Actg.). Date: 19th day of November 2021. Page 27 of 27

¶ [99] At paragraph 115 of Ramoon and Douglas the Court of Appeal observed: 1 “We do not accept that this experienced, local judge was not entitled to 2 make thecomments he did about gun crime in the Cayman Islands. It 3 was not necessary for evidence to be called. This is a small jurisdiction. 4 Judges such as Mr Justice Quin are familiar with the prevalence of 5 particular forms of crime and offending. The accuracy of his comments 6 is to some extent borne out by Mr Justice Henderson's comments, to 7 which we have referred. Moreover, there is no dispute, as the appellants' 8 submissions have underlined, that the use of guns, at least in cases of 9 murder, is frequent. The concern in the Cayman Islands regarding gun 10 crime is also illustrated by the stah1tory requirement upon the courts to 11 impose severe, mandatory sentences for the possession of firearms.” 12 13 14

¶ [100] There is nothing further for this court to add on this point. 15 16 17 18 19 Dated this 19th day of November 2021. 20 21 22 23 24 Madam Justice Marlene I. Carter 25 Judge of the Grand Court (Acting) 26 27 28