Chadwick P, Conteh JA, Forte JA
IN THE CAYMAN ISLANDS COURT OF APPEAL Criminal Appeal No. 4 of 2009 (Indictment No. 56/08) (Summary Court No: 05497/08) Between: HER MAJESTY THE QUEEN - and - RONNY ALBERTO FRAZIER DILBERT Respondent Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that RONNY ALBERTO FRAZIER DILBERT having sought leave to appeal against his SENTENCE passed upon him by the Grand Court on the 6th day of February, 2009 as set out below: Ind 56/08 IMPORTATION OF COCAINE – Count 1 8 years imprisonment with time spent in custody since 9th June, 2008 to be taken into account. The Court of Appeal has finally determined the said appeals, and has this 3rd day of March, 2010 given judgment therein to the effect following: 1. Appeal against sentence dismissed. 2. Sentence affirmed 3. Oral transcript of reasons to be released. Dated this 29th day of March, 2010 Registrar IN THE CAYMAN ISLANDS COURT OF APPEAL ON APPEAL FROM THE GRAND COURT CAUSE No. 5497 of 2008 IND No. 56 of 2008 CRIMINAL APPEAL No. 4 of 2009 BETWEEN: RONNY ALBERTO FRAZIER DILBERT Appellant - AND - HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK, P. THE HON. MR. JUSTICE FORTE, J.A. THE HON. MR. JUSTICE CONTEH, J.A. Reasons for Judgment delivered orally on 3rd March 2010 Judgment (Chadwick, P.) JUDGMENT Chadwick, President (Orally): The appellant, Ronny Dilbert, was convicted on a guilty plea on the 5th of February 2009 of the offence of importation of cocaine. The offence had been committed on the 9th of June 2008. The appellant was stopped and searched at Owen Roberts International Airport on his visit to the Cayman Islands. He was found then to have on his person 16.8 ounces of cocaine hydrochloride, having a purity of 61 percent. The equivalent pure value weight of the drug was therefore 10.2 ounces or thereabouts. When the appellant came before the Grand Court on the 5th of February 2009, it was indicated to the Chief Justice that he wished to consider entering a guilty plea; and that, for that purpose, the court was invited to give an advance indication of sentence in line with the procedure laid down by the Court of Appeal in England and Wales in the case of R. v. Goodyear [2005] 2 Cr.App.R. 20. Judgment (Chadwick, P.) The Chief Justice acceded to the request for an advance indication of sentence and gave that indication on the same day. He set out, in particular, the Guidelines in Goodyear itself; and the facts on which the indication as to maximum sentence was based. The indication that he gave was that, with those factors in mind - and in particular the discount to be afforded for an admission of guilt and substantial cooperation with the authorities - the indication would be of a maximum sentence of eight years' imprisonment. On the basis of that indication, the appellant pleaded guilty. He was convicted and was then sentenced. He was sentenced to eight years' imprisonment for the reasons which the Chief Justice set out in a subsequent ruling on the following day, the 6th of February 2009. It is from that sentence of eight years that the appellant now seeks to appeal. The Chief Justice reminded himself, when giving his Goodyear ruling, of the Guidelines of 16th January 2002 in relation to drugs offences. In particular, he reminded himself that for an offence involving substantial Judgment (Chadwick, P.) importation, or dealing in anyway, either in powder or crack cocaine, the tariff would be 15 years or more; and that substantial importation in that context involved any transaction involving several ounces or kilo quantities of the drugs. He went on to remind himself of that, as the Guidelines point out: "The courts recognise that many of the people caught are couriers or intermediaries and that the worst offenders in the chain of distribution often remain concealed, therefore there will be a substantial discount on sentence for those offenders who are prepared to cooperate with the police in their inquiries." The basis on which the Chief Justice sentenced included a note recording the cooperation and assistance rendered or to be rendered by the appellant which, for understandable reasons, was not read out in open court, but, plainly, was a matter which he took into account. He also took into account Judgment (Chadwick, P.) an agreed statement which had been the basis of the plea for the purposes of the advance indication sought. The basis of plea contained these four paragraphs:
Ronny Dilbert will plead guilty to the offence of importation of cocaine, as per the indictment and prosecution papers.
The cocaine was in the form of cocaine hydrochloride, weighing 16.8 ounces. The purity of the drug was 61 percent.
Ronny committed the offence acting under pressure but which he accepts does not amount at law to the defence of duress.
He was a courier only of the drugs with no greater involvement. When the Chief Justice came to sentence on the following day, following conviction on a plea of guilty, he referred to the Goodyear indication that he had given. In particular, Judgment (Chadwick, P.) he referred to three primary considerations which he had then taken into account. Those were, first, the intended plea of guilty involving an admission of importation of cocaine powder equivalent to 10.2 ounces of pure cocaine. Second, the defendant's cooperation with the authorities resulting in a further arrest and prosecution, as well as his stated willingness to telephone for the prosecution. And, third, the starting point of a tariff sentence of 15 years as set out in the Guidelines and case law, from which there could be a significant reduction for the two other factors stated above. He went on to observe that defendant's counsel had, at the stage of the Goodyear hearing, mentioned alleged threats to the defendant and his family members' lives as a reason for the defendant's actions; and as a mitigating factor while acknowledging that they could not amount to a defence of duress. The Chief Justice said this: "Having considered the defendant's account of these threats, given both in the Judgment (Chadwick, P.) witness statement which he gave and in his cautioned interview, I am not satisfied that his account should be taken in further mitigation of his sentence. This is not only because his account can be so easily contrived - and there are aspects which do seem contrived - but also because they are refuted by a most objective and independent factor. That is, the fact of the defendant's ticket having been bought and sent for him in Honduras from someone - now it seems an accused person - here in Cayman." The judge observed that that simply was not consistent with the defendant's narrative of having been abducted and forced at gunpoint by a gang in Honduras to bring the drugs here; and that he did not accept that account as a further consideration in mitigation of sentence. He concluded, therefore, that the Judgment (Chadwick, P.) only reasonable inference was that the defendant acted for gain; and he went on to say that he saw no reason in those circumstances for any further reduction from the sentence which he had earlier indicated as a maximum, arrived at after consideration of the genuinely mitigating factors to which he had referred. It is important to have in mind that the Goodyear process leads to an advanced indication of a maximum sentence on a guilty plea: so (absent some change in circumstances) it would not be open to the court, or to this court, to go above that sentence of eight years. But the fact that it is indication of a maximum sentence does not suggest - and should not be taken to suggest - that there is scope for negotiating the sentence down by reference to factors which have already been taken into account in reaching the Goodyear indication. If that were so, it would become the practice that defendants who were minded to plead guilty would, as a matter of course, seek a Goodyear direction with the hope, encouraged by experience, that they would get, as it were, some automatic reduction below that figure. Judgment (Chadwick, P.) The indication that it is a maximum sentence allows for the possibility that, when the court comes to sentence, there are some further factors which it may properly take into account in the sentencing exercise; and which, if taken into account, will then lead to a lesser sentence because they were factors which had not already been taken into account in indicating the maximum. That is the exercise which the Chief Justice carried out; and, if we may say so, carried out correctly. The additional factor which was being urged upon the Chief Justice was the alleged threats to the appellant and his family members, who were in Honduras, from an unidentified Honduran gangs. The judge, for the reasons which he gave, took the view that those alleged threats were not supported by the defendant's account and that he could give no credence to them. When this matter came before the court in November of last year, it was suggested by counsel on the appellant's behalf that, if he were given an opportunity, he could obtain and provide to the court material which would Judgment (Chadwick, P.) support his account of threats to his family members. The court felt it right, for that and other reasons, to adjourn the hearing of this appeal until the current session. In the meantime, the appellant has, it seems, been unable to obtain from Honduras, for reasons which he explained to us this morning, anything that would support his account. We are left, therefore, with the position as it was before the Chief Justice. On that basis - it being impossible to fault the Chief Justice's indication of the maximum sentence of eight years on a guilty plea - there is simply nothing which would enable this court to interfere. We cannot say that the Chief Justice ought to have reduced the actual sentence below the maximum advance indicated. I say that there is nothing to fault the Chief Justice's advance indication because, from a starting point of some 15 years as indicated by the Guidelines, a sentence of eight years gives a substantial discount - a discount of almost fifty percent - in respect of the guilty plea and the cooperation. It Judgment (Chadwick, P.) may, perhaps, be observed that the guilty plea on its own would not have been expected to attract a discount approaching fifty percent; given that the appellant was found at the airport with the drugs on his person. A guilty plea was really no more than a realistic recognition of that fact. And the cooperation has turned out to be rather less than promised: in that, as is common ground, the appellant did not give a witness statement which could have been used in evidence against the person who was apprehended as a result of the cooperation which he undoubtedly did provide following his arrest at the airport. So it cannot be said - and indeed it is not really said by the appellant - that the discount which lead to eight years as a indication under the Goodyear principle was not a sufficient discount for the factors which the Chief Justice then had in mind. All that can be said is that the Chief Justice ought to have given credence to the appellant's assertion that what he did was in response to pressure on his family. As I have said, the Chief Justice rejected that suggestion; and there is no Judgment (Chadwick, P.) further evidence which could lead us to take a view that he was wrong to do so. In those circumstances, this appeal against sentence must be dismissed. REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability, dated the 3rd day of March 2010. CAROL ROUSE