Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 20 of 2009 (Summary Court Appeal No. 32/08) C#4201/005 HER MAJESTY THE QUEEN - and - IAN JEFFREY BODDEN Respondent Appellant NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that IAN JEFFREY BODDEN having appealed against the decision of the Grand Court dated 7th August 2009 which dismissed his appeal against sentence: The rulings of the Summary Court on 3rd September, 2008 were as set out below: C#4201/05(1) Selling Controlled Drugs 4 years imprisonment. C#4201/05(4) Possession of Cocaine No separate penalty. The Court of Appeal has this 25th day of November 2009 given judgment therein to the effect following:
Application for leave to appeal refused.
Sentence affirmed
Transcript of Oral Judgment to be released. Dated this 22nd day of January, 2010. Registrar IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Appeal No. 20/2009 SCA 32/2008 C# 4201/2005 BETWEEN: IAN JEFFREY BODDEN and Appellant HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK P. THE HON. MR. JUSTICE FORTE J.A. THE HON. MR. JUSTICE MOTTLEY J.A. Reasons for Judgment delivered orally on 25 November 2009 JUDGMENT RELEASED JANUARY 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUDGMENT FORTE J.A. (Orally): This is a judgment in the case of Tan Bodden and the Queen heard today, 25th of November 2009. The appellant was charged jointly with another for the offence of selling cocaine to an undercover policeman on the 3rd of November 2005, and of being in possession of another quantity of cocaine that was recovered by the police during a search of his premises. On the 18th of February 2008, the appellant pleaded guilty in the Magistrate's court to both charges. On the 3rd of September 2008, on the charge of selling cocaine he was sentenced to four years' imprisonment. No sentence was imposed in respect of the charge relating to the possession of cocaine. From the Magistrate's court the appellant appealed to the Grand Court against his sentences, but Mr. Justice Henderson, in a detailed judgment, dismissed his appeal. He now appeals to this Court. The only ground 3 Reasons for Judgment (Forte J.A.) 1 filed, apparently in person by the applicant, 2 reads as follows: "Although I feel that I should be punished for my actions, I am asking this honourable Court's leniency. This offence occurred in 2005 and I was not sentenced until September 2008. During this time I realised the road I was going down, was not a very good and productive one. "I have obtained employment, got married and is a father of twins. My employers were so impressed with my performance that they have offered to rehire me when I am released. "For the above reasons I am asking for the Court's consideration in reducing my sentence." 21 22 Indeed the applicant came before us this 23 morning and advanced that ground, without 24 adding too much to it. However, in the Court 25 below, before Mr. Justice Henderson in the Reasons for Judgment (Forte J.A.) 1 Grand Court, the applicant apparently had the services of counsel. In his ruling dismissing the appeal against sentence, Henderson J points out: "Mr. Furniss concedes that the guideline tariff for the commercial supply of small amounts of cocaine is a term of imprisonment for eight years and, when the guilty pleas of the... defendant is taken into account, the sentence of... four years is appropriate." 13 12 11 10 9 8 7 6 5 4 3 2 1 25 Nevertheless, a report on the case 24 That deficiency has now been corrected. 23 particularly in sentencing appeals, were never recorded or in any way reduced into writing. 22 This case highlights a deficiency in the system at that time when oral judgments, particularly in sentencing appeals, were never reduced to writing. 21 This case highlights a deficiency in the nightclub. The reasons in that case were never convicted of supplying cocaine at the Matrix judgment of this Court, in which three men were convicted of supplying cocaine at the Matrix nightclub. The reasons in that case were never reduced to writing. 20 This case highlights a deficiency in the 21 system at that time when oral judgments, particularly in sentencing appeals, were never reduced to writing. 22 This case highlights a deficiency in the 23 particularly in sentencing appeals, were never recorded or in any way reduced into writing. 24 That deficiency has now been corrected. 25 Nevertheless, a report on the case Reasons for Judgment (Porte J.A.) 1 published in the Cayman Compass, dated the 31st of August 2008, reported President Zaccia, as he then was, as having said that sentences imposed on these three young men should have been imprisonment for two years. However, as pointed out by Mr. Justice Henderson in his ruling, that was said in the context of an appeal by the Crown in respect of sentences of three months and six months. Mr. Justice 10 Henderson quite correctly distinguished that case from the present appeal. Here is what he said: 11 case from the present appeal. Here is what he 12 said: 13 "Moreover, the case which was before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 14 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 15 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 16 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 17 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 18 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 19 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 20 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 21 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 22 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 23 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 24 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, 25 before that court a year ago was very different. It involved three men who were supplying very small amounts of cocaine, were making any profit out of 1 Reasons for Judgment (Forte J.A.) 2 the selling of cocaine or 3 intended to do so." 4 counsel that the case referred to was an 5 indication that the Court changed the 6 sentencing policy in respect to cocaine 7 traffickers. He was absolutely correct. The 8 guidelines set down by the Learned Chief 9 justice are as applicable today as they were in 10 January 2002 when they were published. 11 In respect to trafficking, those 12 guidelines, as is relevant to this appeal, 13 state: 14 "The tariff for a first such 15 offence, involving less than 2 16 ounces of cocaine or less than 4 17 grams of cocaine base without 18 mitigating circumstances, will 19 be eight years." 20 In the instant case the amount of cocaine 21 involved was less than two ounces and, 22 consequently, the above mentioned provision of 23 the guidelines would apply. As the sentence 24 imposed on the appellant was four years, and 25 not eight years as suggested by the guidelines, Reasons for Judgment (Forte J.A.) 1 it is appropriate to look at the mitigating circumstances that the Magistrate applied in sentencing the appellant. In giving her reasons, this is what she said: 5 "This defendant is not a man of good character. He has a long record of drug use and possession. It is true that a significant time has elapsed since the matter first came to Court but that should not enure to his benefit where the delay was occasioned by the defendant himself who maintained a not guilty plea until the 18th February. I do not disregard, however, the evidence of his growing maturity in the period between the date of the offence and today's date, including his maintaining employment for the last two years and being able to improve his family's personal circumstances as a result. I impose a sentence of 4 years, a Reasons for Judgment (Forte J.A.) 1 Year less than the normal minimum, to take the delay and the changes in the defendant's personal circumstances into account. The second charge of being in possession of cocaine simpliciter warrants the imposition of a consecutive sentence as it is a second subsequent offence. The tariff for such possession is 12 months (see the Chief Justice's sentence guidelines) but given the circumstances to which I have already referred, I will not impose a separate penalty for the offence." 17 18 Although the Learned Magistrate seemingly exercised a greater degree of leniency than was warranted, we cannot fault her reason in coming to her conclusion, nor can we find any reason for interfering with the decision of Mr. 22 Justice Henderson in dismissing the appeal from the decision of the Learned Magistrate. 24 25 The only ground offered by the applicant Reasons for Judgment (Porte J.A.) 1 that can be considered a ground relates to 2 matters which the Learned Magistrate took into 3 account in imposing a sentence less than the 4 tariff set out in the guidelines. 5 The application for leave to appeal is 6 therefore refused, and the sentence is 7 consequently affirmed. 8 CHADWICK, P.: The application is 9 dismissed. 10 THE APPELLANT: Thank you. 11 12 13 14 15 16 COURT REPORTER'S CERTIFICATE 17 Certified correct to the best of my skill and 18 ability, dated the 7th day of December 2009. 19 20 21 Kerri Francella 22 23 24 25