Sanderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN
S.C.A. NOS. 50, 51 & 52 OF 2001
ERROL TROWERS,
DEVON FERON
&
DERRICK G. EDWARDS
- VS -
REGINA
PROCEEDINGS had and taken by THE HONOURABLE
MR. JUSTICE SANDERSON on the 10th
day of May, 2002, George Town, Grand Cayman.
APPEARANCES:
For the CROWN: MS. S. LOOK LOY
For the DEFENDANT TROWERS: MR. L. AIOLFI
For the DEFENDANTS
FERON & EDWARDS: MR. J. FURNISS
(SANDERSON, J. -- ORAL REASONS FOR JUDGMENT)
FRIDAY, MAY 10, 2002
SANDERSON, J. (Orally):
There are three sentence appeals before me this morning, the first deals with Errol Trowers.
Mr. Trowers was charged and pled guilty to two counts of being concerned with the importation of cocaine. There were two separate transactions, one in late May and the other in early June 2001. Mr. Trowers arranged for two couriers to transport approximately 12 and 15 ounces of cocaine from Jamaica to Grand Cayman. He was sentenced to seven years and eight years consecutively, for a total of 15 years.
Mr. Aiolfi argues that the sentence is too high on the basis that Mr. Trowers was encouraged to commit these offences by Mrs. Forrester, who did so in cooperation with police here after she was arrested in connection with bringing in 41.5 ounces of cocaine. She had made contact with Mr. Trowers before her arrest, and he had agreed that he would find couriers. After her arrest, she continued her discussions with him and those
(SANDERSON, J. -- ORAL REASONS FOR JUDGMENT)
discussions were recorded from the police telephone line, as I understand it.
Mr. Aiolfi submits that but for this encouragement Mr. Trowers would not have committed these offences and that this should be a mitigating factor. He relied upon the English authorities of R. vs. Underhill[1979] 1 C.A.R. 270 and R. vs. Bigley and Bigley [1993] 14 C.A.R. 201. Those cases support the proposition that where there is encouragement or even entrapment, but when it does not amount to a defence, the Court is still entitled to take that conduct into account in mitigation of sentence.
The learned magistrate considered and rejected the same argument that was made to her. She did so on the basis that the transcript of the phone conversations revealed to her that Mr. Trowers was not a new player in this game.
Miss Look Loy has taken me to the various portions of the conversation to support the learned magistrate's decision.
I think that since no evidence was led before the magistrate at the guilty plea, I am
(SANDERSON, J. -- ORAL REASONS FOR JUDGMENT)
in as good a position as she was to consider what should be made of those remarks. In other words, there is no assessment of credibility, it is based purely upon the written record and that written record before me is identical.
I have considered everything that Miss Look Loy pointed out that was said during these conversations. One example is that he wanted to get one thousand dollars per ounce. I considered that and all of the other facts in the context of all the facts that were brought before me in this case.
I cannot say that the evidence satisfies me so that I am sure that he was not encouraged by Mrs. Forrester to commit these crimes. I think he was. I am not satisfied so that I am sure that the taped conversations prove that he was an established dealer or middleman.
I was referred, by Mr. Aiolfi, to the case of R vs. Marlon Brando Ebanks, CICA 8/01 where the Court of Appeal reduced two consecutive sentences of seven-and-a-half years which was a total of 15 years to seven years each or a total of fourteen years. The amount of cocaine was similar. However, Mr. Ebanks had 47 prior
(SANDERSON, J. -- ORAL REASONS FOR JUDGMENT)
Mr. Furniss has asked me to consider a sentence of five or five-and-a-half-years, based upon two decisions of our Court of Appeal. One is Charmaine Smith, where the sentence of seven years was reduced to five years. The other is R. vs. Denise McKay, CICA 9/01.
The sentences in those two cases were slightly lower than the present. Each case must be decided on the particular facts. The guidelines for these offences was 12 years at the time the crime was committed. The learned magistrate made what she considered to be appropriate adjustments for the early guilty pleas and subsequent cooperation, which was significant.
I cannot see any error in principle in her sentencing. I think that reducing the sentences from six-and-a-half to five-and-a-half years would amount to tinkering. Accordingly, these two appeals are dismissed.
MR. FURNISS: Obliged, My Lord.
MR. AIOLFI: Obliged.
WHEREUPON ANOTHER MATTER SPOKEN TO...
REPORTER'S CERTIFICATE
I, LISA M. BAKER, Official Court Reporter, hereby certify that the foregoing pages are, to the best of my skill and ability, a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.