R v Paynter (Sentence)
| Jurisdiction | Bermuda |
| Judgment Date | 12 April 2023 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Criminal Jurisdiction 2019 No 18 |
[2023] Bda LR 35
Criminal Jurisdiction 2019 No 18
In The Supreme Court of Bermuda
Possession of diamorphine with intent to supply (317.3 g) — Possession of ammunition — Mandatory minimum and maximum sentences — Proportionality principle
The following cases were referred to in the judgment:
R v Rumley [2021] Bda LR 5
Rumley v R [2021] Bda LR 122
Cox & Dillas v R [2008] Bda LR 65
Roberts v R [2013] Bda LR 18
R v Morris [2017] Bda LR 128
Mallory v DPP [2011] Bda LR 30
Davy v R [2021] Bda LR 40
Vlcek v R [2022] Bda LR 16
Zegelis v R [2014] Bda LR 28
Lottimore & Hatherley v R [2015] Bda LR 5
Brown v R [2017] Bda LR 50
Rosado v Duffy [1990] Bda LR 33
Mr A Richards for the Crown
Mr M Daniels for the Defendant
RULING of Wolffe, J
1. On 9 March 2023 a jury found the Defendant guilty of 1 count of Possession of a Controlled Drug contrary to section 6(3) of the Misuse of Drugs Act 197 (the “MDA”)(Count 1 on the Indictment), and 1 count of Possession of Ammunition Without a License contrary to section 3(1)(a) of the Firearms Act 1973 (“FA”)(Count 2 on the Indictment).
2. Briefly, in respect of the possession of a controlled drug with intent to supply count the Prosecution's case was that on 11 April 2019 members of the Bermuda Police Service had cause to stop the Defendant's work van on Middle Road in Warwick Parish and as they were doing so they saw him place a white plastic bag behind the passenger seat and to the rear of the van. Upon a search of the rear of the van the white plastic bag was found to contain a manila coloured envelope which later on the same day was discovered to contain a magazine. This magazine was opened and was seen to contain two (2) heat sealed packages which each had a brown substance/powder inside. An examination by the Central Government Laboratory revealed that one of these packages contained 238.8 grams of the controlled drug diamorphine (also known as “heroin”) with 31% purity, and that the other packages contained 138.5 grams of diamorphine (heroin) with 56% purity. Therefore, the total amount of heroin seized was 371.3 grams.
3. An expert in the trafficking of controlled drugs found that on the streets of Bermuda the 371.3 gram of heroin would yield over 49,000 “decks” which translates to an overall total retail price of $998,186.
4. In respect of the possession of ammunition without a licence count, the jury heard that also on 11 April 2019 police officers conducted a search of the Defendant's residence located in Devonshire Parish and once therein they seized several items (which were entered into evidence at trial). On a shelf in a kitchen closet was a shoebox which contained 6 9mm rounds of ammunition which although were in poor condition were, as found by a firearms expert, capable of being fired correctly.
5. It is against this factual backdrop, which must have been accepted by the jury in reaching their unanimous guilty verdicts, that I will sentence the Defendant.
6. Prosecution and Defence Counsel were ad idem in relation to the following and therefore there in no need for any extensive elucidation on my part:
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(a) Pursuant to section 27(1)(a) of the MDA, that the maximum penalty for possession of a controlled drug with the intention to supply is life imprisonment.
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(b) Pursuant to section 27B of the MDA as read with Schedule 5 of the MDA, that where the offence involves diamorphine (heroin) the Court shall have regard to the (i) street value of the controlled drug and (ii) the destructive effect on society of the controlled drug, and then, add an increased sentence of 50% to the basic sentence.
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(c) Pursuant to section 30A of the FA as read with Table 2 of Schedule 1 of the FA, that for a first offence of possession of ammunition that the punishment is imprisonment for not less than 12 years and not more than 17 years.
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(d) Pursuant to section 27F of the MDA, that where a person is convicted of an offence under the MDA and also convicted of an offence under the FA on the same Indictment then the sentences for each offence should run consecutive to each other.
7. Taking the facts of this case, as well as the above sentencing guidance of the MDA and the FA (individually and together), there is no doubt that the Defendant is facing a substantial immediate term of imprisonment. However, before arriving at the eventual sentence which is appropriate in this case it is important that I first deal with matters which were raised by both Counsel and which will ultimately determine the sentence that I do mete out. In particular, the operation of the mandatory minimum sentences set out in Table 2 of Schedule 1 of the FA and the fundamental principle of proportionality as stipulated in section 54 of the Criminal Code Act 1907 (the “Criminal Code”), and, the interplay between the two.
8. In respect of mandatory minimum sentences, and its overlap with the proportionality principle, I covered such in my sentencing decision in the Supreme Court matter of R v James Robert Rumley[2021] Bda LR 5 (“Rumley”). The defendant in that case appealed against sentence to the Bermuda Court of Appeal and his appeal was cited as James Robert Rumley v R[2021] Bda LR 122. In dismissing the appellant's appeal against sentence Bell JA noted that I “covered the relevant law on mandatory minimum sentences” and he did so, it would appear, without any criticism of my recitation of the law in that regard. I will therefore refer to the comments which I made on mandatory minimum sentences in my Supreme Court sentencing decision.
9. The bare bones facts of Rumley were that on 23 June 2019 and on further 2 occasions on 14 October 2019 that the defendant imported into Bermuda component parts of a firearm from FedEx facilities located in the State of Pennsylvania of the United States of America. To wit: a “Taurus” handgun frame grip with trigger, two (2) top slides and barrels, trigger parts and mechanism, slide parts, a magazine catch, and a locking block assembly. By a unanimous decision a jury found him guilty of the offences and I subsequently sentenced the defendant to 14 years imprisonment on all counts. In doing so, I was compelled to have regard to the mandatory minimum sentences set out in section 30A of the FA as read with Table 2 of Schedule 1 of the FA i.e. that which I must have regard to when sentencing the Defendant in the case at bar.
10. In Rumley I said that:
“By virtue of the imposition of these mandatory sentences the Legislature laid down sentencing parameters which the Court should consider when sentencing offenders who have committed offences of the same character as those committed by the Defendant. On the face of it, it appears that the mandatory minimum sentence of 12 years imprisonment should only be reserved for those who plead guilty to a relevant firearms offence, have no previous convictions, and who come with reasonable mitigating circumstances. Ergo, that the mandatory maximum sentence of 17 years imprisonment for such offences should only be for those who, whether they pleaded guilty or were found guilty after a trial, are repeat offenders and/or have committed the most egregious variety of the relevant offences. Whether the eventual sentence falls at or somewhere between the mandatory minimum and maximum terms of imprisonment would of course be determined by any mitigating or aggravating features of the case. Any sentencing judge would therefore be cautious to venture outside of those minimum/maximum sentencing guardrails because to do so could reasonably be perceived as acting in a way which is contrary to the Legislature's intent and to standard sentencing guidelines.
But the mandatory minimum/maximum sentences require further qualification. Ms Greening helpfully referred the Court to the Bermuda Court of Appeal authorities of David Jahwell Cox v R and Jahki Dillas v R[2008] Bda LR 65 which addressed the constitutionality and application of mandatory minimum sentences of imprisonment for the specific offence of possession of a bladed article under section 315C(6) of the Criminal Code Act 1907 (the “Criminal Code”). Unlike the issue advanced by Mr John Perry QC (counsel for Appellant Cox) in Cox and Dillas, Ms Greening in the case at bar did not proffer a strict stand-alone argument that the mandatory minimum sentences set out in Table 2 of Schedule 1 of the Act breached the Defendant's fundamental rights and freedoms under section 3 of the Bermuda Constitution Order 1968 i.e. that “No person shall be subject to torture or to inhumane or degrading treatment or punishment”. There is therefore no need for me to directly address the issue as to whether the mandatory minimum sentences under the Act are unconstitutional. However, like Mr Perry, Ms Greening did argue that the mandatory minimum sentences under the Act are still subject to section 54 of the Criminal Code which speaks of the application of the fundamental sentencing principle of “proportionality”. That is, that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
11. I then went on...
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