The Queen v Ryan Willingham-Walker
| Jurisdiction | Bermuda |
| Judge | C. Greaves PJ. |
| Judgment Date | 31 October 2017 |
| Neutral Citation | [2017] SC Bda 94 Crim |
| Date | 31 October 2017 |
| Docket Number | Criminal Jurisdiction 2017 No 12,CRIMINAL JURISDICTION 2017: No. 12 |
| Court | Supreme Court (Bermuda) |
[2017] SC (Bda) 94 Crim
In The Supreme Court of Bermuda
Hon. C. Greaves PJ.
CRIMINAL JURISDICTION 2017: No. 12
Mr. Charles Richardson for the Defendants
Ms. Nicole Smith and Ms. Larissa Burgess for the Crown
Criminal law — Misuse of Drugs Act 1972 — Sentencing — Possession with intent to supply 118 grams of cocaine — 135 grams cannabis — Drug equipment.
On 17th October 2017 the defendant Mr Walker pleaded guilty to counts 2, 3, 4, 5 and 8. On the 23 rd October 2017, the defendant Mr Marques pleaded guilty to counts 9, 10, 11 and 12.
Mr Walkers' friend, Ms Griffith, was discharged from the indictment and her counts together with others pertaining to the two defendants remain on file not to be proceeded with without the courts' leave.
Both defendants indicated they desired no presentencing reports. Sentencing was fixed for 27 th October 2017. On 27 th October submissions were heard in respect of Mr Marques and due to some issues raised by Mr Walker in his submissions, the remaining hearing was adjourned to the 31 st October.
In respect of Mr Marques, the prosecutor advocated for various sentences relating to those counts excluding count 10. There is no dispute between the prosecution and the defence in respect thereof.
In respect of count 10 (possession of 118.41 grams of cocaine with intent to supply), the prosecution advocated a sentence of 12 years, taking into account as a mitigating factor, his guilty plea, and as an aggravating factor his breach of the public trusts as a customs officer. Counsel for Mr Marques submitted that to be excessive and advocated a sentence of no more than 8 years, starting from a basic of 5 years and taking into account the same aggravating factor.
The prosecution relied upon the following cases in support:
R v Richards, Davis and Hall 1991 Bda LR 15 CA. in which the defendants were sentenced to 12, 11, and 8 years respectively, after a guilty plea, for conspiracy to supply and importation of 135grams of cocaine.
The Court of Appeal established that a sentence of between 8–12 years would be appropriate for a conspiracy to import a quantity of cocaine even if the quantity was small. It found that 130 grams was substantial. It found that given the importance of the cruise ship business to Bermuda, importation by crew members was an aggravating factor. It is not in dispute in this case that Mr Marques' position as a customs officer is a substantial aggravating factor.
In R v Michel Brown 1993 Bda LR 20, the defendant was sentenced to 14 years imprisonment, after trial by judge and jury, for possession of 148 grams of cocaine with intent to supply. That sentence was reduced to 10 years by the Court of Appeal.
There, relying on R v Richards and R v Ward et al, and R v Wilson 9 Crim. App. 18/88, the Court said, the possession of cocaine for supply should normally carry a sentence of 8 years upon a guilty plea; that a sentence of 10 years would be proper and could be more severe if the quantity of cocaine is larger.
In R v Daymon Simmons [2016] Bda LR 105, the trial judge affixed a sentence of 6 years imprisonment upon the defendant who pleaded guilty to possession of 385 grams of cocaine in an increased penalty zone, taking into account a discount for the guilty pleas and adding back an increase for the IPZ.
The Court of Appeal reasoned, applying the guilty plea factor and the IPZ factor, that the appropriate sentence might have been 11 1/2 years. It also acknowledged the difficulty and anomalies such a mathematical sentencing structure could lead to.
Without engaging in mathematical tangle, the court increased the sentence to 9 years.
It is instructive that in that case the Court of Appeal referred with approval to R v Gibbons and Beach [2009] Bda LR 41 in which the cocaine was substantially smaller but in which there was evidence of trading. That was a case in which the defendants had elected to be tried on indictment and defence counsel argued that the quantity was such that at the Magistrates Court level the sentence would have been quantified in months. The Court rejected that argument and upheld the 8 year sentence.
It is evident from these cases that the appropriate sentence for possession with intent to supply in the range of 130 grams is between 8 and 12 years regardless of the mathematical formula.
Defence counsel relied on R v Victoria Zambardi (Crim App) 1995:5, there upon a guilty plea for possession with intent to supply 340.35 grams of cocaine, the defendant was sentenced to 10 years, upheld by the Court of Appeal.
In R v Albert Peyton No.11 of 1997 CA, the Court of Appeal upheld a sentence of 14 years for possession with intent to supply 980.3 grams of cocaine, after trial.
There the CA referred to the leading cases of Richards, Davis and Hall and re-emphasized the 8–12 year tariff.
Counsel rightly submitted that the drugs in that case were more substantial by a great degree than they are in the present case-and the defendant had the benefit of a full trial.
In R v Jamie Cox, [2005] Bda LR 47, a sentence of 4 years imprisonment upon a guilty plea for importation with intent to supply 361 grams of cocaine was held manifestly inadequate and a sentence of 6 years was substituted.
That sentence was apparently influenced by the particular facts of that case which tended to suggest that the jury might have felt that the importation was accidental, in the sense that the drugs were not intended for Bermuda. In any event the CA still emphasised the rulings in Zambardi.
Defence counsel also referred to R v Willston Davis [2006] Bda LR 49, in which a sentence of 12 years imprisonment after trial appeared not have been disturbed by the CA. The quantity of cocaine is not stated in the judgment. Consequently I do not find that authority particularly helpful.
Also cited is a sentencing certificate of 3–6 years imprisonment in R v Antoine Kent No. 1 of 2016, per Simmons J. It does not state the quantity of drugs. I am unable to rely upon it.
Upon writing this judgment I did not find the issue of...
To continue reading
Request your trial