Haywood v The Queen
| Jurisdiction | Barbados |
| Judge | Burgees,Mason JJA,Moore JA |
| Judgment Date | 29 January 2016 |
| Neutral Citation | BB 2016 CA 3 |
| Docket Number | Criminal Appeal No. 26 of 2010 |
| Court | Court of Appeal (Barbados) |
| Date | 29 January 2016 |
Court of Appeal
Moore, J.A.; Mason, J.A.; Burgess, J.A.
Criminal Appeal No. 26 of 2010
Mrs. Kristin C.A. Turton, Attorney-at-Law for the appellant.
Mr. Charles Leacock, Q.C, Director of Public Prosecutions in association with Mr. Anthony Blackman and Mr. Lancelot Applewhaite, Attorneys-at-Law for the respondent.
Criminal practice and procedure - Appeal against sentence — 6 years' imprisonment for importation — 6 years' imprisonment for possession — 8 years' imprisonment for trafficking — Whether the trial judge erred in law by acting contrary to established principle that a person should not be punished twice for the same act or omission by imposing sentences of imprisonment on the appellant for trafficking and for possession of a controlled drug having already imposed a sentence of imprisonment on the appellant for importation of the said controlled drug on the same facts — whether the sentences were excessive.
Burgees and
The Drug Abuse (Prevention and Control) Act, Cap. 131 (Cap. 131) is at the heart of this appeal. That Act creates, among others and for purposes of this appeal, the following three offences. These are, by section 4 (3), the offence of unlawful importation of a controlled drug in contravention of section 4 (1) which sets out the elements of that offence (section 4 (3) offence); by section 6 (2), the offence of unlawful possession of a controlled drug in contravention of section 6 (1) wherein the elements of that offence are set out (section 6 (2) offence); and, by section 18 (4), trafficking in a controlled drug in contravention of section 18 (2) wherein the elements of that offence are set out (section 18 (4) offence). The section 18 (4) offence is defined by section 18 (1) to include, among other things, (a) the unlawful importation and (b) the unlawful possession of a trafficable quantity of a controlled drug. The Act further provides that cannabis, the drug involved in this case, is a controlled drug and that fifteen grammes or more of that drug is a trafficable quantity.
Section 4 (3) and section 6 (2) offences are punishable on conviction on indictment by a fine not exceeding $500,000.00 or by imprisonment for a term not exceeding 20 years or both. Any section 18 (4) offence is punishable on conviction on indictment by imprisonment for up to life.
In the case before this Court, the appellant was charged under section 4 (3), section 18 (4) and section 6 (2) respectively of Cap. 131 on an indictment containing the three counts of importation of a controlled drug, drug trafficking and possession of a controlled drug. The particulars of the respective offences as stated in the indictment were as follows:
(i) “[He] on the 16th day of March 2006 in the parish of Saint Peter, in this Island, did unlawfully import (sic) controlled drug, namely 370.01 kilograms of Cannabis, a narcotic drug listed in Part 1 of the First Schedule of the said Act.”
(ii) “[He] on 16th day of March 2006 in the parish of Saint Peter, in this Island, did traffic in a controlled drug, to wit, Cannabis, in that he had in his possession a trafficable quantity of such drug, namely 370.01 kilograms of Cannabis, a narcotic drug listed in Part 1 of the First Schedule of the said Act.”
(iii) “[He] on the 16th day of March 2006 in the parish of Saint Peter, in this Island, did unlawfully have a controlled drug in his possession, namely 370.01 kilograms of Cannabis, a narcotic drug listed in Part 1 of the First Schedule of the said Act.”
On 27 July 2010, the appellant was arraigned before Crane-Scott J. At that time he was unrepresented and pleaded guilty to the offences as particularized in the indictment.
The facts were then outlined to the Court by counsel for the Crown. Counsel recounted that on 16 March 2006, as a result of information received by the police, personnel of the Drug Squad went on duty to Six Men's, St. Peter. A number of persons were seen on the beach and in the sea.
A white pirogue was observed approaching the shore at a slow rate of speed and persons on the pirogue were throwing packages into the sea. The persons on the beach started to retrieve the packages and carry them to shore.
As the police approached the beach, the police encountered gunfire and a shootout ensued. The appellant was found later that night hiding under a dwelling house in Six Men's Village. He admitted to the police that he arrived on the boat which brought the cannabis to Barbados.
The appellant did not make any written or oral statements to the police.
Crane-Scott J ordered a pre-sentence report which was read into evidence by Miss Angela Dixon, Probation Officer, on 2 November 2012. After hearing oral submissions by attorney-at-law for the appellant, Miss Kristin Edwards (now Mrs. Kristin Turton) and by attorney-at-law for the Crown, Mr. Lancelot Applewhaite, in relation to the appropriate sentence, the appellant was sentenced by Crane-Scott J in the following order:
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(1) 6 years imprisonment for importation;
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(2) 6 years imprisonment for possession; and
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(3) 8 years imprisonment for trafficking.
The sentences were to run concurrently.
The appellant has appealed to this Court against the sentences imposed by Crane-Scott J on two grounds.
The first ground of appeal reads that:
“The Learned Trial Judge erred in law by acting contrary to the established principle that a person should not be punished twice for the same act or omission when she imposed sentences of imprisonment on the appellant for trafficking and for possession of a controlled drug having already imposed a sentence of imprisonment on the appellant for importation of the said controlled drug on the same facts.”
In our respectful view, this ground succeeds or fails depending upon the authority of this Court on its previous decision in Mentor et al v. R Crim App Nos. 31, 32 and 33 of 1992 (unreported) ( Mentor). Apart from it being cited with approval and distinguished by this Court in Coronell et al v. R Crim App Nos. 6 & 7 of 1995 (unreported) ( Coronell), Mentor has remained largely dormant. As a result of the commendable industry of counsel for the appellant, Mrs. Turton, in unearthing Mentor, it has become necessary to explore that decision with some particularity in this case.
We begin by exploring the facts of and decision in Mentor.
The facts of Mentor are that, on 7 January 1992, the Coast Guard received information that led to the dispatch of one of their vessels to Batts Rock, the Black Rock area near Brandons, St. Michael. A small boat with three men on board was seen near the shore but, as the Coast Guard vessel drew near, the engine of the small boat was heard to start and the boat unsuccessfully attempted to head for the open sea. It was rammed and boarded by the Coast Guard officers. Three men, the appellants Garcia, Mentor and Drayton, were arrested, and the boat, the men and the boat's contents were taken to Fort Willoughby. The contents were found to include the quantity of cannabis specified in the indictment.
The three appellants were jointly charged on an indictment containing four counts, namely, (i) being in unlawful possession of 96.147 kilograms of cannabis contrary to section 6 (2) of Cap. 131; (ii) trafficking in a controlled drug contrary to section 18 (4) of Cap. 131 (related to unlawful possession); the unlawful importation of the said quantity of cannabis contrary to section 4 (3) of Cap. 131; and (iv) trafficking in a controlled drug contrary to section 18 (4) of Cap. 131 (related to unlawful importation).
When the appellants were arraigned, Garcia and Mentor pleaded guilty to all counts. Drayton pleaded guilty on the first, second and fourth counts but not guilty to the third. Proceedings against Drayton on the third count were discontinued.
The appellants were each sentenced on the first count to 10 years imprisonment and fined $250,000.00 to be paid forthwith with a concurrent 10 year term of imprisonment in default of payment. Garcia and Mentor each received a like sentence on the third count. On the second and fourth counts, the appellants were each sentenced to 20 years imprisonment to run concurrently.
The appellants' appeal against their sentences was heard by a panel of this Court with impeccable credentials in criminal practice and procedure in Barbados (Williams CJ, Husbands JA and Smith JA). In our judgment, the ratio decidendi of the case emerges unmistakably from the following passage in the Judgment of the Court:
“Interesting points arose in the course of the submissions by counsel for the applicants that the sentences were excessive: (i) whether it was in order for (sic) indictment to include charges for unlawful possession under section 6 (2) as well as for trafficking under section 18 (4) based on the same alleged unlawful possession or to include charges of unlawful importation under section 4 (3) as well as for trafficking under section 18 (4) based upon the same alleged unlawful importation and (ii) whether the sentences were in breach of the rule that no person should be punished twice for the same act or omission. See section 22 (1) of the Interpretation Act Cap. 1 where it is enacted:
“22 (1) where any act or omission constitutes an offence under two or more than two enactments or under an enactment and at common law, the offender should be liable to be prosecuted and punished under either or any of those enactments or at common law, but shall not be liable to be punished twice for the same offence.”
The prosecution is entitled to prefer and proceed on, all charges that can be supported by the credible evidence that it has. It does not seem to us that any fault can be found with the way in which the indictment was pleaded and...
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