Banks v R; Kelly v R

• Jurisdiction: Cayman Islands
• Judge: Summerfield, C.J.
• Judgment Date: 06 September 1984
• Court: Grand Court (Cayman Islands)
• Date: 06 September 1984

Banks

and

R.

Kelly

and

R.

Summerfield, C.J.

Grand Court

Criminal practice and procedure - Sentencing — Multiple offenders — If neither offender merits more than mandatory minimum sentence, wrong to pass heavier sentence on more blameworthy offender merely to differentiate between seriousness of their involvement — Second or subsequent conviction — Offence involving hard drug is second offence within Misuse of Drugs Law (Revised), Second Schedule, Part B only if first offence also involved hard drug — if previous offence involved soft drug, accused properly treated as first offender.

Appearances:

N. Levy for the appellant Kelly;

The appellant Ebanks appeared in person.

A.S. Smellie, Crown Counsel, for the Crown.

Summerfield, C.J.

1 The appellant Eldon Ebanks was convicted of the offence of aiding and abetting the appellant Dave Kelly to sell a controlled drug, namely, cocaine hydrochloride being a salt of cocaine, less than 2oz. in weight. He was also convicted of the offence of unlawful possession of that controlled drug. The appellant Dave Kelly was convicted of the offence of selling that controlled drug and also the offence of unlawful possession of it. The amount of cocaine hydrochloride involved was 1.31g. All the offences arose out of the same facts.

2 The appellant Ebanks had a clean record. The appellant Kelly had four previous convictions, including one for smoking ganja in 1976, eight years ago. Both are young men in their early twenties.

3 The appellant Ebanks was sentenced to 12 months' imprisonment and a $2,000 fine or 6 months' imprisonment in default for the offence of possession and 3 years' imprisonment and a $10,000 fine or 12 months' imprisonment in default for the offence of aiding and abetting the sale.

4 The appellant Kelly was sentenced to 2 years' imprisonment and a fine of $3, 000 or 12 months' imprisonment for the offence of possession and 5 years' imprisonment and a fine of $12, 000 or 2 years' imprisonment in default for the offence of selling. The appeal in both cases is against sentence only.

5 The minimum penalty for a first offence of possessing a hard drug under Part B of the Second Schedule to the Misuse of Drugs Law (Revised) is one year's imprisonment and a fine of $1,000 if the quantity involved is less than 2oz. The minimum penalty for a first offence of selling or aiding and abetting the sale of a similar quantity of a hard drug is three years' imprisonment and a fine of $10,000. The sentence for a second offence is substantially heavier. No minimum sentence of imprisonment in default is prescribed, but normally such a sentence is necessary to discourage default. The length of such a sentence is within the discretion of the Court within the maximum prescribed. Neither appellant is in a position to pay the fines or any substantial part of any of them. The learned magistrate treated the appellant Kelly's conviction as a first offence for the purpose of Part B of the Second Schedule despite the earlier conviction of smoking ganja which is...