Diaz v R; Ebanks v R

JurisdictionCayman Islands
JudgeSchofield J.
Judgment Date03 September 1990
CourtGrand Court (Cayman Islands)
Docket NumberNos. 8 and 95 of 1990
Date03 September 1990
Diaz
and
Regina
Ebanks
and
Regina

Schofield, J.

Nos. 8 and 95 of 1990

Grand Court

Criminal law - Appeal against sentence — Proper approach to be applied to sentence in respect of offender convicted of consumption of cocaine — Appellant regarded as a rehabilitable offender — Several previous convictions for drugs and drug related offences — Appeal allowed to extent of reducing the sentences of imprisonment on his three charges from 6 months to 3 months to run concurrently.

Criminal law - Appeal against sentence — Proper approach to be applied to sentencing in respect of consumption of cocaine — No evidence of appellant taking steps to rehabilitate himself — Appellant had two charges of consumption of cocaine, previous convictions and a number of drugs — Sentenced to serve consecutive terms of 6 months imprisonment for each offence — Suspended prison sentence activated — Appeal dismissed.

Appearances

Mr. John Furniss for the appellant Diaz.

Mr. Graham Hampson for the appellant Ebanks.

Mr. Ivor Archie for Crown.

Schofield J.
1

These appeals were consolidated because they raised mutual issues on the proper approach to be applied to sentence in respect of a offender convicted consuming cocaine. Because it is often difficult for the court to chose the appropriate approach to sentence in respect of such offenders and to chose the type of sentence once the approach has been determined, I called upon Robert Jones the Alcohol and Drug Co-ordinator for the Cayman Islands Government to give his expert opinion.

2

A summary of his evidence is as follows. Those offenders who find themselves before the courts for possession or consumption of cocaine (and (we are here, of course, not dealing with suppliers) are likely to be dependent on the drug or addicted to it. An addict will continue to use a drug despite adverse consequences. He will not, therefore, be deterred by the possibility of a court appearance or any consequences of such an appearances. However, those who are dependent upon drugs can be deterred as, of course, can those who have never touched addictive drugs.

3

A first offender for consumption of cocaine will not usually be sentenced to an immediate term of imprisonment. It is the repeat offender who is usually to sentenced. The majority, if not all, of those who find themselves in prison for use of cocaine are addicts. Ironically they are the group who are undeterred by the possibility of a prison sentence. In Cayman the odds against an addict being rehabilitated are heavily staked against him at present. There is no proper schemes are being worked upon. The ideal way of dealing with a repeat offender is to give him a choice between treatment and imprisonment. Once such treatment is available in Cayman, however, it will take legislation to allow the sentenced to offer this choice to an offender because our present legislation would not allow for such an approach in practice. A suspended prison sentence can only be conditional upon the offender committing no further offence within its operational period. No condition may be attached that the offender undergoes treatment; so that sentence does not offer the court the flexibility which would be required by any new approach to sentencing. There is a statutory bar to the imposition of a prohibition order for a user of hard drugs (see section 18 of the Misuse Drugs Law). Of course, any amendments to the Law are matters for the Legislature and not for this Court.

4

Regarding a rehabilitative approach to sentence two main question are raised. Firstly, how does the court identify an addict who is rehabilitable? Secondly, if rehabilitation is considered the proper approach to sentencing, what course should the court follow?

5

On the first question, an addict requires assistance to cope with is addiction. He must take the choice to rehabilitate himself; it cannot be thrust upon him. There are various indications which can show that an addict has taken necessary choice. Whether he has gone forward to seek help and guidance. Whether he is assiduously following the required course. Whether he has the necessary family support. These and other factors are strong indications of whether the court can legitimately adopt a rehabilitative approach. Mr. Jones and his team are willing to provide written reports for the court, with the concurrence of the offender, in relation to offenders who have approached his department. Such reports will inform the court whether the indications are positive. I understand Mr. Jones will liaise with the Clerk of the court to draft a form of report which will meet the court's requirements.

6

The approach which the court should adopt is a difficult question because the sentencing machinery is not available to encourage an addict along the correct path. In Mr. Jones' view imprisonment cannot have an rehabilitative effect unless coupled with treatment. Treatment is not...

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