McNulty v R

• Jurisdiction: Cayman Islands
• Judge: (Harre, J.)
• Judgment Date: 13 March 1991
• Court: Grand Court (Cayman Islands)
• Date: 13 March 1991

Grand Court

(Harre, J.)

McNULTY, CARMONA and FOX

and

R.

G. Hampson for the first appellant;

T. Shea for the second appellant;

T. Tavares-Finson for the third appellant;

Ms. A. Wong and I. Archie, Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Davies(1978), 68 Cr. App.R. 319, dicta of Lord Widgery, C.J. applied.

(2) R. v. NewtonUNK(1982), 4 Cr. App. R. (S.) 388; [1983] Crim. L.R. 198, applied.

Criminal Procedure-sentence-co-accused-principal co-accused may mitigate sentence for assistance to police even if reduces sentence below that of subordinate co-accused-mitigation justified in serious case, e.g. warranting minimum of 5 years” imprisonment

Criminal Procedure-sentence-mitigation-burden of proof-burden on defendant pleading not guilty and not contradicting prosecution case to prove mitigating claims-no burden on prosecution to disprove claims if no defence evidence in support-court may reject claims as implausible

The appellants were charged in the Magistrate”s Court, George Town with possession of cocaine with intent to supply.

The appellants were recruited to transport 848.4 kg. of cocaine to Mexico in a yacht. They docked in the Cayman Islands and a routine Customs search revealed the cocaine hidden in the second appellant”s cabin. They were arrested and charged with possession with intent to supply. The first appellant, the captain of the yacht, immediately indicated his intention to plead guilty and was open and co-operative with the authorities throughout the investigation.

At the trial, all three appellants pleaded guilty. It was specially pleaded in mitigation by the second appellant that he was a passive hired hand with no real culpability and by the third appellant that she had discovered the boat was carrying cocaine only after they had already started the journey and could have done nothing about it at that stage. These pleas were rejected in view of the massive scale of the exercise

and the reasonable conclusion that the crew members would have been chosen for their reliability. Each of the appellants was sentenced to 11 years” imprisonment. The court recognized that as captain of the boat, the first appellant was the most culpable of the offenders and in the normal course would have been given the longest sentence. It nonetheless took into account his openness in the investigation by sentencing him to a term of imprisonment of no greater length than that passed on the other two appellants. In addition, he was fined $15,000 with 6 months” imprisonment in default and the first and second appellants were fined $10,000 and $20,000 respectively with 6 months” imprisonment in default in each case. They appealed against sentence.

Held, allowing the appeals in part

(1) For the offence of possession with intent to supply such a large quantity of cocaine (848.4 kg.), 11 years” imprisonment (a little more than half the maximum sentence) was neither manifestly harsh nor excessive but since the first appellant had co-operated with the police throughout the investigations, the court would reduce his sentence by 2 years. It was proper that the court should strike a balance between matching the crime with the punishment it deserved and giving a reduced sentence in acknowledgment of the offender”s assistance to the authorities. At the same time by demonstrating to other offenders that co-operation was worthwhile, the public interest might be better served if the general effect were to be greater control of crime in the community. This approach to sentencing was not recommended for minor crimes. An offender would have to be facing at least five years” imprisonment before such matters need be considered at all. In view of these considerations, it was appropriate that, although a more significant participant in the offence than the other appellants, the first appellant should receive a shorter term of nine years” imprisonment and his fine be reduced from $15,000 to $10,000 (page 242, line 33 – page 243, line 17; page 244, lines 14–28).

(2) In the situation in which significantly differing versions of the facts of an offence are put forward by the prosecution and defence following a plea of guilty, the court must resolve the issue before passing sentence. The normal rules with respect to the standard and onus of proof in criminal cases would apply. If the court is left in doubt, the defendant”s version must be preferred. However, there is a distinction to be drawn between differing versions of the facts, and matters put forward by the defence which do not amount to a contradiction of the prosecution”s case but to extraneous mitigation explaining the background to the offence or other circumstance which may lessen the sentence. Since these matters are likely to be unknown to the prosecution and the court, the court is not bound to accept them as true, whether or not they are challenged by the prosecution. In this situation it is for the defendant to make good his claims and he may call evidence to support them but if he fails to do so he cannot claim that the prosecution is obliged to disprove them. Moreover, the court may reject outright a defendant”s version of

his involvement if on its view of the evidence that version is manifestly false or wholly implausible. It is for this reason that the appeals by the second and third appellants against sentences of 11 years” imprisonment would be dismissed but since it was unfair that there should be any disparity in their fines, the fine on the third appellant would be reduced to $10,000 to bring it in line with the others (page 239, lines 20–39; page 240, line 34 – page 241, line 6).

HARRE, J.: McNulty, Carmona and Fox were each sentenced
to 11 years” imprisonment on their pleas of guilty to the offence of
possession of cocaine with intent to supply. In addition, McNulty
20	was sentenced to a fine of $15,000 with 6 months” imprisonment
in default of payment, and Carmona and Fox to fines of $10,000
and $20,000 respectively with 6 months” imprisonment in default
in each case.
The facts presented by the prosecution included the following.
25	McNulty, Carmona and Fox cleared Customs in Panama and then
sailed to an island in the San Bias group where they anchored and
spent the night on board. On the following day their vessel, the
yacht ‘Tempest,’ was loaded with packages and then set sail for
Mexico. On June 16th, about 10.30 p.m., ‘Tempest’ arrived in
30	Grand Cayman. All three persons were on board. The next
morning Customs and immigration procedures were carried out
on the vessel. McNulty declared himself captain and Carmona
and Fox declared themselves as crew. A search of the vessel was
carried out in the presence of the captain and when layers of
35	carpeting and cork tiles were removed in the forward cabin a
cement door was found. On removing the cement door a large
aperture was revealed containing a large quantity of packages.
One of the packages was opened in the presence of the captain,
McNulty, and was found to be a

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