R v Russell, Smith, Straumann and Trench

• Jurisdiction: Cayman Islands
• Judge: McDonald-Bishop, Ag. J.
• Judgment Date: 10 September 2019
• Court: Grand Court (Cayman Islands)

R.

and

RUSSELL, SMITH, STRAUMANN and TRENCH

(McDonald-Bishop, Ag. J.)

GRAND CT. (Cayman Islands)

Criminal Procedure — sentence — mitigation

Held: (1) There was no basis to reduce the sentence from the starting point to make allowance for the operation of the principle of legitimate expectation and to fit the sentence within the jurisdiction of the Summary Court. The principle of legitimate expectation was not applicable. The Magistrate in this case had no authority to take the pleas in the circumstances she did, without the prosecution or defence having been put to their election as to the mode of trial. Where a plea was taken in the Summary Court in cases which were triable either way without an election first having been made as to the mode of trial, the plea was a nullity and the proceedings would be invalidated (R. v. De Acosta, 2006 CILR 362, referred to). The prosecution having exercised their election to have a Grand Court trial and the pleas having been declared a nullity, the defendants could not properly have had a legitimate expectation to be given a sentence in the Grand Court that did not exceed the sentence that could have been imposed by the Summary Court (R. (Davidson) v. Nottingham Mags.' Ct., [2000] 1 Cr. App. R. (S.) 167, distinguished).

(2) The Cayman Islands Sentencing Guidelines did not expressly recognize delay due to no fault of the defendant between the commission of an offence and disposal of it as a relevant mitigating factor. However, the UK Sentencing Guidelines explicitly did so. In the present case, any unfair operation of delay was partially mitigated by the fact that the defendants were entitled to be credited for time spent in custody. The defendants had been in custody awaiting sentence for about 8 months following their admission of guilt at the earliest opportunity. It was reasonable for the defendants to receive a 3-month reduction in sentence for the delay in the proceedings.

The defendants were initially charged with importation of ganja, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision). However, as they had been intercepted outside Cayman territorial waters, the prosecution withdrew that charge and laid a new charge of possession of ganja, contrary to s.19(2)(a). The defendants pleaded guilty to that offence in the Summary Court. At the time of the guilty pleas, counsel and...