Court Dismisses Crown’s Appeal Against Sentence

January 25, 2020

The Court has upheld a suspended sentence of a woman who was convicted of importing fentanyl, with the Crown having appealed the sentence claiming it was “manifestly inadequate.”

In describing the background to the case, the ruling said, “This is an appeal by the Crown against sentence on the ground that the sentence imposed was manifestly inadequate.

“On 29 March 2018 the Respondent, a female Bermudian national, was convicted in the Magistrates’ Court on a retrial for importation of 1.45 grams of the controlled drug cannabis and 92 grams of the controlled drug acetyl fentanyl.

“Having been unsuccessful before me in her second appeal against conviction, the Respondent was remitted to the Magistrates’ Court to be sentenced.

“In respect of the cannabis, a term of 90 days imprisonment was imposed. The target of the Crown’s appeal, however, is on the 4 ½ year prison sentence which was passed for the second count related to the acetyl fentanyl.

“In passing the 4 ½ year term of imprisonment, the learned Magistrate, Mr. Khamisi Tokunbo, suspended 4 years of the 4 ½ year total leaving the Respondent to serve an immediate term of 6 months’ imprisonment. A two year probation term was also imposed.”

“The prosecution argued that the suspension of 4 years from the 4 ½ year sentence rendered the sentence manifestly inadequate. But for the suspension imposed, Ms. Simons eventually accepted that she would not otherwise argue the 4 ½ year prison sentence to be manifestly inadequate.

“The Crown submitted at the sentence hearing in the Magistrates’ Court that the appropriate range of sentence would be 5-8 years imprisonment.”

In describing the decision about Mandaya Thomas’ case, the ruling said, “I accept that the passage of time which lapsed between the date of the offence and the sentence hearing [notwithstanding that the Respondent was unsuccessful in the second appeal] in addition to the her more recent personal developments which included the birth of a new baby and a serious road traffic accident were all proper considerations for the Magistrate to have regard to in deciding whether to suspend the sentence.

“I also find that the newness of the drug acetyl fentanyl to Bermuda was probative of the Respondent’s contention that she was unaware of the extent of serious harm related to the drug. The Magistrate was entitled to consider this point as part of the ‘good reason’ test he rightly applied.

“For this reason I do not think it right to interfere with the learned magistrate’s exercise of discretion in allowing the suspension of 4 years of the sentence for 2 years.

“In all the circumstances I do not consider the sentence to be manifestly inadequate.”

The Judgement follows below [PDF here]

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