Drug convict loses bid to have 11-year sentence reduced

(CMR) The Court of Appeal has dismissed an application by Andrae Cain for leave to appeal against a sentence of 11 years imprisonment for the importation of .63 kilos of cocaine in a tin of cheese into the Cayman Islands. Cain, a Jamaican who was living in Geroge Town, did not transport the cocaine himself but reportedly arranged for its transportation into the Cayman Islands.

Cain’s defense contended that the judge should have used a lower starting point in his sentence based on judgments made in similar cases.

Acording to court documents, on 30 April 2021, a man called Odain Davis took a flight from Kingston, Jamaica, to Grand Cayman. His luggage included a suitcase that had been handed to him by a female at the airport shortly before his departure. Davis was stopped by Customs &Border Control on arrival in Cayman, and .63kilos of cocaine were found concealed in a tin of cheese in the suitcase which he had been given at Kingston airport. Davis denied any knowledge of the cocaine and said that he had been told to give the suitcase to Cain on arrival.

When interviewed subsequently, Cain accepted that he had asked Davis to collect the suitcase from the female at Kingston airport and bring it to him in Cayman, but he denied any knowledge of the cocaine in the suitcase.

Cain, Davis, and Cain’s cousin Joseph Cain were all subsequently charged in relation to the importation and tried before a jury. Davis and Joseph Cain were acquitted, having said that they had no knowledge of the cocaine, but Cain was convicted.

Justice Richards, in her sentencing judgment, said Cain’s involvement was evident in his call to Davis the day before the importation, swearing and cursing at him in persuading him to carry the suitcase. She was satisfied that there was overwhelming evidence from the various phone messages produced at trial that Cain had involved others in the operation, whether by persuasion, influence, intimidation, or reward. She further stated that the exchanges between Cain and a man called Alex Kesto showed that he had some awareness and understanding of the scale of and arrangements for the operation

Having referred to and considered a number of other cases in her judgment, the judge concluded that the starting point of 15 years was appropriate, having regard to the quantity of cocaine and the role Cain played. She then took into account the mitigating factors of Cain’s age at the time (36) and that he had no previous convictions and was of good character.

The court also heard that he had good personal qualities and had been gainfully employed, and he was the father of young children. Incarceration in the Cayman Islands would mean that he would be separated from his family in his home country and would be unable to provide for and support his children. She, therefore, reduced the starting point by 4 years and imposed a sentence of 11 years imprisonment.

Cain, represented by Kelly Myers Attorneys, submitted that the judge should have taken the lower starting point mentioned in the Chief Justice’s guideline of 10 to 12 years rather than of 15 years. He referred to the case of Millwood v R[2016], where the Court of Appeal had taken a starting point of 15 years for the importation of 2.86 kilos of cocaine, a significantly greater amount than in his case. After allowance and mitigation, a sentence of 10 years was imposed in that case.

However, in a judgment delivered last month, the Court of Appeal pointed out that the offender, in that case, was a simple courier, and the court specifically placed weight on this and described it as a lesser role when reducing the starting point from the 17 years taken by the judge to one of 15 years. Cain’s role in the present case was significantly greater than the role in Millwood, the judgment stated.

The judgment further stated that “Whilst it can sometimes be of assistance to be referred to other cases where they have sought to establish guidelines and principles, it is not usually helpful to look at the detailed facts of other cases in order to point to particular factual aspects which could be said to be more or less serious than in the instant case and therefore to suggest a particular sentence in the instant case. It is usually impossible from a note of another case or of a sentencing judgment to capture all the factors which may have influenced the court on that other occasion.

The Court of Appeal indicated that in trafficking offenses, key aspects for consideration by a sentencing court are the nature and the scale of the offender’s involvement and the amount of the drug. In Cain’s case, the nature and scale of the applicant’s involvement was significant, the judgment said.

The Court also stated that the amount of the cocaine imported by Cain was several ounces and therefore fell within the expression “substantial importation” as used in the 2002 Guidelines.

In the circumstances, it cannot possibly be said that the sentence of 11 years imposed by the judge was manifestly excessive, and, accordingly, we dismiss this application, the judgment concluded.