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Monday, Oct 14, 2019

No deterrence: Magistrate says new sentencing guidelines for drugs ‘won’t work for BVI’

No deterrence: Magistrate says new sentencing guidelines for drugs ‘won’t work for BVI’

A local magistrate has said she believes the list of umbrella sentencing guidelines recently launched for all courts in the Eastern Caribbean is not suitable for drug-related offences committed in the British Virgin Islands.

These sentencing guidelines were developed so judges in the region could have a standard way of determining the penalty that a convicted person should receive.

But local magistrate, Ayanna Baptiste-DaBreo, said she is concerned they will not deter drug offenders in the BVI. She said following the guidelines in every drug case would “create havoc” in the BVI.

“If I use those sentencing guidelines, I would be encouraging everybody to start selling drugs because there is no punishment, really. The truth is if I am someone out there selling drugs with these sentencing guidelines, the cost to me of selling it … the profits would exceed compliance,” the magistrate said.

“Where is the deterrence? Where would be the fair punishment? I will follow them (the sentencing guidelines) and I will say where I would depart from them in the sentencing,” she added.

“I have found that those sentencing guidelines does not work for me on the drug offences. [But], for the other offences, they are fine,” Magistrate DaBreo further said.


What the guidelines say for drug offences

According to the Eastern Caribbean Supreme Court’s website, the guidelines for drug-related offences covers drug trafficking, cultivation, and possession with an intent to supply, import or export — whether as conspiracy or a substantive offence. 

 Apart from the judge’s responsibility to weigh all the aggravating and mitigating factors in each case before handing down a sentence, the new guidelines also say the punishment should be determined based on quantity and what type of role the offender played in the crime.

The roles a convicted offender can be found to play in the drug crime has been classified into three levels — ‘leading’, ‘significant’ and a ‘lesser role’. 

The lead role

To be classified as having a lead role in the crime, an offender must be the commercial drug buyer and/or seller. He/she must also be found to have ‘substantial links’ to have an influence on others in a chain, has close links to the original source, has an expectation of significant financial gain, uses business as a cover, and abuses a position of trust.

The significant role

For persons classified as having a ‘significant role’, they must be found to operate or manage functions within the illegal operation. Those category of offenders must also have been found to involve others in the operation whether by pressure, influence, intimidation or reward — especially if those involved are children.

According to the new sentencing guidelines, sale of drugs to minors and persons in prison would also fall under that category.

The lesser role

As it relates to how a person is classified in the ‘lesser role’ category, the court is required to look at persons who perform a limited function under direction. They are also considered to have played a lesser role if they are involved by pressure, coercion, intimidation, involvement through youth, naivety, or exploitation.

The court must also classify them in the ‘lesser role’ category if there is no influence on the drug operation’s hierarchy, if they have very little or no awareness or understanding of the scale of operation, or if they are trafficking drugs solely for personal use (considering the reasonableness of account in all the circumstances).

Classifying an offender by weight of drugs

As it relates to the weight of the drugs, offenders are classified into numerical categories — ‘one’ being the highest and ‘four’ the lowest.

Category One offenders are persons who were caught with 20 kilograms or more of cocaine and 400 kilograms or more of cannabis.

Category Two offenders are those caught with five to 20 kilograms cocaine and 50 to 400 kilograms of cannabis.

Category Three has to do with offenders with 100 grams to five kilograms of cocaine and one to 50 kilograms of cannabis.

And to be classified as a Category Four offender, a person must be found to have 100 grams of cocaine or up to one kilogram of cannabis.

The new sentencing guidelines state that offenders who fall in the lesser categories — three and four — must only receive penalties that are fines and/or no custodial sentences.

These new guidelines were launched in September but went into effect on October 1 across the region.

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