Supreme Court
Inferior Court Appeal No. 14 of 1992
7th May, 1993
GEORGE N. BROWN, KT., C.J.

Mr. Suhada Gamalath, Crown Counsel, for Appellant.
Mr. Dean Barrow, S.C., for Respondent Swan.
Appellant Hertular in person.

Appeal by the Crown against the imposition of minimum sentences on appellants after conviction of being in possession of 1 kg of cocaine for purposes of supplying under the Misuse of Drugs Act, Act No. 22 of 1990 - principles of sentencing - Each case to be judged on its own facts - Agent provocateur - Effect of finding of agent provocateur on sentencing - Magistrate placed too much emphasis on issue of agent provocateur and so misdirected himself on how finding should affect sentence - Fines too lenient in circumstances - Appeal allowed in part - Fines of $25,000. id/5 years imprisonment set aside - Fines of $35,000. id/6 years imprisonment substituted - Section 29(1) of Misuse of Drugs Act - Mandatory exercise not carried out - Magistrate required to determine whether convicted person has benefited from drug trafficking before passing sentence - Principles to be used in so determining - Prosecution then required to apply to have the value of the proceeds determined.

D E C I S I O N

The Defendants/Respondent appeared before the Magistrate on the 6th August, 1991, charged jointly with one Nigel Bouloy in answer to a charge of :-

"Possession of a controlled drug for the purpose of supplying for Drug Trafficking Contrary to Section 7 (1) and 7 (2) and Section 7 (4) read along with Section 17 (1) of the Misuse of Drugs Act, No. 22 of 1990."

There were four alternate charges filed. These were sworn under:-

(a) Section 6 (1) ; (2) Section 6 (1) (b) ; (3) Section 6 (1) (b) and 6 (3) (c) ; and (4) Section 6(1) (b) and Section 6(3) (a) of the said Misuse of Drugs Act, Act No. 22 of 1990.

There was sittings on the 6th, 12th 13th, 20th, and 21st August, 1991 and again on the 27th and 28th August, 1991. On 21st August, 1991, the four alternative charges were withdrawn by the Prosecution. At the close of the Prosecution's case no case submissions were made in respect to Bouloy and Swan. The no case submission in respect of Bouloy was upheld. However, the ruling by the Magistrate was that Swan and Hertular had cases to answer. The learned Magistrate finding was that …… "the prosecution's evidence against ... Bouloy was not straight forward" and that "indeed there were inconsistencies and to some extent, deliberate suppression of evidence"... That ... "the state of the Prosecution's evidence was so conflicting and untrustworthy that no reasonable tribunal could safely convict on it ……"

On the 26th August, 1991, the case for Defence was presented. The allegation is that these two Responderits were in possession of 2.2 kilos of cocaine on the 13th December, 1990, at Jane's Hotel, Barrack Road, Belize City. From the Learned Magistrate's reasons for Decision the facts are that on the 13th December, 1990, Corporal 489 Edward Broaster, Corporal 637 David Henderson and P.C. Caliz had followed a male person who turned out to be one Ray Brown, to Jane's Hotel. After the male person came out of the hotel, P.C. Caliz and Cpl Henderson followed him. Cpl Broaster checked "the book of the hotel" and found out something, as a result he booked room No. 11, which was beside room No. 12. At about 6:15 p.m. Cpl Henderson spoke to Cpl Broaster by police radio. As a result Cpl Broaster went to Golden Dragon Hotel where he met Cpl Henderson and P.C Caliz. From there he saw the said Ray Brown standing across the street on Pinks Alley. About 5 minutes later; Nigel Bouloy the second Defendant, drove up in a certain motor vehicle. Bouloy met and spoke with Ray Brown for about a minute then drove off towards Queen Street. Ray Brown proceeded in that same direction. Cpl Broaster, CpI Henderson and P.C. Caliz then went to Eastern Division Police Station where they met with P.C. 413 Linden Flowers and P.C. Richards. A briefing among them was conducted by Cpl Broaster. While Cpl Henderson and P.C. Caliz went to take up waiting positions, P.C. Richards and P.C. Flowers went and occupied room No. 11 at Jane's Hotel. Cpl. Broaster took up a position on Barrack Road from where he could observe Jane's Hotel. Whilst at that lookout point, Cpl Broaster saw Ray Brown come from out Jane's Hotel and stand on the sidewalk in front of the hotel. About 5 minutes after seeing Ray Brown come out of the hotel, he saw Bouloy and Hertular walking from the direction of Queen Street and meet with Brown. About five minutes later, Bouloy and Hertular left in the direction of Craig Street. Brown then went back into the hotel.

About five minutes later Brown came back out of the hotel and sat on the hotel gate on the left hand side. Bouloy and Hertular later returned in a blue and white pick-up truck licence plate No. Bz-C-11666 and alighted, Bouloy from out the passenger's side and Hertular out the driver's side. They went to Brown who got off the fence. They appeared to talk to one another. About five minutes later Bouloy and Hertular drove away in the pick-up truck to Craig Street direction. Brown went into the hotel. The pick-up truck returned and was parked in front of the hotel. Boulay, who was riding in the pan, alighted and went into the hotel. About two minutes after Bouloy and Brown came out the hotel together and they got into the pan of the pick-up which was driven off again in the direction of Craig Street. Later on the pick-up truck returned and was parked again in front of the hotel. Boulay and Brown alighted from the pan. Brown went into the hotel while Bouloy sat on the gate of the hotel. This was about 8:50 p.m. At about 9:00 p.m. the pick-up again returned. The Magistrate drew the inference that it must have left after Boulay and Brown had alighted. At this time Swan came out the passenger door while Hertular came out the driver's door. Bouloy went into the hotel and returned with Brown. The four of them gathered together and appeared to be talking in front of the hotel near to the gate on the sidewalk. About five minutes later Brown went into the hotel.

After Brown went into the hotel, Swan opened the passenger door of the pick-up truck and took out a grey-looking plastic bag and handed it to Hertular. Hertular held the grey-looking plastic bag and together with Bouloy they went into the hotel. Cpl Broaster was observing all this time and he now radioed his observation to Cpl Henderson and P.C. Caliz.

P.C. Flowers and P.C. Richards were in room No. 11. At about 9:10 p.m. P.C. Flowers heard footsteps going into room No. 12. Flowers noticed that the door to room 12 was ajar. There was light in the room. P.C. Flowers told P.C. Richards to follow him into room No. 12. Flowers was about to push the door to room No. 12 when he heard someone coming behind him. He looked and saw Bouloy, who he knew by sight but not by name. Bouloy was going towards room No.12 and P.C. Richards was told to hold him. P.C. Richards moved towards Bouloy while P.C. Flowers entered room No. 12. In that room P.C. Flowers saw Hertular holding a grey plastic bag. Brown, who was also in room No. 12, dashed towards P.C. Flowers, who had his police revolver in his right hand. Brown was held by P.C. Flowers with his free left hand but Brown managed to pull free and ran through the door into the corridor. Turning his attention to Hertular, P.C. Flowers walked towards him when Hertular placed the grey plastic bag on a table in room No. 12. P.C. Flowers held onto Hertular. Cpl Broaster who then entered the room removed the grey plastic bag from the table and opened it in the presence of Hertular and P.C. Flowers. Inside the bag was a cream coloured parcel wrapped in grey tape. Some of the contents were later analyzed and found to be cocaine.

When Bouloy and Hertular, who had already received the grey looking plastic bag from Swan, went into the hotel, Cpl Broaster had already informed Cpl Henderson and P.C. Flowers of what had occurred. Cpl. Henderson along with P.C. Caliz had then proceeded in the police vehicle to the hotel where upon their arrival they saw Swan leaning against pick-up truck BZ-C-11666. Cpl Henderson, acting upon the information he had received from CpI Broaster, there arrested Swan. When Cpl Broaster was about to open the hotel's door for him to enter the hall, Bouloy and Brown came running through that door. Cpl Broaster ran upstairs to room No. 12 where he found P.C. Flowers and Hertular. Cpl Henderson made chase after Bouloy and Brown but without success. Checks were made at Bouloy's home but he was not at home. On the 14th December, 1990, at about 9:30 a.m. Bouloy, accompanied by an attorney, went to the Police Station. Bouloy was shown the grey plastic bag recovered from room No. 12 of Jane's Hotel. Swan, Bouloy and Hertular were then jointly charged with the five offences under the Misuse of Drugs Act; Act 22 of 1990. Hertular had on his person $220.00 Belize Currency, while Swan had the equivalent of $5,934.60. These sums were deposited as exhibits.

Swan's sworn evidence was to the effect that he was in pick-up truck BZ-C-11666 on the night in question, that he was in the passenger side and that Hertular was the driver. His main defence was a denial of his having handed any drugs to Hertular.

Hertular, for his part, in a dock statement admitted to being in room No. 12 of Jane's Hotel when P.C. Flowers entered that room. He said that P.C. Flowers found the parcel containing cocaine on a table in room No. 12 but contends that he didn't know that that parcel was there until P.C. Flowers pointed out the bag to him. He denied receiving any bag from Swan. His statement is that he and Ray Brown had arrangements with "the girls" from Jane's Hotel and that's the reason for him being in room No.12 at that time.

Lauralee McKenzie was called as a witness by Hertular to support his statement. The learned Magistrate dismissed her evidence based on her demeanor which led him to the conclusion that she was not a witness of truth. Her evidence was to the effect that Cpl Broaster had booked the two rooms, Nos. 11 and 12. This was not believed by the Magistrate.

Based upon the whole of the evidence the learned Magistrate came to the conclusion that Ray Brown was an agent provocateur. In coming to this conclusion he held that "there was evidence adduced by the prosecution from which I inferred that Brown was so engaged..." I agree that there is evidence upon which the learned Magistrate could arrive at that conclusion. He refers to such evidence at page 13 of his reasons for decision. This Court as an Appellate Court declines to reconsider the finding of "agent provocateur" as a fact. The learned Magistrate made a specific finding of agent provocateur, the result of his assessment of the credibility of the witnesses and the drawing of inferences. There is no palpable and overriding error on his findings of fact and the application of the principles of law governing the assessment of the evidence involved. This Court would not, therefore, interfere with these findings. He also held that upon the whole of the evidence the prosecution had discharged its burden of proof to the requisite standard, and convicted both Swan and Hertular of trafficking one kilogramme of cocaine as charged.

It is upon those findings, the principles as to an agents provocateur, and the effects upon a sentence and the statutory provisions of the Act, that the learned Magistrate imposed the sentences which he did and against which this Appeal was filed. He cites the relevant section 17 (1) of the Misuse of Drugs Act, which reads that:

"A person who commits the offence of drug trafficking or of being in possession of a controlled drug for the purpose of drug trafficking is liable-

(a) on summary conviction -

(i) to a fine which shall not be less that twenty five thousand dollars but which may extend to one hundred thousand dollars or, where there is evidence of the street value of the controlled drug, of three times the street value of the controlled drug, whichever is the greater; or

(ii) to imprisonment for a term which shall not be less than five years but which may extend to ten years; or

(iii) to both such fine and such imprisonment."

He states that the quantum of the cocaine was one kilogramme. The prosecution did not give any evidence of the street value of the cocaine. Both defendants have no previous conviction ….." He cites the case of R. v SANG [1979] 2 ALL E.R. 1222 as an authority for imposing the sentence he imposed. In particular he placed reliance upon the persuasive wards of Lord Diplock at p. 1227 where he said:-

"The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration of sentence; but under the English system of Criminal Justice it does not give rise to any discretion on the part of the judge himself to acquit the accused or to direct the jury to do so notwithstanding that he is guilty of the offence..."

and of Lord Scarman at page 1243 where he said:-

"The true relevance of official entrapment into the commission of crime is on the question of sentence when its mitigating value is high."

At page 16 the Learned Magistrate goes on to give reasons for the sentences he imposed. He writes that "…. In sentencing an offfender who has been entrapped, the Court should consider whether the offender would or would not have committed such crime. In that regard the prosecution should make full disclosure to the Court..." He also relies on the words of Lord Parker, C.J. in R. v BIRTLES [1969] 2 ALL E.R. 1131 where he said:-

"The Court of course recognizes that, disagreeable as it may seem to some people the police must be able in certain cases to make use of informers, and further - and this is really the corollary - that within certain limits such informers should be protected. At the same time, unless the use made of informers is kept within strict limits, grave injustices may result. In the first place, it is important that the Court of Trial should not be misled." At page 16 of his reasons for decision, he states "... In this particular case the prosecution denied that Ray Brown was an agent provocateur there was pregnant evidence that Ray Brown was such. The prosecution should have led evidence to show how and why an agent provocateur was necessary to be employed to entrap the two defendants. The Court would have been in a position to conclude whether or not, despite of the entrapment, the defendants would have committed the offence. Since that evidence was absent, I could not say that the defendants, at any rate, would have committed the crime of trafficking cocaine. However, there is a possibility that the defendants were incited to commit the offence … which they otherwise might not have committed."

The use of the term "there is a possibility" shows that the Magistrate did not come to a conclusion on this point. On the evidence was it more probable than not- This is where the Magistrate's careful decision is incomplete. It leaves this decision open to the appellate court. He goes on to show through decided cases such as R. v CLEVELAND ARNOUGH [1973] 21 WIR 367 and R. v McCANN [1962] 56 Cr App Rep 359 the attitude of Courts to impose what amounts to minimum mandatory sentences and for these reasons himself imposed the minimum mandatory sentences on the two Respondents.

On the 28th August, 1991, the learned Magistrate found that the prosecution had proven its case an the charge of trafficking of 1 Kilogramme of cocaine contrary to section 7 (1); (2) and (4) read along with section 17 (1) of the Misuse of Drugs Act, Act No. 22 of 1990, and convicted the appellants James Swan and Robert Hertular accordingly.

The sentences imposed were a minimum fine of $25,000.00 plus $5.00 cost in respect of each appellant and a forfeiture of the sums of money found on their person and exhibited in default 5 years imprisonment; the minimum, also.

Upon the imposition of the minimum fines of $25,000.00 each the Prosecutor filed a notice of appeal. The grounds of Appeal are:-

1. The sentence passed an the Respondents was unduly lenient; and

2. The sentence passed by the Learned Magistrate was passed on a wrong principle in that he failed to take into account all the relevant considerations in imposing the sentence, particularly, the class and quantity of the drug involved and the prevalence of the Drug Offence.

Other grounds filed were that:-

(1) The decision of the Learned Magistrate that Ray Brown was an agent provocateur was unreasonable and could not be supported having regard to the evidence.

(2) The decision of the Learned Magistrate to treat Ray Brown as an Agent provocateur was such that the Inferior Court viewing these circumstances reasonably would not properly have so decided.

(3) The conclusion of the Learned Magistrate that the Respondents would not have committed the offence but for the activity of the agent provocateur was unreasonable and could not be supported having regard to the evidence.

At the hearing an objection in limine was taken to grounds No. s 2; 3; and 4. These did not meet the provisions of S. 110 (e) of Chapter 82. That section is that the sentence is unduly severe not lenient. That the other grounds are appeals against conviction. Counsel for the Appellant accepted the objection, therefore, the Court rules that grounds No.s, 1 and 5 remain; ground No. 5 being subsumed into ground No. 1.

Mr. Gamalath, the Crown Counsel, arguing the Appellant's case, submitted that the Magistrate in his reasons for decision stated that he wished to impose the minimum sentence prescribed by the Act for the reason that this was an entrapment laid by the investigating officers. This, he submits, is based on pure speculation, and that there is no evidence that there was an entrapment or agent provocateur. He submits further that by S.7 (4) it is stipulated what is deemed Drug Trafficking - the possession of 1 gramme of cocaine. The whole intention of the Legislature is to introduce a social deterrence, to impose a penalty to discourage this type of offence. It is considered a grave offence. We must bearing in mind Lord Denning's words p 6 - 7 of Smith & Hogan - "The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else ... The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the Community at large ….," he argues.

He asked the Court to consider a situation where a person is found in possession of 2 grammes of cocaine - submitting that then the minimum sentence would be appropriate as against another situation where a person is found in possession of 1,000 grammes. Would the statutory minimum sentence be appropriate then also- he asks. This could not be the idea of the Legislature, he submits, as there must be a distinction between possession of a small quantity as against a large quantity. He cites Moe C.J.'s Decision in P.C. THOMPSON v ALBERTO BARTELY, Inferior Court Appeal No. 4 of 1980, as an illustration of the guidelines in cases of this nature. Guidelines which the Learned Magistrate has fallen far short of observing on the requirements stipulated by the law and the demand from society, he submits.

For his part Mr. Barrow relies on Archbold 1992 Edn. Vol. 1 para 7 - 147 p 1220 and the principles there enunciated for an Appellate Court to observe before interfering with a sentencing Judge's discretion. R. v De HAVELLAND [19831 CA 5 Cr App Rep 109 is cited in support. The particular circumstances of the case must be considered and may lead to departure from these rules, he argues.

In the circumstances of this case when the question of sentence is approached one must consider the appropriateness of a severe sentence as against a lenient sentence. There must be consistency, bearing in mind the theories of Retribution, Deterrence and Reformation that are part and parcel of a senctence. The gravity of the offence is clear fom the maximum and minimum sentences provided for in the punitive section cited by the Learned Magistrate, albeit that the minimum sentence may be reflection also of no confidence in the Judiciary. This minimum affects Judicial discretion. However, it does reflect the gravity of the offence. Was there a fine showing consistency in the quantum from which a reduction was made- Such practical matters as the personal attributes of the Respondents were taken into account, their youth and unblemished records. The learned Magistrate gave as the main reason for imposing the minimum sentence, notwithstanding the quantity of cocaine, the use by the investigators of an agent provocateur. While there is no evidence on the record of any persistent course of conduct in this field of activity by the two Respondents, their behaviour during the investigation is an aggravating circumstance to be considered together with their level of participation in the activities. While there was a finding of the use of an agent provocateur, the evidence shows the Respondents to be in possession and the agent provocateur no more than but informed assisting in the investigation rather than an inciter in that possession.

The Respondents were convicted for a crime under s.7 (4) where they were deemed to be in possession for the purpose of supplying for trafficking. It is a presumption which is rebuttable. If there is to be any meaningful mitigation, the onus is, therefore, on the Respondents to show that the possession was not for trafficking but for some lawful or other purpose which would not attract a penalty under s. 17 (1); and also that it was the agent provocateur who instigated their being in possession or incited them to be in possession of the quantity of cocaine. Indeed the deeming provision creates the presumption and as I said earlier while it may have been possible to use the Magistrate's expression to draw the inference that Brown may have incited the possession at the Hotel with a view to supplying for trafficking in the cocaine at the hotel rendezvous it would not be reasonable to infer that he incited or for that matter instigated the act of possessing the cocaine in the first instance. His role could only reasonably be seen as affording the investigators the opportunity of succeeding in apprehending the two Respondents while in the act of possession; i.e. to confirm the fact of possession which the investigators suspected but could not detect without an attempt at supplying for trafficking transaction being arranged which purported arrangement Brown clearly from the evidence, played an active role in; for which role and as informant limited mitigation could be considered. But there is more which must first be considered. The sentence depend on the degree of involvement, the amount of drug in possession for trafficking and the value of the drug being handled. The circumstances of of the individual offender is of great importance. We take note of the upward spiral of cocaine drug abuse. Those supplying must be made to reconsider their activities. Each case depends on its own facts. The learned Magistrate took guidance from the case of R. v CLEVELAND ARNOUGH [1973] 21 WIR 367 as to the imposition of the minimum sentence. But the decision of the Court is to be concerned with the facts and circumstances of this particular case before it and so be directed to arrive at an appropriate sentence in this case.

The evidence justifies only one view of the facts but the Magistrate passed sentence on a basis which is mere supposition when he said that there was a possibility that Brown may have incited the offence. It's clear that he was an informer - not an inciter as to possession. The proper factual basis for sentence was not entrapment but informer only.

I have considered the principles enunciated in R. v De HAVELLAND [1983] C A 5 Cr App R 109 on the exercise of discretion by the sentencing magistrate - and the guide to uniformity on sentence with the departure from the rules when particular circumstances of the case may lead to this and the effect of wrong principles as in R. v WADDINGTON [1983] 3 CR App R 56 and the uniformity of approach and not of sentence illustrated in R. v BIBI [1980] 1 WLR 1193. Is it that they wouldn't have had possession of the drug were it not for Brown's role- It seems to me on the evidence that he had no part in the possession but in the attempt to supply for trafficking offences under section 6 of Act 22 of 1990 . In so far as the offence under s. 7 (4) the agent provocateur could not have enticed the two Respondents to be in possession, in particular, in possessionof a quantity in excess of that which the law deems possession of to amount to trafficking. The fact of possession itself cannot be attributed to any act of the agent provocateur but it is the information to the police as to where the transaction of trafficking as envisaged by s.6 that the agent provocateur was active in. It is obvious that he was not party to the obtaining of the drugs at the source from which the drugs were secured. But the inference is that he was party to the attempts at supplying the drugs for trafficking. Did he in any way create the possession envisaged by s.7 (4)- He may have instigated the "set up" supplying transaction which caused the drugs to be brought to Jane's Hotel. He, therefore, assisted in the investigation as to possession simpliciter at the hotel but not possession but at the original source which even then was a crime through the fact of possession but which was yet undetected. There is nothing in the evidence upon a which speculation could properly be founded that these two Respondents would not have possessed the kilo of cocaine were it not for instigation or incitement on the part of Brown. In such a case then, the acts of Brown need not be a mitigating factor. As put in Archbold para 15 - 84 page 1293 43rd Edn. Vol. 1 "The possibility of the crime in which he is invited to take part having been "set up" by an informer is one of the known risks of his "profession" rings true to this case on the facts. The accepted evidence that Brown was met at Pinks Alley and following a discussion he proceeded to Jane's Hotel where only through surveillance and "stake out" was the evidence of possession gathered, supports such a finding that he was an agent provocateur but not on instigating possession but the exposure of the "possessed drug" in an attempted trafficking or other dealing, for the benefit of the investigators. This need not be a mitigating factor on the sentence in the circumstances,. at least not to the extent of the minimum penalty where 1 kilogramme or 1,000 grams is involved when possession of 1 gram attracts a minimum fine of $25,000.00 or 5 years imprisonment or both.

The Magistrate's reason for decision is clearly set out; deliberate, well thought out, recognizing the quantity and maximum and minimum fines the Respondents are liable to. It is pure speculation as to the inciting by Brown. The evidence does not support this. I look to the four classical principles, in particular deterrence and prevention and retribution which are relevant to drug trafficking - a scourge on our society.

It is desirable that a proper sentence is passed in the interest of fairness and consistency. The Learned Magistrate made a balanced and well-informed decision in arriving at the sentence. He, however, misdirected himself on the issue of his finding that Brown, agent provocateur, and how this finding should affect the sentence he imposed. The defence of Entrapment is not known to our law - See R. v MEALEY AND SHERIDAN [1975] 60 Cr App R 59 and pp 777 and 778 para 1411c Archbold 39th Edn. The Learned Magistrate misguided himself on this issue and putting too much emphasis on it. Police need the use of informants albeit that their use must be kept within strict limits. In R. v BIRTLES [1969] 53 Cr App R 469 the Lord Chief Justice at pp 472 - 473 makes the paint relevant to this case. There is no miscarriage of justice caused through Brown. In that case it was stated that:

"There is of course no harm in not revealing the (mere) fact that there is an informer, but it is quite another thing to conceal facts which go to the quality of the offence ... it is vitally important to ensure, so far as possible, that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have committed ….." From the evidence it was open to the Learned Magistrate to find that Brown took an active part in what was clearly a supplying for trafficking arrangement and may have been quite instrumental in this. Indeed his role at the hotel tends to confirm this. But the charges laid under the provision of Section 6 of the Misuse of Drugs Act were not pursued but withdrawn. Indeed it could be said that Brown instigate the purported attempt to supply for trafficking envisaged by Section 6. However, it is the Statutory Offence of 'Possession' under Section 7, Section 7(4) in particular, that deems the possession to be supply for drug trafficking because of the quantity involved. So that Brown's role in the Possession and supply for Trafficking under and by virtue of S.7 (4) could not be said to be instigating in any way. That is the fact of possession and a legal consequence of that fact. And a fact which, upon the evidence he played no role in instigating or inciting. The police could be said to have acted on information from Brown as to the offence of Possession already laid on. The attempts to supply for trafficking at Jane's Hotel could be said to have been laid on as proper steps to detect the crime of possession and to prevent the crime of actual supply for trafficking happening. With this position any reduction is sentence for the possession under S. 7 (4) should be no more than minimal. Of course, there is the converse position to consider. Would the Respondents have had possession of the drugs had not the apparent opportunity to supply for drug trafficking in them been created or incited or instigated by Brown- On the evidence it was open to the Magistrate to find either way but to find in the negative would require heavy speculation while finding in the affirmative should pose no difficulty. He made no specific finding only expressed a "possibility not more probable than not." They either alone or in conjunction with others had possession and were able to supply upon demand. That's a reasonable conclusion to arrive at. The apparent opportunity created to supply was not acted upon in pursing the charges under Section 6. the case of R. v McEVILLY [1974] Crim App R 239 decided by the English Court of Appeal is quite instructive in this regard in concluding that the drug was already possessed and Brown, upon being contacted, was to provide for the disposal thereof.

I think the decision of Moe C.J. in P.C. 235 FRANK THOMPSON v ALBERTO BARTLEY, Inferior court Appeal No. 4 of 1984, is very instructive notwithstanding the repeal and replacement of the Dangerous Drugs Act under which that charge was filed. What he said at page 2 of the judgment is still true and applicable under this Misuse of Drugs Act. He said:

"In determing sentence, the gravity of the offence itself is to be considered, the maximum penalty for the offence under review is a fine of $100,000.00 or imprisonment. The prevalence of the offence must be taken into account - the offence under review has increased at an alarming rate and magistrates in every judicial district are dealing with many of these cases…. It has to be borne in mind that the Court's duty encompasses not only punishing the offenders, but also deterring him and others from committing similar offences ... it was an exercise on a commercial scale."

In the circumstances and for the reasons given I would consider a reasonable penalty, on a scale between the maximum and the minimum fines provided in Section 17(1) of the Misuse of Drugs Act, having regard to the Prevalence of Drugs and its Debilitating effect upon our society, therefore, retribution for social menace must also be considered, and with a view to prevent or discourage others from supplying or engaging in trafficking in cocaine, but bearing in mind that the trafficking is proven only because of a statutory presumption and not on the act itself of trafficking, to be $40,000.00. The consideration for mitigation on the finding of agent provocateur, and for the reasons given, would result in a reduction of $5,000.00, resulting in fines of $35,000.00 each in default six years imprisonment. I, therefore, substitute these fines and set aside the fines $25,000.00 i/d 5 years imprisonment each, which was unduly lenient in the circumstances that was imposed by the Learned Magistrate. The forefeiture orders are confirmed.

Before disposing of this matter, I should make the observation that sentencing was done immediately upon the conclusion of the addresses on the 28th August, 1991. There was a plea in mitigation in respect of one of the Respondents. It is time that Magistrates give effect to the provisions of Section 29(1) of the Misuse of Drug Act. That section provides that:-

"Where a person …. has been convicted of a drug trafficking offence the Court before which the defendant is convicted shall, before passing sentence, determine whether he has benefitted from drug trafficking and if the court so determines, the court shall upon the application of the prosecution -

(a) determine in accordance with section 33 the value of the defendant's proceeds of drug trafficking;

and

(b) in addition to any other punishments order the forefeiture of such amount as represents the value of the defendant's proceeds of drug trafficking as so determined."

From the records this exercise was not carried out. It is mandatory. The presiding magistrate is required to determine whether the convicted person has benefitted from drug trafficking before passing sentence. It is after the Court has so determined that the prosecution is required to apply to have the value of defendant's proceeds of drug trafficking determined in accordance with Section 33 of the Act. Upon a dertermination of a value of any such proceeds, a forefeiture order is to be made in terms of S. 29 (1) (b). But it is important that the section be complied with and for the Court to decide what the determination was before sentence is imposed. In the case of R. v Redbource (1992) WRL 1182, the Court of Appeal, UK, had to deal with this very issue in June 1992.

The UK provisions found in "The Drug Trafficking Offences Act 1986" which provides that:

(1) Subject to subsection (7) below, where a person appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not been previously sentenced (emphasis mine) or otherwise dealt with in respect of his conviction for the offence or, as the case may be any of the off ences concerned) , the court shall act as follows.

(2) The court shall first determine whether he has profitted from drug trafficking."

To that extent this court may be guided in the approach taken by the English Court. The section goes on as to the making of assumptions by the presiding Judge or in our case, Magistrate. This forms part of our statute. We may be persuaded by the approach taken on the determination which is on all fours to our statutory provision found in section (29) and recited earlier. It is clear from the judgement of Lord Lane C.J. in R. v DICKENS [1990] 2 QH 102, which was upheld by the UK Court of Appeal, that the standard of proof which applies in this determination was the criminal standard. At page 106 Lord Lane C.J. plainly stated:-

"In our judgement the context of the Act and the nature of the penalties which are likely to be imposed, make it clear that the standard of proof required is the criminal standard, namely proof so that the judge feels sure of proof beyond reasonable doubt." In R. v Enwezar [1991] 12 CR App. R (s) 661 before another division of the Court the judge was satisfied on the balance of the probabilities "because the Drug Trafficking Offence Act 1986 is not penal, it is dealing with redress, reparation or unjust enrichment, not penalties," p. 1185. This confiscation order was quashed in part because the court followed what Lord, Lane C.J. had said in R. v DICKEN (Supra). At p. 1186 of the judgement the court held that:

"It is, we suppose, conceivable that Parliament intended the judge to make his own inquiries and (through court channel or otherwise) to ask bankers and building societies if the defendant had any money with them, and to examine him (if he were willing or compelled to be examined) as to how that came about. But that process would be so foreign that we would expect Parliament to say so expressly if it were intended. Without any such indication, it seems to us that the process must remain adversial in character. We regard the appropriate test as to where the burden of proof lies as provided by the question, 'Who will lose if no evidence is called-' It must, in English procedure, be the prosecution when the assumption provided by the Act of 1986 lead to a different result."

This seems true of the position in our jurisdiction given the statutory provision which is on all fours with ours to the extent of the determination provisions recited earlier.

So the Magistrate in a case of this nature ought properly to have held an inquiry to make a determination as to whether or not the respondents had benefitted from drug trafficking. Upon such determination being made in the affirmative it would have been incumbent upon the prosecution to make an application for the court to determine, in accordance with section 33 (and its supplement section 34) of the Misuse of Drugs Act, the value of the respondents, or any one of their, proceeds of drug trafficking.

The provision for the assumption contained in the English Act are also very much on all fours with those contained in our sections. Sections 30 and 31, so that guidance is found in the said judgement in R v Redbourne (supra) as to how a judge or a Magistrate should decide whether to make the assumption. The Magistrate or judge is not obliged to make the assumption in every case. The provision is that:

31 (1) The court may have for the purpose of

(a) determining whether the defendant had benefitted from drug trafficking and,

(b) if he has, of assessing the value of the proceeds of drug trafficking for the purpose of forfeiture order under this part.

Make assumption set out in subsection (2) except to the extent that any of the assumption are shown to be incorrect in the defendant's case."

At p. 1187 of the Court's judgement it is stated " . . . we cannot believe that a judge is entitled to make the assumption for no reason or on capricious grounds.. . it cannot have been the intention of Parliament that the judge must be satisfied on the evidence before him that the defendant has benefitted from the drug trafficking, before he makes the assumption at all. Still less, that he must be satisfied as to the value of the proceeds of drug trafficking. If that were the law there would be no point in elaborate procedure for assumptions. Furthermore, section 2 (2) provides that the assumptions may be made for the purpose of determining whether the defendant has benefitted, and if so the value of his proceeds. In our view, the judge must have some reason to suspect that the defendant had benefitted from drug trafficking before he makes the assumption or any of them ... ... a Judge's decision whether or not to make the assumption is an interim one which falls to be made on his way to reaching a final decision, such final decision involving a full consideration of the defendant's case and whether (once fully deployed) it is sufficient to negate any assumption made. In an appropriate case, the judge is entitled to make the assumption at the start of the enquiry, for example if he has reason to do so from the circumstances of the offence for which the defendant has been convicted or the judge may do so at any later stage, up to the time when he makes his final decision ….... it is true that ... the assumption once made has a drastic effect - some have said Draconian. However, that was plainly the intention of Parliament ...

"For the avoidance of doubt, we add that no question of the standard of proof arises when the judge is deciding whether the assumption should be made ….."

Finally, the court's findings an the standard of proof required to rebut the judge's assumptions is most instructive. At p 1189 it was held that:-

"….the judge considered to what extent the defendant had by the civil standard rebutted the assumption that such property had been received by the defendant as a payment or reward in connection with drug trafficking..."

The Redbourne's and DICKEN's cases are very instructive and gives much insight as to how the English courts have grappled with the troublesome cases taken before them under their 1986 Drug Trafficking offences Act from which the provision of our sections 29-34 were clearly taken. This judgement, I hope, has given some guidance of a limited nature as to how these cases on "Determination" and assumptions following upon conviction are to be approached.

The Appeal is allowed in part. I make no order for costs.

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