Post on 06-Apr-2022
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THE REPUBLIC OF TRINIDAD ABD TOBAGO
IN THE HIGH COURT OF JUSTICE
CRIM NO. 115/2012
THE STATE
VS
PETER COLTES
FOR
POSSESSION OF A DANGEROUS DRUG FOR
THE PURPOSE OF TRAFFICKING
SENTENCING
BEFORE THE HONOURABLE MADAME JUSTICE MARIA WILSON
Date Delivered: 15th July 2019
APPEARANCES:
Ms. Balkaran and Ms. Heller for the State
Mr. Morgan for Mr. Coltes
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INTRODUCTION
1. The Prisoner, Mr. Peter Coltes, was before this Court on a charge of possession of a
dangerous drug, namely, cannabis sativa, commonly known as marijuana, for the purpose
of trafficking. This offence was alleged to have occurred on the 20th July 2006 in
Chaguaramas. This charge was brought against him, pursuant to Section 5 (9) of the
Dangerous Drugs Act, Chapter 11:25.
2. On the 4th June, 2019, a jury of nine (9) persons found Mr. Coltes guilty of this offence.
3. When the JSO read the allocutus to the prisoner on that day, that is, asking the prisoner if
there was any reason why a sentence of the Court should not now be imposed on him, his
attorney, Mr. Morgan, requested that a Probation Officer’s Report be prepared and asked
that his plea in mitigation be deferred until he was in possession of that Report.
4. The Court acceded to Defence Attorney’s request for a Probation Officer’s report and the
Probation department filed their report into Court on the 3rd July 2019. The Court made
this Report available to the attorneys for the State and the Defence.
5. Prior to the receipt of the Probation Officer’s report, the Court ordered both sides to file
their submissions on sentencing. On 14th June 2019 the State filed its submissions and on
the 18th June 2019 Defence attorney filed submissions on behalf of Mr. Coltes.
6. On the 9th July 2019, the Court heard oral submissions from Defence Attorney on the
Probation Officer’s Report and received testimonials received on behalf of the prisoner.
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The State was then given an opportunity to respond. The State conveyed to the Court that
its submissions filed on 14th June 2019, thoroughly outlined its position and also
anticipated the Probation Report and therefore did not need to make further submissions.
7. I will now give my ruling on sentence.
LAW AND FACTS
8. The State in this case had to prove that the prisoner was in joint possession of marijuana
and further that the Prisoner was in possession of marijuana for the purpose of
trafficking.
9. In law, a person can either be in actual possession or in what is referred to as
constructive possession of the particular drug in issue. The State presented its case on a
two-pronged basis. The State submitted that the prisoner was in actual possession of the
dangerous drug marijuana, based on his oral statement to the police and alternatively, he
was in constructive possession because he was in control of a pirogue on which there
were two bags together containing 40 packets of marijuana.
10. The State also had to prove that the prisoner was in possession for the purpose of
trafficking. To prove such the State relied on the fact that (i) the quantity of marijuana
was more than 1 kg, (ii) the manner in which the marijuana was packaged and (iii) the
fact that the prisoner and another were transporting the marijuana in the pirogue in which
the Trinidad and Tobago Coast Guard (TTCG) first saw the marijuana.
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11. The State’s case was that on Saturday 29th July 2006, Mr. Villaroel then Petty Officer at
TTCG, was on duty when he received a phone call from the Coast Guard centre about a
vessel coming from Venezuela to Trinidad. Upon receiving that information, Petty
Officer Villaroel, together with three other Coast Guard officers, officer Francois, officer
Soverall and Mechanic Vincent, all dressed in Coast Guard uniform, boarded the Coast
Guard vessel – the ‘Midnight Express 013’ and left the Coast Guard compound around
6.23 p.m. from Staubles Bay. While Officer Villaroel was reversing the said Coast Guard
vessel, he observed a vessel coming from west to east and that vessel stopped abruptly
about 50 metres from where the Coast Guard vessel was positioned. That vessel was a
blue pirogue about 20-30 feet long, with two occupants, a Rasta – who controlled the
vessel, and another person, whom Officer Villaroel described as fair-skinned, was
standing. Petty Officer Villaroel identified the prisoner as the Rasta whom he saw
controlling the vessel.
12. Villaroel signalled and shouted to the prisoner and the other man to come but the pirogue
sped off. Villaroel became suspicious and pursued the pirogue.
13. Whilst in pursuit officers Villaroel and Soverall observed, the other man throwing two
black garbage bags into the water. The Coast Guard intercepted the pirogue in the
channel between Centipede Island and Trinidad. The pirogue stopped about 50 metres
from where Villaroel saw the other man throwing the bags aboard.
14. Upon intercepting the pirogue Villaroel observed that it bore registration number TLJ
2219 and the name “Aaliyah”.
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15. Villaroel asked the prisoner and the other man to collect the two bags that had been
thrown overboard and he followed them with the Coast Guard vessel.
16. After the prisoner and the other man retrieved the two bags, Villaroel asked the prisoner
and the other man about the contents of the two black garbage bags and the prisoner
responded saying “the boss, it is marijuana.”
17. Villaroel then instructed the prisoner and the other man to come aboard the Coast Guard
vessel with the two black garbage bags and they did. Villaroel also instructed Able
Seaman Francois to go aboard the Aaliyah.
18. The Coast Guard vessel and the Aaliyah went to the Coast Guard Headquarters at
Staubles Bay. Upon arriving at Staubles Bay, Villaroel took the prisoner, the other person
and the two garbage bags off the Coast Guard vessel. The prisoner and the other person
were put on a jetty made of concrete slabs.
19. Villaroel did a search and reported to his seniors and then opened the two black garbage
bags in the presence of the prisoner and the other person. He observed that there were
green packets in the garbage bags. When he further examined it, he said that he observed
there was plant-like marijuana in the packets. He reported to his seniors and around 7:10
p.m. He then telephoned PC Julien, who was attached to the Carenage Police Station and
went back out to sea on another exercise.
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20. Around 9:30 p.m. Villaroel met PC Julien and they had a conversation and then walked
across to the jetty where the prisoner and the other person were still seated. Villaroel told
PC Julien how he came into contact with the two black garbage bags which contained
green packets and how he came into contact with the prisoner and the other man.
21. PC Julien opened the black garbage bag and made an incision on each of the green
packets and told Villaroel something. PC Julien identified himself as a police officer to
the prisoner and the other man. PC Julien asked the prisoner and the other man their
names. The prisoner gave his name as Peter Coltes of Carenage. PC Julien then asked the
prisoner and the other man if they heard what Villaroel told him. The prisoner and the
other man said “yes”. PC Julien then cautioned the prisoner and the other man. After
being cautioned the prisoner replied “boss that is mine when I see the Coast Guard I get
frighten and throw it over board”.
22. PC Julien and Villaroel then opened both bags and took out each packet and weighed
them. There were a total of 40 packets. One bag contained 17 packets and the other 23
packets. PC Julien subsequently submitted the two garbage bags containing a total of 40
packets to the Forensic Science Centre for analysis, and sometime later obtained a
certificate of analysis in relation to the contents of the 40 packets.
23. Expert Analyst, Louis Garraway, confirmed that the plant-like material in the packets
contained fruits, bracts, fragments of leaves and stem of the plant Cannabis sativa L.-
Marijuana and found the total weight of the packets to be 39.6 kg and the weight of
cannabis to be 37.6 kg.
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24. It was therefore open to the jury to find that the prisoner was in actual possession of
marijuana, because of the oral utterances that he made firstly to Villaroel - “the boss, it is
marijuana” and then to PC Julien “boss that is mine when I see the Coast Guard I get
frighten and throw it over board”. Alternatively, it was open to the jury to find that he
was in constructive possession of the marijuana because he was the captain of the pirogue
the “Aaliyah”, on which there were the two garbage bags containing the 40 packages of
marijuana.
25. Additionally, in relation to the prisoner being in possession of trafficking, it was open to
the jury to consider that the Expert Analyst’s evidence that the weight of the marijuana
was 37.6 kg and section 5(9) (e) of the Dangerous Drug Act provides that:
“A person other than the person referred to in subsection (2), found in
possession of more than 1 kilogram of cannabis or cannabis resin is deemed to
have the dangerous drug for the purpose of trafficking, unless the contrary is
proved, the burden of proof being on the Accused.”
26. Further, it was open to the jury to consider the manner in which the marijuana was
packaged and the evidence that the two bags containing the packets were being
transported aboard the “Aaliyah”. Amongst other things, section (3) of the Dangerous
Drug Act defines “drug traffic”, “drug trafficking” or “trafficking” as including the
“transportation, delivery by any person of a dangerous drug …”
27. In considering the appropriate sentence to impose on the prisoner, I first considered, the
sentence stipulated by parliament.
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28. Section 5(5) of the Dangerous Drugs Act, Chap 11:25 provides as follows:
“Subject to subsection (7), a person who commits the offence of trafficking in a
dangerous drug or of being in possession of a dangerous drug for the purpose of
trafficking is liable upon conviction on indictment to a fine of one hundred
thousand dollars or, where there is evidence of the street value of the dangerous
drug, three times the street value of the dangerous drug, whichever is greater, and
to imprisonment for a term of twenty-five years to life.
29. While on a literal interpretation section 5 (5) appears to create a mandatory minimum, the
Court of Appeal in Barry Francis and Roger Hinds, Crim. App. Nos. 5 & 6 of 2010
held that the mandatory minimum imposed by the conjoint effect of Sections 5(5) and 61
of the Act was unconstitutional. In passing sentence the court said:
“The effect of our decision is that the sentence for the offence of possession of a
dangerous drug for the purpose of trafficking may vary from a maximum sentence
of life imprisonment to such minimum sentence as the court sees fit, and in
determining the appropriate sentence in any case the court must have regard to
all of the factors set out in Smith, many of which are encompassed and repeated
in Mano Benjamin. In addition, the court must have regard to the significant
factor of Parliament’s clear intention.”
30. This simply means that this Court ought not to treat the section of 25 years as the
minimum sentence that it must impose. Instead, this Court must look at all the facts of
this case and then determine the appropriate sentence to impose.
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31. The Court also took into consideration the sentencing methodology suggested by our
Court of Appeal in the case of Lauren Aguillera & Ors v The State Cr. App Nos 5-8
of 2015.
32. In Aguillera, the Court suggested that I should first calculate the starting point, which
takes into consideration the aggravating and mitigating factors with respect to the
offence. Secondly, after making this calculation, I should then look at the aggravating
and mitigating factors relative to the offender and then decide whether or not there should
be an upward or downward adjustment of the starting point. Thirdly, a discount should
be given for a guilty plea and finally, credit for any time spent in pre-trial custody.
33. Following the methodology suggested in Aguillera, The Court will now look at the
aggravating and mitigating factors in relation to the offence.
Aggravating Factors of the offence
34. The Court considered in this case that the aggravating factors in relation to the offence
were as follows:
(i) The prevalence and seriousness of the offence;
(i) The fact that the offence was possession for the purpose of trafficking and
not simply possession of marijuana;
(ii) The clear legislative intent of Parliament as reflected by Section 5(5) of
the Act;
(iii) The quantity of drugs involved is significant: 37.67 kg;
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(iv) The fact that the dangerous drugs were found on a boat suggest that the
prisoner and the other person were in the process of transporting the
marijuana;
(v) The fact that the prisoner who was the pilot of the pirogue sped off when
Officer Villaroel signalled him to stop;
(vi) The fact that he was present with another person, who threw the two bags
into the sea, after the prisoner sped off.
Mitigating factors of the offence
35. The Court found that there were no mitigating factors in relation to this offence.
Starting point
36. In deciding the starting point for this offence, the Court also took into consideration other
decided cases.
37. In the case of Barry Francis and Roger Hinds (supra), the amount of marijuana was
1.16 kilograms and the Court of Appeal substituted a sentence of 15 years and 12 years
for the Appellants respectively.
38. In Samuel Ramesar v The State Cr App No 8 of 2014 which was decided after Barry
Francis and Roger Hinds (supra), the trial Judge sentenced the Appellant to 16 years
imprisonment with hard labour, less the number of days spent on Remand. This sentence
was affirmed by the Court of Appeal. The Appellant in that case was in possession of 4
kilograms of marijuana.
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39. In the case of Dennis Sandy v The State Cr App S0001 of 2015, four straw bags
containing marijuana were found in the bedroom of a house; the weight of the marijuana
was 61.44 kilograms. The trial Judge had sentenced the Appellant to 17 years, 103 days
imprisonment, minus the time he spent awaiting trial. The Court of Appeal affirmed the
sentence of the trial Judge.
40. In Jerome Jobe Cr. App. No. 11 of 2011 the Appellant received a sentence of 20 years.
A deduction was allowed taking into account the time he had spent in custody awaiting
trial. The quantity of marijuana seized was 45.75kg. The appellant had a previous
conviction for possession simpliciter.
41. It is clear that each case has to be decided on its own peculiar facts.
42. Having regard to the facts of this offence, the Court is of the view that an appropriate
starting point is a sentence of 20 years imprisonment.
43. The Court then considered the aggravating and mitigating factors in relation to the
offender.
Aggravating factors in relation to the offender
44. The Court considered in this case that the aggravating factor in relation to the offender
were as follows:
(i) The prisoner has a previous offence for possession of marijuana;
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(ii) The fact that the prisoner was of a mature age 48 years old at the time of the
commission of this offence and fully responsible for his actions.
Mitigating factor in relation to this offender
45. The Court considered in this case that the mitigating factor in relation to the offender
were as follows:
(i) The prisoner has not committed another offence since 2006 (some 13 years) while
awaiting the trial of this matter;
(ii) The prisoner is now 61 years of age;
(iii)The testimonials presented to the court;
(iv) The Appellant has a good prospect of being reintegrated into society;
46. In deciding the appropriate sentence the Court considered the five principle objects of
sentencing, as stated in the case of Benjamin v R 7 WIR 459 – and they are:
i. Retributive, this is the same as the punitive;
ii. The deterrent vis-a-vis potential offenders;
iii. The deterrent vis-a-vis the particular offender being sentenced;
iv. The preventative, which aims at preventing the particular offender from again
offending by incarcerating him for a long period;
v. The rehabilitative, which contemplates the rehabilitation of the particular
offender so that he might resume his place as a law-abiding member of
society.
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47. The Court concluded that the appropriate aims of sentencing applicable in this case are
the punitive aim and the deterrence vis a vis potential offenders. The Court is of the view
that the fact that the prisoner has not committed other offences whilst awaiting trial goes
a long way to show that the Court does not need to deter him by its sentence nor is there
much need for him to be rehabilitated.
48. Taking the aggravating and mitigating factors of the offender into consideration, the
Court is of the view that the starting point of this offence should be reduced to a sentence
of 17 years imprisonment.
49. The Court is then required to deduct from the 17 years imprisonment, the length of time
the prisoner spent in jail awaiting sentence.
50. In Callachand & anor. v The State of Mauritius [2008] UKPC 49, the Privy Council
found that any time spent in custody prior to sentencing should be taken fully into
account by means of an arithmetical deduction when assessing the length of the sentence
to be served from the date of sentencing.
51. By report dated 17th June 2019 the Commissioner of Prisons informed the State that as of
18th June, 2019, Mr. Coltes had spent a total of seven hundred and seventy-eight days.
The Court therefore orders that the total days spent in remand before the date of
sentencing be deducted .