THE REPUBLIC OF TRINIDAD ABD TOBAGO IN THE HIGH COURT …

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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 .

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SENTENCE

52. Mr. Coltes, I hereby sentence you to a term of imprisonment of 17 years minus the time

that you spent in custody awaiting trial/completion of this matter. The sentence

would commence from today’s date.

___________________

Maria T. M. Wilson

Judge

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