William White v The Queen

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Michel JA
• Judgment Date: 25 October 2017
• Judgment citation (vLex): [2017] ECSC J1025-3
• Docket Number: MNIHCRAP2014/0001
• Date: 25 October 2017

Between:

William White

Appellant

and

The Queen

Respondent

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

MNIHCRAP2014/0001

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Appeal against conviction and sentence — Section 28 of the Drugs (Prevention of Misuse) Act — Possession of cannabis with intent to supply — Whether forfeiture of the appellant's money and motor vehicle was wrong in law — Whether the sentence imposed on the appellant was manifestly excessive

On 19^th January 2013, a contingent of police officers approached the appellant whilst he was seated in the driver's seat of a motor omnibus parked near his home at Flemmings. The officers informed the appellant that they desired to search his vehicle, to which he consented. However, before leaving the vehicle, the appellant took something out of it which he held in his left hand and put his left arm at his back. The police wrestled the item from him, which was a plastic bag containing 142 grams of cannabis. The police also found a large amount of money on the appellant's person consisting of different denominations and currencies. The appellant was arrested and taken to a police station. Thereafter, the police obtained a warrant to search the appellant's home. Upon executing the search in the appellant's presence, the police found two large plastic bags together containing 1.84 kilograms of cannabis, as well as a quantity of money in the house.

The appellant was indicted for the offences of possession of cannabis for the purpose of drug trafficking, possession with intent to supply and simple possession. On 16^th April 2014, the appellant was acquitted by a jury on the charge of possession of cannabis for the purpose of drug trafficking, but was found guilty of the charge of possession with intent to supply. As a result of this conviction, no verdict was rendered on the simple possession charge. The appellant was sentenced to 3 years' imprisonment and a fine of $15,000 to be paid within 2 years, in default of payment of which he would serve an additional year in prison. The motor omnibus belonging to the appellant and the sums of money found in his possession by the police at the time of his arrest and at his home during the search were ordered to be forfeited to the Government of Montserrat.

Being dissatisfied with the decision in the court below, the appellant appealed against his conviction and sentence on the grounds that: the indictment containing three counts is bad for duplicity in that each count alleges the commission of more than one offence; the conviction is unsafe and cannot be supported in law; the forfeiture of the appellant's taxi and money was wrong in law; and the sentence imposed on the appellant was manifestly excessive. However, during the course of his oral arguments, counsel for the appellant abandoned the duplicity and unfair conviction grounds.

Held: allowing the appeal in part; dismissing the appeal against conviction and affirming the conviction of the appellant for the offence of possession of cannabis with intent to supply; allowing the appeal against sentence to the extent that the sentence of one year imprisonment imposed in default of payment of a fine of $15,000.00 shall run concurrently with the three-year prison term; and quashing the forfeiture order, that:

• 1. It is an established principle of law that sentences will be deemed to run concurrently unless specified to run consecutively. There being no such specification in this case, the substantive and default sentences will run concurrently.

• 2. In order for an item to be forfeited by virtue of section 28 of the Drugs (Prevention of Misuse) Act, the court has to be satisfied that the item to be forfeited relates to the particular offence of which the offender has been convicted. In the present case, there is no evidence which relates the money and vehicle forfeited to the offence of possession of either the 142 grams of cannabis which the appellant had in his possession when he was arrested or the 1.84 kilograms found at his residence.

  Section 28(2) of the Drugs (Prevention of Misuse) Act, Cap 4.07, Revised Laws of Montserrat, 2002 applied; R v Morgan [1977] Crim LR 488 applied; R v Ribeyre (1982) 4 Cr App Rep (S) 165 applied; R v Llewellyn (1985) 7 Cr App Rep (S) 225 applied; R v Cox (1986) 8 Cr App Rep (S) 384 applied; R v Simms (1987) Cr App Rep (S) 417 applied; Richardson and another v The Queen [1989] ECSCJ No. 5 distinguished; Constantine and Williams v The State (1999) 57 WIR 361 distinguished.

• 3. It may well be that the money which the appellant had with him at the time of his arrest and the money found at his residence in the course of the search were monies derived from previous sales of cannabis by him (even out of the same consignment); and it may well be that his vehicle had at some time been used to transport cannabis; but, in the absence of any evidence relating the money found on the appellant and at his residence, and the vehicle in which he was sitting prior to his arrest, to the specific offence for which he was found guilty, it would not have been established that the money or the vehicle was relating to the offence. Furthermore, before or at the time of making the forfeiture order, the trial judge said nothing to suggest that he had even averted his mind to whether the vehicle was “relating to the offence”, which is a precondition under section 28(2) of the Act to the making of a forfeiture order. Therefore, the forfeiture order made by the trial judge with respect to the appellant's vehicle and the money found on his person and at his residence on the day of his arrest in January 2013 must be quashed and the money and the vehicle returned to the appellant.

  Section 28(2) of the Drugs (Prevention of Misuse) Act, Cap 4.07, Revised Laws of Montserrat, 2002 applied; R v Morgan [1977] Crim LR 488 applied; R v Ribeyre (1982) 4 Cr App Rep (S) 165 applied; R v Llewellyn (1985) 7 Cr App Rep (S) 225 applied; R v Cox (1986) 8 Cr App Rep (S) 384 applied; R v Simms (1987) Cr App R (S) 417 applied; Richardson and another v The Queen [1989] ECSCJ No. 5 distinguished; Constantine and Williams v The State (1999) 57 WIR 361 distinguished.

Appearances:

Mr. Ralph Francis for the Appellant

Mr. Oris Sullivan for the Respondent

JUDGMENT

Michel JA

[1] On 3^rd March 2014, the appellant was indicted for the offences of possession of cannabis for the purpose of drug trafficking, possession with intent to supply and simple possession.

[2] Very briefly, the facts are that on 19^th January 2013, a contingent of police officers approached the appellant whilst he was seated in the driver's seat of a motor omnibus parked near his home at Flemmings. The officers informed the appellant that they wished to search his vehicle, to which he consented. Prior to exiting the vehicle, however, the appellant took something out of the vehicle which he held in his left hand and put his left arm at his back. The police wrestled the item from him, which turned out to be a plastic bag containing 142 grams of cannabis. The police also found a large amount of money on the appellant made up of different denominations and currencies. The appellant was arrested and taken to a police station. The police then obtained a warrant to search the appellant's home. Upon conducting the search, in the presence of the appellant, the police found two large plastic bags together containing 1.84 kilograms of cannabis; they also found a quantity of money in the house.

[3] On 16^th April 2014, after a trial before judge and jury, the appellant was acquitted on the charge of possession of cannabis for the purpose of drug trafficking, but was found guilty of the charge of possession with intent to supply. As a result of the conviction for possession with intent to supply, no verdict was rendered on the simple possession charge. The appellant was sentenced to 3 years' imprisonment and a fine of $15,000 to be paid within 2 years, in default of payment of which he would serve an additional year in prison. Motor omnibus registration number H1373 belonging to the appellant and the sum of €350 and £160 found in his possession by the police at the time of his arrest and the sum of US$23 and EC$19.85 found at his home during the search were ordered to be forfeited to the Government of Montserrat.

[4] By notice of appeal filed on 29^th April 2014, the appellant appealed against his conviction and sentence on the following grounds:

• (1) The verdict is unsafe and cannot be supported in law.

• (2) The sentence imposed, that is, the fine of $15,000 to be paid within 2 years or 1 year imprisonment in default was wrong in law and principle and/or was not permissible in law.

[5] Although the appellant had not yet filed skeleton arguments in support of his appeal, on 5^th November 2014 the respondent filed skeleton arguments (with authorities) which addressed not only the two grounds of appeal contained in the notice of appeal, but also touched on other issues arising from the orders made by the judge, including the issue of forfeiture.

[6] On 23^rd June 2015, the appellant filed skeleton arguments in support of his appeal in which he made submissions not only on the two grounds of appeal contained in his notice of appeal, but also on a third ground, that is, that the forfeiture of the appellant's taxi was wrong in law and principle and/or not permissible in law.

[7] On 8^th July 2015, the respondent filed additional skeleton arguments, wherein it was stated that it was filed in response to the appellant's skeleton arguments. The respondent's additional skeleton arguments did not, however, appear to respond to the appellant's ground 3 contained in his skeleton arguments, that the forfeiture of the appellant's taxi was wrong in law and principle...