Cannabis sentence appeal upheld
A 44-year-old mother of two has won an appeal against a three-month jail term imposed for an attempt to smuggle cannabis into Bermuda to treat her chronic epilepsy-like seizures.
Natasha York was sentenced to a year in prison in 2018 after she admitted she tried to bring the 1,430 grams of the drug contained in hemp oil and hemp butter through the airport, but magistrate Khamisi Tokunbo suspended nine months of the term because of her circumstances.
But Puisne Judge Shade Subair Williams ruled: “The appellant appeared before the magistrate as a 41-year-old mother of two daughters of minor age, with no criminal history or suggested criminal affiliation and on an early guilty plea.”
Mrs Justice Subair Williams said “It was clearly accepted, by the Crown and by the magistrate, that the appellant had no intention of sharing the imported cannabis with any other person and that her sole purpose for bringing the substance to Bermuda was to privately smoke, it as a means of relieving herself of regular and injurious seizures.
“Given the facts of the case, I find that it was particularly harsh and unreasonable for the magistrate to compel the appellant to serve a three-month portion of her 12-month custodial sentence.”
Mrs Justice Subair Williams said that it was a substantial amount of the drug, but “the factual reality is that this case bears more of a resemblance to an offence of simple possession by a first-time offender, driven by desperation to obtain medical treatment and healing from a serious and chronic ailment”.
She added: “But for such unique circumstances, I would agree that an offence of importation of 1,430.7 grams of any illicit substance would otherwise result in an immediate term of imprisonment.”
Mrs Justice Subair Williams said: “In my judgment, the whole of the 12-month term of imprisonment ought to be suspended ... for a term of three years following the date of conviction.”
The judgment came after a hearing last Thursday.
Ms York, then 41 and from St George's, was released four days after she was put behind bars in June 2018, after she lodged her intention to appeal.
She was caught by Customs officers at the airport in May 2017 with the drug, which was said to have an estimated street value of more than $71,500, after she travelled to Canada to buy it at a cannabis conference. The move came after a variety of prescribed drugs failed to give her relief from her condition.
Magistrates' Court heard that a desperate Ms York went to Canada, where medical use of the drug was legal, after her application for a licence to import medical marijuana was refused.
But she was later granted permission to bring in the drug.
She was sent to prison despite a plea from her doctor, Kyjuan Brown, the medical director at Northshore Medical & Aesthetics Centre. Dr Brown told Magistrates' Court in a medical report that use of the drug had caused Ms York's symptoms to “abate completely”.
He added: “She no longer suffers seizures nausea and visual auras. Her life essentially returned to normal within minutes.”
Mrs Justice Subair Williams also said in her judgment that the appeal hearing was “excessively delayed beyond the point of satisfaction from any perspective”.
She added the case had been delisted on August 21, 2018 from its August 22, 2018 fixture, which a court administrator had said was “due to court contingencies”.
Mrs Subair Williams said it was not until March this year that the “next step of progression” was taken with the notice of appointment of an attorney.
She added: “This is a clear illustration of the importance of criminal appeals being managed through the open court process.
“For this reason, I find it necessary to reiterate that criminal appeal fixtures ought not to be delisted administratively.
“Only in extreme circumstances should a delisting of a criminal appeal hearing be permitted and in any such case it should only be delisted on the written and express approval of the Registrar or a judge of the Supreme Court.
“Otherwise, an adjournment must be sought openly in court.”
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