Appeals court judges will wrestle with wether an indictment should include a reference to a person accused of having drugs was inside an Increased Penalty Zone.

Admitted drug dealer Roger Minors? lawyer, Richard Horseman, contended the increased penalty zone had not been included in the charge and therefore Minors was not given the chance to plead guilty or not guilty for it, while senior Crown counsel Lloyd Rayney argued it was a matter for sentencing and did not need to be included in the indictment.

Minors, 54, pleaded guilty in January to two counts of possession with intent to supply after more than 500 grams of marijuana were found on him and his property in June, 2002.

In June Supreme Court Justice Norma Wade Miller sentenced him to three years imprisonment on each charge to run concurrent.

However she added one year to each of those sentences because Minors was caught by Police within an increased penalty zone (on Court and Dundonald streets near the home school, Excellence) and his apartment, where the majority of the marijuana was found, is on Cedar Avenue in the increased penalty zone near Saltus Grammar School and the Muslim Community Centre School.

Minors was jailed for four years in total. However Mr. Horseman argued that the extra year for the increased penalty zone should be removed from the statement as it was not included on the indictment and, had Minors wished to contest it, he would not have been able to.

Whether Minors was in fact in the increased penalty zone or not was irrelevant, he said. ?We did not challenge the fact that he was in the increased penalty zone, we challenged the fact that the indictment did not include that? It?s irrelevant, and it shouldn?t be a factor in the sentence.?

At first, appeal justices Sir James Astwood, Philip Clough and Gerald Nazareth appeared to agree with Mr. Horseman. ?It?s in fairness to people to know what they are charged with,? pointed out Sir James.

However they later admitted Mr. Rayney had presented them with some ?very persuasive arguments?. Mr. Rayney pointed out that not only was there no requirement in law for an indictment to include if the crime took place in an increased penalty zone, but also that this was a sentencing factor similar to victim impact statements or probation reports which a jury never sees and only a judge has access to.

He added being in an increased penalty zone was not an aggravating factor such as, for example, having a weapon during an armed robbery. ?It is not a factor in the element of the offence, only for sentencing,? he said.

?We want the year taken off, it is the only part of the sentence we are looking to appeal,? concluded Mr. Horseman. The Appeal Courts? decision will be heard later this month.