The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has dismissed a former prison officer’s attempts at contesting his conviction for drug offences after ruling that it has “no jurisdiction” to overturn a conviction stemming from a plea of guilty.

Appellate Justices Jon Isaacs, Stella Crane-Scott and Roy Jones said Brandario Miller’s guilty plea to two counts of possession of dangerous drugs with intent to supply rendered the court powerless to entertain his appeal in accordance to Section 233 of the Criminal Procedure Code.

And regarding Miller’s appeal against his sentence — six months or a $1,000 fine on each count – the appellate judges said the prospects of success of Miller’s grounds against his sentence were “nil”.

Miller had applied to the Court of Appeal for an extension of time within which to apply for leave to appeal his convictions and sentences for two counts of possession of dangerous drugs with intent to supply, handed down by then-deputy chief magistrate Andrew Forbes in 2017.

According to the ruling, on July 5, 2017, Miller appeared before then-Deputy Chief Magistrate Andrew Forbes along with his attorney Sonia Timothy, where he pleaded not guilty to the charges read to him.

Miller was subsequently denied bail and remanded into custody.

On September 12, 2017, he returned before the same judge, now an acting Supreme Court judge, along with his new attorney Jomo Campbell. The charges were read over to Miller and he pleaded guilty to both.

A summary of the facts of the matter were subsequently read to the court. According to those facts, Miller, a then-serving prison officer at the Bahamas Department of Correctional Services, was approached and searched at his place of work.

During the search two packets of drugs fell out of his pocket. Miller’s home was later searched and more drugs were found. He was arrested and cautioned for those drugs also.

Miller agreed to the facts as read by the prosecution. The magistrate then heard a plea in mitigation and convicted Miller. He then sentenced him to six months’ imprisonment on each count and fined him $1000 on each offence.

Failure to pay the fine would result in a further three months behind bars.

According to the ruling, Miller did not appeal within the seven days mandated for doing so. And as the appellate judges noted, he ought to have done so by September 20, 2017, at the latest.

Miller instead launched his application for leave to appeal on November 20, 2017, making for a delay of approximately eight weeks and four days.

In an affidavit filed on November 22, 2017, in support of his extension of time application, Miller claimed that upon his conviction and sentence, he immediately sought the assistance of the prison authorities in order to receive the necessary documents to file an appeal.

However, he claimed the prison authorities told him that because he pleaded guilty it was pointless to appeal and the documents were consequently denied to him.

Miller claimed it wasn’t until about November 16, 2017, that he discovered from his current attorney that, albeit limited, there were circumstances in which conviction and sentence after a guilty plea could be successfully appealed.

According to the ruling, no evidence was adduced by the Crown, the intended respondent in the matter, to counter Miller’s submissions, and the appellate judges thus found them to be a “reasonable explanation for the delay in filing his appeal”.

The appellate judges said Miller’s attorney, Geoffrey Farquharson, consequently faced the “Herculean task” of convincing them that in the face of the “very clear words” of section 233 of the Criminal Procedure Code, they had the jurisdiction to hear Miller’s appeal.

“It is unknown in the courts of this jurisdiction for defendants on being asked how did they plead, to answer, ‘guilty, with explanation,’” the ruling said. “Faced with such a ‘plea’ the tribunal would go on to enquire of the defendant to expound on the plea.

“If the explanation provided reveals a defence, the court has to enter a not guilty plea for the defendant.

“Inexorably, where a defendant does not make any comment which may suggest he is not guilty and has a defence, we may be satisfied that the guilty plea is unequivocal; and in those circumstances, has properly pleaded guilty to the charges.

“We do not propose to enter into a consideration of the merits or otherwise of the factors in relation to (Miller’s) convictions because we are satisfied that (Miller) has pleaded guilty and been convicted by (then-Magistrate Forbes) and section 233 of the CPC is ‘pellucidly clear,’” the ruling added. “The jurisdiction of this court to hear appeals is entirely by statute.

“We do not have the jurisdiction to entertain an appeal against (Miller’s) conviction. Thus, we may only consider the application for an extension of time in relation to the sentences imposed by (then-Magistrate Forbes).”

Concerning the appeal against sentence, the appellate judges noted that Miller faced a maximum penalty of a $250,000 fine or five years’ imprisonment, or both a fine and imprisonment.

They also noted that the judge, in sentencing Miller, noted that the former prison officer had no previous convictions, co-operated with the police, and that the drugs involved were a “relatively small” quantity. The appellate judges said the trial judge found that those factors weighed in Miller’s favour.

The appellate judges further noted that the trial judge also considered the aggravating factors of the case, that Miller was an employee at the BDCS; the prevalence of the offence committed by others similarly employed and the need to not condone such behaviour.

Thus, the appellate judges ultimately said they found nothing wrong with the sentencing approach as the judge was “enjoined to consider both the circumstances of the case and the circumstances of the offender.”