Marijuana criminal record preventing son from migrating
Dear Mrs Macaulay,
My son was caught at Norman Manley Airport in 2004 with five pounds of marijuana attempting to travel to Trinidad. He was locked up and was given time served. I am trying to file for him to come to the States but they say he needs to get his criminal record expunged; however, we have been trying for years now with no avail. Can his record be expunged seeing that it involved marijuana export?
Dear Mother,
I am afraid that your letter is very short of relevant facts. You say that your son was caught at Norman Manley Airport in 2004 with five pounds of ganja while there for the purpose of travelling to Trinidad. Then you say that he was locked up and was given time served. You have not said what he was charged with and when he was tried and sentenced. He must have been charged, tried, even if he pleaded guilty and then he would have been sentenced. You say his sentence was “time served”. This would mean that he had spent a long time in custody before his matter went to trial and it was completed. You then jumped to the matter of you trying to get him to be with you in the States but mention that “they” say he needs to get his criminal record expunged. You have not said who “they” are. You assert that you and he have been trying for years but to no avail. You then ask me if his record can be expunged.
My direct and short answer to the point is “no, it cannot be expunged”. However, it is only the Criminal Records (Rehabilitation of Offenders) Board established under the Criminal Records (Rehabilitation of Offenders) Act, which has the legal authority to deal with expungement applications and decide to grant or reject them according to the provision of the law. If the application is rejected then the applicant, as the Act provides, can reapply and if again rejected he or she can appeal to the minister.
However, in your son’s case, he was at the airport to fly to Trinidad and had five pounds of ganja in his possession, which would fall within the offence of either attempting to export five pounds of ganja or exporting 5 lbs of ganja, under the Dangerous Drugs Act. This is why what he was charged with is relevant and the length of his sentence. That is to say, how long he was in custody, which the judge used for his sentence by saying “time served”. All these facts should be put in writing for the application to the board and the certified copy of his court file and all notations therein and on, must also be attached. You have not said also whether he was fined. Every fact of your son’s identity, occupation, residential address and record after this 2004 offence with any available documentary proof must be submitted to the board.
Anyway, as I said earlier, his record cannot be expunged because he committed one of the offences of the Dangerous Act, for which expungement is excluded in law. These offences carried very heavy sentences and if the person is tried in the Circuit Court he/she could be sentenced to many years in jail plus being fined several dollars for each ounce of the ganja found in their possession. If he was tried in the then resident magistrate court, then if found guilty, he would also be fined for each ounce of ganja and sentenced, in such summary court, to a term of imprisonment of up to three years. The judge, of course, depending on the facts and circumstances, would impose what is considered a fair and appropriate sentence.
You say that you have been trying for years but you have not said whether this was by making several applications to the board, because you would have been informed of the reason for any and all rejections. If it was not the board, to whom and where has your son been applying?
It seems to me, that if your son, since the 2004 conviction, has not committed any other offence, that he should consider trying to obtain a pardon for his 2004 conviction.
Do have him talk with a lawyer so that he can fully relate the facts and ask that he or she pursue a petition for a pardon on his behalf.
I have tried not to be too legalistic and I hope that I have clarified the position to you and for your son.
I hope you both succeed in resolving his situation so that he can join you. A pardon would completely clear his record. This is why I have suggested that it be tried.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
DISCLAIMER:
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.
