R v KJ

¶ _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 1 of 9 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 INDICTMENT NO: #0007/2021 4 5 6 THE QUEEN 7 8 v. 9 10 KJ 11 12 Appearances: Mr. Jacob Taylor for the Prosecution 13 Ms. Amelia Fosuhene of Brady Attorneys for 14 the Defendant 15 Before: Justice Cheryll Richards Q.C. 16 Submissions on Sentencing: 17th August 2021 17 18 Sentence Judgment: 27th August 2021 19 20 21 HEADNOTE 22 Criminal Law – Theft – Section 235(1) of the Penal Code 23 – Young Offender 24 25 26 27 SENTENCE JUDGMENT 28 29 30 31 32 33 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 2 of 9 PREAMBLE 1

¶ [1] Section 12 of the Youth Justice Act (2019 Revision) states: 2 “12. (1) In relation to any proceedings in any court, such court may direct 3 [and this court so directs] that- 4 (a) no published report of or comment on the proceedings shall 5 reveal the name, address or school, or include any 6 particulars calculated to lead to the identification, of any 7 young person concerned in the proceedings, either as being 8 the person by, against or in respect of whom the 9 proceedings are taken, or as being a witness in the 10 proceedings; and 11 (b) no picture shall be published as being or including a 12 picture of any young person so concerned in the 13 proceedings. 14 (2) Whoever publishes any matter in contravention of subsection (1) is 15 guilty of an offence and liable on summary conviction, in respect of 16 each such offence, to a fine of five thousand dollars or to 17 imprisonment for six months. 18 19

¶ [2] In pursuance of the section, this Judgment has been anonymized to protect the identity 20 of the Young Defendant. 21 22 SUMMARY OF FACTS 23 24

¶ [3] The Defendant is before the Court for sentencing following his guilty plea to the offence 25 of Theft pursuant to s.235 (1) of the Penal Code (2019 Revision. Indictment 7 of 2021 26 charged him with the offence of Robbery. The plea to Theft is acceptable to the 27 Prosecution. 28 29 30 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 3 of 9

¶ [4] The Prosecution summarises the facts as follows: On Saturday the 15th August 2020 at 1 about 9:20 p.m., in the vicinity of Camana Bay, the Complainant, DR, a young person, 2 was present with another person in the area of Scotiabank. He was approached by three 3 young male persons, one of whom, was the Defendant. The Defendant told the 4 Complainant to take off his gold necklace chain which he was wearing around his neck. 5 The Defendant held on to it and a struggle ensued between the two of them during which 6 the Defendant broke the chain from around the Complainant’s neck and walked away 7 with it. 8 9

¶ [5] The Police were called and investigations revealed that sometime thereafter, at an 10 unknown date, an unknown individual attended the home of the Defendant and collected 11 and returned the chain to the Complainant. 12 13

¶ [6] The Defendant was arrested at his home on the 11th November 2020 - about three months 14 after the incident. 15 16

¶ [7] Upon being cautioned the Defendant said “I done give him back his chain.” The 17 Defendant was interviewed on the 21st November 2020. 18 19

¶ [8] During the interview he accepted that he took the chain and said that he had been arguing 20 with the Complainant and had grabbed his shirt and accidentally broke the chain. He 21 said that he had returned the chain to a friend of the Complainant’s family. He said that 22 he went home with the chain in order to teach the Complainant a lesson. 23 24

¶ [9] The basis of plea which is acceptable to the Prosecution and agreed is as follows: 25 26 i. The Defendant’s case is that he was with [other male persons] in Camana 27 Bay. 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 4 of 9 ii. The [other male persons] got into an argument with the Complainant. 1 2 iii. The Defendant intervened in order to stop the argument. Due to the 3 interaction between the Defendant and the Complainant the Defendant held 4 onto the Complainant’s chain and took it. 5 6 iv. The Defendant accepts that in doing so he assumed the rights of the owner 7 and deprived the owner of the chain, even though he did have an intention 8 to give it back to the owner at a later date. 9 10 v. The Defendant gave the chain to a third party to be returned to the owner 11 shortly after it was taken. 12 SOCIAL INQUIRY REPORT 13 14

¶ [10] The Department of Children and Family Services (“DCFS”) has provided a Social 15 Inquiry Report (“SIR”) dated 12th July 2021. The Defendant is 16 years old. 16 17

¶ [11] The Report states that he has a history of delinquent activity in relation to the possession 18 and smoking of ganja and of poor behaviour at school. The poor behaviour manifested 19 itself in a refusal to attend classes, verbal aggression, threatening behaviour and a refusal 20 to accept responsibility for his actions. 21 22

¶ [12] He was before the Youth Court for drug charges in 2018 where he was made the subject 23 of a Youth Rehabilitation Order (“YRO”) on the 6th March 2018 and placed in the 24 Bonaventure Boys’ Home. He had earlier been diagnosed with Attention Deficit 25 Hyperactivity Disorder and Oppositional Defiant Disorder. While at the Boys’ Home, 26 he was placed in one year of psychological therapy. This was completed in July 2019. 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 5 of 9

¶ [13] After leaving the Home, he was enrolled in a local school in September 2019 but left the 1 school in April 2021 after finding it difficult to cope academically. The plan is for him 2 to be transferred to a skills training programme for the 2021/2022 academic year. 3 4

¶ [14] In addition to previous mental health issues, the Report states that academically, he has 5 low functioning skills which led to him being frustrated when he compares himself to 6 his peers. 7 8

¶ [15] Since the expiration of the YRO, there have been no adverse reports about him and his 9 grandmother, in whose care he is placed, has not observed any recent ganja smoking 10 activity. 11 12

¶ [16] The Probation Officer notes that it is unclear whether the offence of Theft to which he 13 has pleaded guilty may have been done by him in order to create an impression among 14 his peers. The Officer states that nevertheless, a message needs to be sent to him that 15 what he did is a crime, is ‘not cool’ and is not acceptable. 16 17

¶ [17] A one-year probation order is recommended with conditions. 18 19 VICTIM IMPACT REPORT 20 21

¶ [18] The DCFS made attempts to obtain a victim impact report, however, the mother of the 22 Complainant declined to allow her son to participate, citing the traumatic nature of the 23 incident. 24 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 6 of 9 SENTENCING GUIDELINES 1 2

¶ [19] In the absence of offence-specific guidelines in the Cayman Islands for the offence of 3 Theft, Counsel have referred the Court to the United Kingdom Sentencing Council 4 Guidelines. Both are agreed that the offence falls into the lowest category of those 5 Guidelines, being one of lesser Culpability – category ‘C, due to little or no planning - 6 and of category 4 Harm, due to the low value of goods stolen and no evidence of 7 significant additional harm to the victim or to others. The sentence range for such an 8 offence is a starting point of a Band B fine, with a sentence range of a discharge to a 9 Band C fine. 10 11

¶ [20] The maximum sentence in the United Kingdom is 7 years’ imprisonment and in the 12 Cayman Islands it is 10 years1. The Defence submit that there should be no uplift 13 because had the plea to Theft been accepted in the Summary Court, the maximum 14 sentence in the Summary Court would have been 7 years’ imprisonment. 15 16

¶ [21] It is agreed by both Counsel that there are no aggravating factors and it is also agreed 17 that the plea was offered at the earliest available opportunity – this given that before the 18 plea could be entered there were ongoing discussions between the Prosecutions and the 19 Defence in respect of the two co-Defendants against whom the charge of Robbery was 20 eventually discontinued. 21 22

¶ [22] In mitigation on behalf of the Defendant, Counsel submits that he is a young man who 23 has been before the Youth Court on only one previous occasion. The following factors 24 are also submitted: 25 1 Pursuant to s.241 of the Penal Code (2021 Revision) _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 7 of 9 i. His plea was entered at the earliest available opportunity; 1 2 ii. He returned the item even before the Police contacted him; 3 4 iii. In the course of the interview with the police he accepted that he had taken 5 it; 6 7 iv. He was trying to protect others in taking the item; 8 9 v. He is remorseful in respect of his actions; and 10 11 vi. There has been delay in dealing with this case because of issues with the co- 12 Defendants. 13 14

¶ [23] It is further submitted on his behalf that the Court considers ordering that no conviction 15 be recorded, pursuant to s.41 of the Penal Code, in respect of the offence if the 16 recommended course of probation is completed successfully. Counsel urges that he is a 17 young man who has promise and that he ought to be afforded the opportunity to have a 18 clean record as he enters adulthood. This is his first time before the Grand Court and he 19 is very young. 20 21 SENTENCE 22

¶ [24] This is a case where the Defendant is a young offender and unemployed and therefore, 23 a starting point of a fine, as suggested by the Guidelines, would be inappropriate. 24 25

¶ [25] The Court has referred to the Youth Justice Act, (2021 Revision) in particular, s.20 26 thereof. Section 20(5) states: 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 8 of 9 “(5) Where a young person has been found guilty of an offence before — (a) a 1 court of summary jurisdiction other than a youth court; or (b) the Grand 2 Court, the court may, in addition to or in lieu of any other sentence it has 3 power to impose on the young person for the offence, make any of the orders 4 which a youth court has power to make under this Act.” 5 6 7

¶ [26] These orders include a Probation Order. This case is approached with these provisions 8 in mind rather than the Guidelines. 9 10

¶ [27] This is a relatively serious offence, which occurred at night in public while the Defendant 11 was in the presence of others. By its very nature, it must have caused some trauma to the 12 Complainant. There is, on the facts, no excuse for such behaviour. It is criminal and 13 must be strongly condemned. 14 15

¶ [28] The Defendant must understand that this kind of behaviour is deserving of punishment 16 and must not be repeated. 17 18

¶ [29] He is clearly remorseful as evidenced by his return of the chain. However, this Court 19 notes that there is still an element of deflection of responsibility in his statement to the 20 Police, that is, that he was trying to teach the Complainant a lesson. No circumstance 21 justifies taking another’s property and the Defendant must understand this if he is to 22 ensure that he does not offend again. 23 24

¶ [30] Given his very young age, the fact that since the YRO was completed he has not 25 otherwise reoffended, the report of his grandmother about him, all the details provided 26 in the SIR and all the mitigating circumstances as outlined by his Counsel, the Court will 27 adopt the recommendations of the Probation Officer. 28 29 _____________________________________________________________________________________________________________ Sentence Judgment. R v HW, AE, KJ: Ind. 7/2021. Coram: Richards J. Q.C. Date: 27th August 2021. Page 9 of 9

¶ [31] The Defendant is sentenced as a young offender to a Probation Order of 12 months with 1 the following conditions: 2 3 i. That he attends skills training at Aspire Cayman Training School regularly 4 and obeys all the rules that are set by the teachers. 5 6 ii. That he attends all psychological sessions in accordance with the 7 instructions of his psychologist. 8 9

¶ [32] The Court also accepts the submission of his Counsel that the circumstances of the 10 offending and the offender are such that he ought to be given an opportunity to 11 commence life as an adult with a clean slate subject to his good behaviour over the next 12 12 months. 13 14

¶ [33] Consequently no conviction will be recorded if he successfully completes this course of 15 probation. 16 17

¶ [34] It is now up to him to make sure that he complies with the terms of his probation and 18 follows all instructions. 19 20 Dated this 27th August 2021 21 22 Honourable Justice Cheryll Richards Q.C. 23 Judge of the Grand Court 24 25