R v April Angeles Bautista - Sentence Judgment

¶ 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 1 of 14 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 IND NO: 9 of 2022 4 5 6 7 R 8 9 V. 10 11 APRIL ANGELES BAUTISTA 12 13 14 15 Appearances: Ms. Orrett Brown, Crown Counsel, Office of the Director of Public 16 Prosecutions for the Prosecution 17 18 Mr. Jonathon Hughes, Samson Law for the Defence 19 20 21 Before: The Hon. Justice Cheryll Richards KC 22 23 Submissions Heard: 8th November 2024 24 25 Sentence Judgment: 21st November 2024 26 27 28 29 Criminal Law – Sentencing, Theft contrary to s.241 of the Penal Code (2022 Revision) - Sentencing 30 following guilty plea – Totality Principle and Principles on Sentencing. 31 32 33 34 35 36 37 38 39 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 2 of 14 SENTENCE JUDGMENT 1 2 3

¶ [1] The defendant is before the Court for sentencing following her guilty plea to the single count 4 on the Indictment. This charges her with Theft contrary to s. 241 of the Penal Code (2019 5 Revision). The particulars are that she between the 8th February 2019 and the 27th February 6 2019, in the jurisdiction of the Cayman Islands, stole approximately KYD $18,727.75 in cash 7 belonging to Eats Fresh Limited T/A Subway Limited. 8 9

¶ [2] By s. 241 of the Code the maximum penalty where the value of the thing stolen exceeds five 10 thousand dollars is ten years imprisonment. 11 12 SUMMARY OF FACTS 13 14

¶ [3] The prosecution has provided a summary of the facts which is not disputed. The defendant is a 15 Philippine national. In June 2017 she migrated from her home country to take up employment 16 with Eat Fresh Limited, trading as Subway (“the Company”). This is a business which operates 17 in the Cayman Islands at multiple locations. It is owned by the victims, Lisa and Troy Burke. 18 The defendant had been recommended to the owners by her sister, Annie Bautista-Simon who 19 is a former employee of the Company. 20 21

¶ [4] The defendant was employed as an Assistant Manager. Her duties included cash handling, 22 verifying the funds received at the end of each day, depositing these funds into bank accounts 23 and documenting the daily deposits onto a cash sales summary report. 24 25

¶ [5] On the 1st March 2019, Mr. and Mrs. Burke made checks into their online bank account and 26 noticed that the Company’s accounts were short on funds to perform payroll upload and was 27 overdrawn for the period 8th February to 27th February 2019. This was inconsistent with the 28 deposits reported by the defendant to the Corporate Office and recorded in the accounting 29 system. 30 31

¶ [6] As a result of this an internal investigation was launched to ascertain what deposits were 32 outstanding to be made to the bank from various stores. This disclosed that there had been a 33 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 3 of 14 lapse in deposits and as such a check was made in relation to the Company’s bank account. No 1 deposits were being shown in the Company’s online bank account and accordingly there were 2 no night deposits recorded on dates that the defendant had advised that there was. 3 4

¶ [7] Following an internal investigation and assistance from the police, it was found that between 5 the 8th and 27th February 2019, the defendant had stolen from the Company the amount recorded 6 in the Indictment. 7 8

¶ [8] The defendant was spoken to by Mrs. Burke and another company staff member Ms. Tanya 9 Pennant. The defendant confessed to stealing the money, telling Mrs. Burke “I didn’t spend it 10 in large portions, I didn’t buy any house, any land, I didn’t send it home”. 11 12

¶ [9] The defendant was asked by the staff member what she did with the money, and she replied, “I 13 don’t know”. The defendant’s sister contacted the Company, apologised on the defendant’s 14 behalf, and made an initial repayment of $1,500.00. The defendant’s sister stated that she would 15 sell family property and repay money from her salary to compensate the Company. However, 16 no additional payments were made. 17 18

¶ [10] The police were called, and the defendant was arrested. During her police interview under 19 caution on the 9th August 2018, the defendant in the presence of her attorney provided a 20 prepared statement in which she denied stealing any money. She said that she had in fact made 21 the night deposits and could not explain why the deposits were not reflected in the account 22 statement. 23 24 COURT APPEARANCES 25 26

¶ [11] The defendant first appeared before the Summary Court on the 7th December 2021. Disclosure 27 was served following which there were hearings on the 15th December 2021 and 11th January 28 2022 relating to issues involving legal aid. The defendant’s case was committed to the Grand 29 Court on the 25th January 2022. 30 31 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 4 of 14

¶ [12] In the Grand Court, there were three appearances before the defendant entered a plea of not 1 guilty on the 29th April 2022. The case was listed for trial. The time estimate for the trial was 2 ten days. A number of trial dates were adjourned upon the information that the defendant was 3 suffering from a serious medical illness and required surgery. Medical Reports were provided. 4 The trial dates were 3rd October 2022, 27th March 2023, 24th July 2023, 4th October 2023, and 5 3rd June 2024. 6 7

¶ [13] There were nine listed hearings before a plea of guilty was entered on the 3rd June 2024, the 8 last scheduled trial date, although an indication had been given some days earlier that there 9 would be a plea. The prosecution submits that the guilty plea in fact only came on the day of 10 trial. 11 12 VICTIM IMPACT REPORT 13 14

¶ [14] The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact Report 15 dated 29th July 2024, (“VIR”). Attached to this is a Victim Impact Statement from Lisa Burke 16 who writes on behalf of both victims. They state that the defendant’s betrayal of trust has had 17 significant financial, emotional and psychological repercussions. It caused substantial financial 18 strain as the money was essential for daily operations. At the time they were in the midst of 19 building a new store and had extra staff for training. With the added expense of construction, 20 this was the worst time for them to be short of funds. They state that the loss disrupted their 21 financial stability. They had to make difficult decisions to mitigate the impact. The recovery 22 from the setback took considerable time and resources. 23 24

¶ [15] Under psychological effects and treatment, Mrs. Burke states that preparing for trial multiple 25 times has been distressing and brought the emotional toll of revisiting the theft and feelings of 26 betrayal anger and helplessness. This affected her overall well-being. She states that: 27 28 “In addition to the $18,727.95 theft, not including interest for the past five years, the time 29 and effort spent preparing for the trial have been overwhelming. Gathering evidence and 30 meeting with attorneys consumed countless hours that could have been used for work and 31 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 5 of 14 personal commitments. These constant interruptions and the need to reschedule important 1 tasks have caused significant stress and anxiety. 2 3 The theft has eroded our trust, leading us to avoid hiring for a similar managerial position 4 for the past four years. This decision has significantly increased the workload for both 5 myself and Troy, adversely affecting our primary business, other ventures, and personal 6 lives as we work to regain trust in staff handling cash.”1 7 8 ANTECEDENT HISTORY 9 10

¶ [16] The defendant has no previous convictions recorded against her. 11 12 SOCIAL INQUIRY REPORT 13 14

¶ [17] The DCR has provided a Social Inquiry Report dated 30th September 2024 (“SIR”) in respect 15 of the defendant. The Court has read this Report in its entirety and takes into account everything 16 said therein in favour of the defendant. 17 18

¶ [18] The defendant is 32 years old. She is married with two young children, ages 3 years and 5 19 months old. She is the primary caregiver for them. The defendant grew up in the Philippines 20 in a loving household with supportive parents. She completed High School and tertiary 21 education without incident. Thereafter she worked at various jobs before migrating to the 22 Cayman Islands in 2017 to work for the Company. She was employed for some two and a half 23 years, managing the finances for all four locations of the Company before being terminated for 24 this offending. She secured other employment in 2020 and worked until August 2023 when her 25 employment contract ended. She did not renew her contract because of her health challenges. 26 She is presently unemployed and is financially supported by her husband. She would be unable 27 to pay a financial penalty or compensation because she has no financial resources. She has had 28 serious health challenges and in 2021 underwent major surgery. Her health is now stable with 29 the assistance of daily medication. 30 31 1 Page 2 of VIR 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 6 of 14

¶ [19] Her husband expresses concern that the family will not be able to afford alternative childcare 1 should the defendant be incarcerated. 2 3

¶ [20] Under the heading Attitude Towards Offending, the Probation Officer records that the 4 defendant said that she was unable to explain why she had stolen the money. She said it was 5 just stupidity on her part as at the time she did not have significant financial responsibility but 6 had been short of money. She would take a few hundred dollars for her personal use from the 7 collection for the last day of the week. She is unsure how she could have stolen as much as 8 $18,000.00. The defendant expressed her regret and feelings of remorse for her actions. 9 10

¶ [21] Under the heading Assessment/Evaluation, the defendant is assessed as being at very low risk 11 of re-offending. The Probation Officer states that there is every indication that the defendant 12 was exposed to the appropriate morals and taught the difference between right and wrong. The 13 Officer also states that at the time of the offending the defendant gave no thought to the impact 14 which her actions would have on the victims. She was unable to give a reason why she 15 committed the offence as she was not under financial pressure. The Officer concludes that given 16 the account of the defendant, “there appears to be situational opportunity and a lack of self- 17 control when she committed the offence”. The recommendation is that the defendant may need 18 to address issues of impulsivity to prevent future reoffending. 19 20

¶ [22] As to the possibility of a community-based sentence the Probation Officer states: - 21 22 “While the Client could benefit from engaging in a community-based order, it is noted 23 however, that as the Client may be required to leave the jurisdiction shortly, her ability to 24 access services and level of engagement will be significantly impacted. Hence a 25 community-based sentence with supervision is not deemed suitable at this time. The Client 26 will therefore also not be deemed suitable for a Community Service Order. 27 28 Given the seriousness of her crime, as well as the breach of trust element of the offence, if 29 the Court is not minded to impose a period of imprisonment, a suspended sentence could 30 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 7 of 14 be considered. The Court may also consider imposing restitution to account for the 1 financial loss to the victims in this matter.”2 2 3 THE SUBMISSIONS 4 5

¶ [23] Both Counsel have referred the Court to the United Kingdom Sentencing Council Guidelines 6 for the offence of Theft. There are no offence specific Guidelines in the Cayman Islands at the 7 date of sentencing. However, the Chief Justice’s Statement on Tariffs and Guidelines for 8 Sentencing for Certain Offences (2002) provides for a tariff of 1-4 years for an offence where 9 there is a breach of trust: - 10 11 “For offences of THEFT or related offences, depending on the value of the property 12 stolen and any other aggravating factors, particularly where there is a breach of trust 13 in the context of a relationship of employment, an immediate term of imprisonment 14 ranging from 1 to 4 years for a first offence, and an order for repayment, will likely be 15 imposed. The tariff could be higher still depending on the seriousness of the offence.” 16 17

¶ [24] By reference to the United Kingdom Sentencing Council Guidelines for the offence of theft 18 (“the SGC Guidelines”), the prosecution submits that culpability can be nothing less than 19 Category A because this offending involves a breach of a high degree of trust or responsibility. 20 The defendant was employed in a senior position in the Company, and was responsible for 21 handling significant quantities of cash. It is because of the position of trust that the defendant 22 was able to carry out this offence. 23 24

¶ [25] With respect to harm, the prosecution submits that this offence is at the lower end of Category 25 2 harm because the value stolen was $18,727.75. The equivalent of this was GBP £17,149.00 26 in February 2019. 27 28 29 30 2 Page 9 of SIR 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 8 of 14

¶ [26] The starting point for a Category A2 offence is 2 years’ custody, with a range of sentence of 1 1 year to 3 years 6 months’ custody. 2 3

¶ [27] Defence Counsel accepts that this is a Category 2 case but submits that on the monetary bands, 4 it must fall at the very bottom end of that category. Counsel submits that the starting point 5 should be adjusted accordingly because of this. 6 7

¶ [28] The prosecution submits that there are two aggravating factors. The offence was not an isolated, 8 one-off theft. It was committed over a period of two weeks and five days and involved the theft 9 of multiple sums of money. Counsel also refers to the high level of inconvenience caused to 10 the victims because of the financial impact on the business. 11 12

¶ [29] Defence Counsel disagrees that there are aggravating factors and submits that while the 13 allegation is that the funds were taken over a nineteen day period, this should be seen in the 14 context of an employment relationship which lasted two and a half years. Counsel submits 15 that the conduct is not sufficiently sustained such that it warrants an upward adjustment to the 16 starting point by way of aggravation. 17 18

¶ [30] As to the impact on the business, Counsel submits that the VIR speaks to impact in the context 19 of building a new restaurant. There is reference to incurring an overdraft and additional loans 20 to complete the project. Counsel said that it is not clear if these overdraft/additional loans were 21 within or without the $18,727.75 taken by the defendant. Counsel submits that “in any event, 22 it is inherent in the Court’s assessment of harm that financial loss occurs and that will have an 23 impact on the loser. Whether there has been “a high level of inconvenience caused to the victim 24 or others” is considered at the harm calculation stage and should not be double counted.” 25 26

¶ [31] It is difficult to accept defence Counsel’s submission on this aspect, surely one must take one’s 27 victim as one finds him. Depending on the circumstances of a victim, a theft of this nature may 28 or may not be significant. The victim’s account was that this occurred at a time of expansion 29 and new hire when their financial resources were already depleted. The impact on them must 30 be accepted to be greater than it would have been at another time and for another business. 31 32 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 9 of 14

¶ [32] The SGC Guidelines provide for a two stage process in assessing harm and states: - 1 2 “Harm is assessed by reference to the financial loss that results from the theft and any 3 significant additional harm suffered by the victim or others – examples of significant 4 additional harm may include but are not limited to: 5 6 Items stolen were of substantial value to the loser – regardless of monetary worth 7 High level of inconvenience caused to the victim or others 8 Consequential financial harm to victim or others 9 Emotional distress 10 Fear/loss of confidence caused by the crime 11 Risk of or actual injury to persons or damage to property 12 Impact of theft on a business 13 Damage to heritage assets 14 Disruption caused to infrastructure” 15 16 SUBMISSIONS IN MITIGATION 17 18

¶ [33] In mitigation Counsel submitted that one of the reasons for the significant delay in the 19 resolution of this case was a serious medical issue which the defendant had. Counsel drew the 20 Courts attention to the medical records of the defendant, and the Court takes note of the serious 21 nature of her medical issues, the requirement for continued follow-up checks every three to six 22 months and the significant financial cost of this treatment. 23 24

¶ [34] Counsel submits that in addition to her medical condition the following are mitigating factors:- 25 26 Remorse (as detailed in the SIR) 27 Restitution (albeit limited) 28 Assessed as posing a ‘very low’ risk of re-offending 29 Mother of two young children, one of whom is only 6-months-old. 30 31 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 10 of 14

¶ [35] Counsel said that despite the late plea, the defendant is remorseful. The fact that it was her 1 sister who got her the job has amplified and contributed to a sense of shame around her 2 involvement in the offence. 3 4

¶ [36] Counsel submits that this is a curious case. The defendant is not known to be materialistic. 5 There is no suggestion of luxurious spending. She began giving herself “informal bridging 6 loans” but the repayments quickly fell away and by the end there was much more money 7 coming out than was being put back in. Counsel said that this was not a sophisticated or 8 planned offence. It began without the intention to be dishonest but morphed into an offence in 9 which dishonesty played a part. The end figure took the defendant by surprise because the 10 money was coming out in drips and drabs. Some of it was sent to ailing parents in the 11 Philippines and the rest spent on day-to-day expenses. 12 13

¶ [37] Counsel submits that when all the defendant’s circumstances are considered in this case a short 14 custodial sentence would do more harm than good. 15 16

¶ [38] As to credit for guilty plea, Counsel submits that the defendant should be afforded credit for 17 her plea. Counsel says that all of the aims for affording credit are met in this case. The plea 18 avoided the need for a trial, saved considerable costs and resources, and saved the victims and 19 witnesses from the ordeal of giving evidence. It also acts as an encouragement to others to 20 plead guilty where appropriate. All of these aims are met in this case, and so a reduction should 21 be applied. Counsel accepts that this plea on any view was late in this case and is unlikely to 22 attract a full discount. Nevertheless it is urged that the medical history of the defendant and the 23 mental and financial strain which it occasioned, puts the decisions of the defendant in this case 24 in some kind of context. 25 26

¶ [39] Counsel also submitted that although the guilty plea was entered ‘on the day of trial’, an 27 indication was given well in advance that the trial was unlikely to proceed and witnesses were 28 not required to be brought to Court. As a result, other trials were identified and the Courtroom 29 was not left empty. 30 31 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 11 of 14

¶ [40] Counsel notes that the Court may pursuant to section 22(4) of the Penal Code, order that a 1 sentence of imprisonment of 2 years or less be suspended. It is submitted that “because of the 2 defendant’s personal mitigation, and specifically her poor health, the recommendations within 3 the SIR, and the likely length of any custodial sentence, this is a case in which the Court may 4 properly exercise its discretion to suspend any period of imprisonment as an exception to the 5 usual rule”. 6 7 THE SENTENCE 8 9

¶ [41] This Court accepts the submissions of both Counsel that by reference to the SGC Guidelines 10 this is a culpability A offence because of the significant breach of trust. The defendant was 11 trusted with the earnings of the business which were mostly in cash. The harm is at level 2 12 because of the amount stolen. The starting point in the United Kingdom is 2 years imprisonment 13 with a range of sentence of 1 year to 3 years and 6 months custody. However, the maximum 14 sentence in the United Kingdom is 7 years imprisonment. In the Cayman Islands it is 10 years. 15 16

¶ [42] In the case of R v Robert Aspinall3, the Appellate Court stated that the SGC Guidelines cannot 17 be applied in the Cayman Islands without taking into account the higher maximum sentence 18 for theft in this jurisdiction. The Court said that the higher maximum in the Cayman Islands is 19 an explicit statutory direction as to how seriously theft is regarded in this jurisdiction. 20 21

¶ [43] In the instant case, this Court proposes an uplift of one third from the United Kingdom starting 22 point from 24 months to one of 32 months. It is considered an aggravating factor that there was 23 multiple offending over a sustained period of time. This was not a one off theft. This factor 24 serves to increase the sentence by 6 months to one of 38 months. It is also an aggravating factor 25 which was not taken into account at the harm stage that there was a high level of inconvenience 26 caused to the victim and others but little weight is given to this factor at this stage because there 27 was no reduction made to the starting point for the lower level of the value of the offending. 28 29 3 CICA 16/2016 Unreported Judgment dated 6th December 2016 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 12 of 14

¶ [44] From the 38 months, there is significant mitigation in the case. The defendant has no previous 1 convictions and is of good character. The Court accepts the findings in the SIR and the 2 submissions of Counsel that she is genuinely remorseful. Limited restitution has been made on 3 her behalf. She is assessed to be at very low risk of re-offending. She is the primary caregiver 4 for her two young children and there will be difficulties in her absence. Additionally, she has a 5 serious medical condition. Because of the combination of these circumstances an exceptional 6 reduction is made of 18 months for a balance of 20 months imprisonment. As recommended 7 by the Cayman Islands Sentencing Guidelines where the plea came at the door of the Court 8 the usual reduction is for 10%. However again an exception is made because of her overall 9 circumstances in particular her medical condition and a reduction of 25% is afforded to her for 10 a final sentence of 15 months imprisonment. 11 12

¶ [45] The Court has considered whether the proposed sentence is proportionate to the offending. The 13 offending clearly passes the custody threshold. It is a breach of trust which is serious. It had a 14 significant effect on the victim and on the business. It appeared to have been committed for no 15 reason other than plain and simple dishonesty. The defendant’s conduct thereafter was 16 inconsistent. Rather than fully admitting at an early stage what she had done and making an 17 offer even of a partial plea, she put the victims through years of uncertainty and preparation for 18 trial. Praying in aid her medical issues does not and cannot completely explain this conduct. 19 Her admissions came at a very late stage when she well knew what she had done. She took the 20 money not once but over a period of time. By her actions she has destroyed the faith that was 21 placed in her by her family and the victims. Plainly the proposed sentence is proportionate to 22 the serious nature of the offending which involves a breach of trust. Her personal circumstances 23 have been considered in particular her medical issues as well as everything said in her favour 24 by her Counsel and in the SIR. Community service is not an option given the nature of the 25 offending. The aims of sentencing must be to provide due reparation for the harm done as well 26 as punishment, deterrence and rehabilitation. The Court notes the request of defence Counsel 27 but does not consider a suspended sentence to be appropriate in the serious circumstances of 28 this case. The father of the children must make the appropriate arrangements to care for them. 29 30 31 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 13 of 14

¶ [46] The sentence is therefore 15 months imprisonment to be served immediately with any time 1 previously served to be taken into account. 2 3 ANCILLARY ORDERS 4 5

¶ [47] The prosecution applies for a compensation order for the outstanding amount of $17,227.75 6 pursuant to section 33 of the Penal Code (2024 Revision). 7 8

¶ [48] The Court is also asked to exercise its discretion to award an amount of interest on that sum 9 (given the five years since the commission offence), as well as any additional compensation 10 spent for the inconvenience, stress and difficulty caused by the defendant. 11 12

¶ [49] The defence submits in response that should the Court impose a custodial sentence, it would 13 be inappropriate to make a compensation order which the defendant would have no prospect 14 of fulfilling. 15 16

¶ [50] Counsel refers to the case of Inwood4 in which Scarman LJ said (at p. 73): - 17 18 “Compensation orders were not introduced into our law to enable the convicted to buy 19 themselves out of the penalties for crime. Compensation orders [are] a convenient and rapid 20 means of avoiding the expense of resort to civil litigation when the criminal clearly has 21 means which would enable the compensation to be paid.” 22 23

¶ [51] Counsel submits that the defendant has no means to pay compensation. She is currently 24 unemployed and is entirely dependent on her husband for support. 25 26 27 28 29 30 31 4 (1974) 60 Cr App R 70 241121 R v April Angeles Bautista Ind. 9 of 2022 Coram Richards J KC - Sentence Judgment Page 14 of 14

¶ [52] The Court accepts that there is no evidence in the material before the Court that the defendant 1 has or will have the means to pay a compensation order. Consequently, no compensation order 2 can be made in this case. 3 4 Dated this the 21st November 2024 5 6 The Hon. Justice Cheryll Richards KC 7 Judge of the Grand Court 8