R v Okia Rainel Porter - Sentence Judgment

¶ 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 1 of 8 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 102 & 103 of 2023 4 5 6 7 R 8 9 V. 10 11 OKIA RAINEL PORTER 12 13 14 15 Appearances: Ms. Shauna-Kaye James, Crown Counsel, Office of the Director 16 of Public Prosecutions for the Prosecution 17 18 Mrs. Prathna Bodden of Samson Law for the Defence 19 20 Before: The Hon. Justice Cheryll Richards KC 21 22 Submissions Heard: 27th June 2024 23 24 Sentence Judgment: 27th June 2024 25 26 27 28 29 Criminal Law – Sentencing, Robbery contrary to s.242 of the Penal Code (2022 Revision), 30 Principles on Sentencing, Application of the Cayman Islands Sentencing Guidelines. 31 32 33 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 2 of 8 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his guilty pleas to two 3 offences. Count 1 charges him with the offence of Robbery contrary to s.242 of the Penal 4 Code (2022 Revision). The particulars are that he on the 19th day of November 2023 at 5 the 4-Way 24 Hour Convenience Store, located at #8 Town Hall Road, West Bay, Grand 6 Cayman, Cayman Islands, stole $1,029.00 the property of Matthew Tibbetts and at the 7 time of doing so and in order to do so used force towards Rogelio Liao. 8 9

¶ [2] The maximum penalty is life imprisonment. 10 11

¶ [3] Count 2 charges him with the offence of Conspiracy to Commit Robbery contrary to 12 s.242 and s.321 of the Penal Code (2022 Revision). The particulars are that he on the 13 19th day of November 2023 in the jurisdiction of the Cayman Islands conspired together 14 with Mylika General and others unknown to rob the 4-Way 24 Hour Convenience Store, 15 located at #8 Town Hall Road, West Bay, Grand Cayman, Cayman Islands. 16 17

¶ [4] The defendant first appeared before the Grand Court on the 8th December 2023. The case 18 was adjourned for disclosure and legal aid issues to be addressed. On the 25th January 19 2024, the defendant offered a plea to the offence of Theft on the full facts which was not 20 acceptable to the prosecution. 21 22

¶ [5] On the 7th February 2024, the defendant entered pleas of guilty to both counts of the 23 Indictment. Sentencing which was initially set for the 5th April 2024 has been delayed 24 because of a change of Counsel and time needed to take further instructions. 25 26

¶ [6] It is agreed that the defendant is entitled to the full credit of one third for his guilty pleas. 27 28 29 30 31 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 3 of 8 THE FACTS 1 2

¶ [7] The prosecution has provided a summary of facts which is set out below. 3 4

¶ [8] On Sunday 19th November 2023, at about 8:30 p.m., the defendant entered the 4-Way 24- 5 Hour Convenience Store at #8 Town Hall Road, West Bay. He was wearing particular 6 clothing and an animal mask to cover his face. He went to the cashier counter where the 7 cashier was attending to a female “customer” who is alleged to be part of the conspiracy 8 to rob the store. When the cashier opened the cash register, the defendant went behind 9 the cashier who at first pushed him away. The defendant then started taking cash from 10 the register and the cashier pushed the defendant in an attempt to stop him. The defendant 11 pushed the cashier and removed the cash register along with the computer tablet which 12 was attached. 13 14

¶ [9] He went to the door of the establishment, but it was closed. He used the cash register to 15 try to break the glass of the door in his effort to leave. The glass was shattered. In doing 16 this, the mask fell off the defendant’s face and was later retrieved from the floor by the 17 Police. Eventually the door was opened by the cashier and the defendant left the store. 18 19

¶ [10] Cash amounting to $479.00 was stolen along with the cash register which is valued at 20 $150.00. The tablet computer which was taken is valued at $400.00. The total value of 21 cash and items stolen by the defendant is $1,049.00. 22 23

¶ [11] Closed Circuit Television (“CCTV”) footage from the store recorded the incident. 24 25

¶ [12] The mask which was retrieved was found to have DNA material from which the 26 defendant could not be excluded to a calculation ratio of 2.4 septillion times more likely 27 if it originated from him than if it originated from an unknown person unrelated to him. 28 29 30 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 4 of 8

¶ [13] Later that night at about 11:00 p.m., the defendant was seen in a vehicle at Fort Street in 1 George Town. He was held by police officers and identified as being the same male in 2 the CCTV footage of the robbery of the Store. 3 4

¶ [14] On the 20th November 2023, the defendant was interviewed in the presence of his 5 attorney and exercised his legal right not to answer questions put to him. 6 7 VICTIM IMPACT REPORT 8 9

¶ [15] The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact 10 Report (“VIR”) dated 26th March 2024. 11 12

¶ [16] The cashier is described by the manager of the store as having been traumatised and as 13 having resigned his post shortly after the incident. The manager also reports that there 14 was stress caused from the need to secure alternative coverage for the store and that there 15 was nervousness on the part of herself and her staff because of their concern that they 16 would be revictimised. The manager also states that this is the seventh occasion on which 17 the store has been robbed and that there is frustration at the repeat robberies. 18 Compensation of $1,029.00 and for the damage to the store of $705.30 is being sought. 19 20

¶ [17] In his statement dated 21st November 2023, the cashier indicated that he was traumatised 21 as a result of the incident and had to seek medical attention the day following. His blood 22 pressure was at a high level. He was prescribed medication which appears to be used to 23 treat anxiety. He was also given a referral to have a psychological assessment conducted. 24 25 ANTECEDENT HISTORY 26 27

¶ [18] The defendant has convictions for traffic offences only. He has no previous convictions 28 for an offence of a similar nature. 29 30 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 5 of 8 SOCIAL INQUIRY REPORT 1 2

¶ [19] The DCR has provided a Social Inquiry Report dated 12th March 2024 (“SIR”) in respect 3 of the defendant. The Court has read this report in its entirety and takes into account 4 everything said therein in his favour. 5 6

¶ [20] The defendant is 23 years old. He has one child, aged 3 years old who is resident in 7 Jamaica who he supports financially. He is a Jamaican national who was employed here 8 since 2019 on a work permit to work in his aunt’s Janitorial service. His father was 9 employed here in the construction industry but is now back in Jamaica for a period of 10 one year. 11 12

¶ [21] The defendant completed his schooling in Jamaica to high school level without 13 difficulties. He reports using ganja since leaving high school and more recently since 14 2020 he has been using ecstasy (MDMA), at least two pills per day. He says that on the 15 day of the offence he had taken three pills and believes that he is addicted to the 16 substance. He also states that he had been drinking heavily all of that day into the evening 17 and knows that he was very intoxicated. 18 19

¶ [22] The defendant reports that since being on remand, he has been employed as a cleaner and 20 is productively occupied in the Prison. He also reports that he has received one 21 adjudication for collecting something thrown over a wall at the Prison. 22 23

¶ [23] The defendant expressed empathy for the victim and stated that he takes responsibility 24 for his actions. 25 26

¶ [24] He was assessed as being at low risk of re-offending with the only factor in the high 27 category being alcohol/drug problem. 28 29

¶ [25] The Probation Officer describes the defendant as remorseful and the offence as being out 30 of character for him. 31 32 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 6 of 8 THE SUBMISSIONS 1 2

¶ [26] Both Counsel referred the Court to the Cayman Islands Sentencing Guidelines for the 3 offence of Robbery. 4 5

¶ [27] Counsel for the prosecution submits that the offending is Lesser Culpability because 6 minimal force was used against the victim. No weapon was produced, and it appears that 7 there was little planning involved. Defence Counsel agrees with the classification of 8 culpability. 9 10

¶ [28] The Harm is submitted by the prosecution to be Category 2 because there is some 11 psychological harm caused to the victim above the level inherent in the offence and the 12 value of the goods taken is said to be at medium level. Defence Counsel disagrees and 13 submits that the harm is no more than is inherent in the offence of robbery. 14 15

¶ [29] This Court has considered the VIR and the statement of the victim in particular. The 16 victim was affected to the point that he resigned his job shortly thereafter and needed 17 psychological assessment and treatment for anxiety. The Court also notes the impact or 18 effect on the small business as described by the manager. The submission that the Harm 19 is at the level of Category 2 is accepted. 20 21 THE SENTENCE 22 23

¶ [30] This was a robbery of a small shop in the evening at 8:30 p.m. The defendant was masked. 24 The entire cash register was taken as well as the cash within it. Property in the business 25 was damaged, namely the door which was shattered. The offending is serious, and the 26 Court is of the view that the custody threshold is firmly passed. 27 28

¶ [31] The starting point for a Category 2 offence is 3 years (36 months) custody with a range 29 of sentence of 2 to 5 years. 30 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 7 of 8 1

¶ [32] It is noted and accepted that alcohol and drugs had been taken by the defendant in large 2 quantities on the day of the offending. Being under the influence of alcohol or drugs at 3 the time of the commission of the offence is an aggravating factor which serves to 4 increase the sentence by 3 months for a sentence of 39 months. 5 6

¶ [33] In mitigation the Court takes into account everything said and written in favour of the 7 defendant in the SIR and by his Counsel. He is 23 years old, still relatively young. He 8 has no previous convictions of a similar nature, and the Probation Officer notes that this 9 offending is out of character for him. He is genuinely remorseful and expressed 10 significant empathy towards the victim. He is productively employed while in the Prison 11 and is at low risk of re-offending. The Court accepts that this offending as explained to 12 the Probation Officer was on impulse and without significant planning. His Counsel 13 submitted also that this is the lowest level of robbery, that custody for him will mean 14 continued separation from his family and likely he will not be granted any further permit 15 to work in the Cayman Islands. The impact upon him is also taken into account as urged 16 by his Counsel. All these mitigating factors taken together serve to reduce his sentence 17 by 12 months to 27 months imprisonment. 18 19

¶ [34] The defendant is given the full one third discount for his guilty plea of 9 months, thus 20 further reducing his sentence to one of 18 months imprisonment. The Court considers 21 that the sentence is proportionate to the offending given the serious nature of it. Any time 22 served is to be taken into account and deducted from this sentence. 23 24

¶ [35] No separate penalty is imposed on Count 2, the offence of Conspiracy to Commit 25 Robbery. 26 27

¶ [36] The manager of the store has asked for compensation of $1,029.00 for the value of items 28 taken and for the damage to the store of $705.30. However there is no evidence that the 29 defendant has the ability to pay. The SIR records that he lost his gainful occupation once 30 he was arrested for this offence. In line with legal principles no order for compensation 31 240627 R v Okia Rainel Porter: Ind. 102 & 103 of 2023. Coram Richards J, KC - Sentence Judgment Page 8 of 8 is made. The defendant faces a sentence of custody. He will not be able to work. The 1 authorities are clear. A criminal Court should not order compensation where there is no 2 means to pay. See the case of R v York1. 3 4 Dated this the 27th June 2024 5 6 The Hon. Justice Cheryll Richards KC 7 Judge of the Grand Court 8 1 [2019] 1 Cr App R (S) 41