Field JA, Goldring P, Moses JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
ON APPEAL FROM THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL DIVISION
CICA (Crim) Appeal 011/2022
IND#0012/2021
SC#00420/2021
BETWEEN:
KASNIQUE PATRICE AUSTIN-CUPID
APPELLANT
-and-
HIS MAJESTY THE KING
RESPONDENT
Before:
The Rt Hon Sir John Goldring, President
The Hon Sir Richard Field, Justice of Appeal
The Rt Hon Sir Alan Moses, Justice of Appeal
Appearances:
Mr. Jonathan Hughes of Sampson Law for the Appellant
Mr. Orrett Brown for the ODPP for the Respondent
Date of Hearing:
10 November 2023
JUDGMENT
Transcript of oral judgment dated 10 November 2023
Approved for Release 17 January 2024
MOSES, JA:
1.
This is an application for permission to appeal from a sentence passed by Her Honour
Justice McDonald‑Bishop on the 17th of June 2022, of ten years and six months in
respect of a robbery to which this Applicant ‑‑ pleaded not guilty following a judge alone
trial on the 25th of February, 2022. The sentence of ten‑and‑a‑half years was in respect
of the robbery that the judge found, in effect, this Applicant had master minded in
premises in which she had been working; a liquor store at the Tortuga Rum Company in
George Town. The robbery was committed by two men, one of whom remains
unidentified, the other was a man called Nash who was also convicted.
2.
The judge found that as a result of this Applicant's knowledge of the store; the existence
of the cash registers and the fact that the daily sales were secured in a safe, was known to
this Applicant and led to her recruiting at least one of the robbers, the man Nash, while
she waited outside in the getaway car. At 8:50 in the evening the 7th of February, the
man she recruited and the other unidentified robber, entered the store with masks,
long‑sleeved clothing and gloves and of particular significance, wielding knives for the
purposes of threatening this Applicant's former colleagues as they worked in the store.
They got away with cash and the money from the daily sales secured in the safe; but
during the course of the robbery, the defendant Nash carried out a particularly serious
assault on one of the employees, Ms. Andrade, who had tried to escape. He attacked her
after the other robber placed her on the ground.
3.
The judge found as to the part played by this Applicant, that she had a leading role in the
planning and execution of the offence. She was there, as she put it, from the inception
and, it would not be unfair to describe her as the mastermind, given her knowledge of the
layout and operations in the store. She knew that there was going to be a threat of
violence in order to carry out the robbery. She knew the robbers had knives and had the
intention that they should be used in the robbery. Although the attack on the member of
staff, Ms. Andrade, went further than she might have foreseen, this was reflected by the
fact that the judge sentenced Nash to a higher sentence. This was, we observe, just the
sort of consequence that ought to be in the contemplation foreseen by those who plan a
robbery with knives of the sort that took place here.
4.
The judge, in sentencing her to ten‑and‑a‑half years, found that the culpability ‑ and harm
was such as to justify the sentence being ‑‑ falling within A2 of the Robbery, Commercial
Premises Guidelines; in other words, with a starting point between seven and fourteen
years. There was substantial mitigation as the judge recognised in this case. She was a
lady of good character. She had 3 children, one of whom was a 9‑year‑old boy with
special needs and therefore the impact of the substantial sentence is going to be
particularly severe. However, as the judge observed, the aggravating feature of the fact
that this was a breach of trust in which, knowingly, this Applicant was prepared to let her
fellow workers and colleagues suffer the fear that an attack at night with knives was
bound to cause, and justifies a substantial sentence. The submissions advanced that the
Applicant should have been distinguished from the co‑defendant Nash, seems to us
unarguable in light of the fact that Nash was sentenced to a higher term of twelve years.
5.
The judge, conducted the trial, and it was perfectly open to her to reach the conclusion as
to culpability, which we have identified. The personal mitigation was taken into
account. We can see nothing excessive, let alone manifestly excessive in the total
sentence of ten‑and‑a‑half years and in those circumstances we refuse leave.