R v Courtney Alphonso Levy - Sentence Judgment

¶ 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 1 of 6 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 15 OF 2023 4 5 6 7 8 THE KING 9 10 V. 11 12 COURTNEY ALPHONSO LEVY 13 14 15 Appearances: Mr. Scott Wainwright for the Prosecution 16 Mr. Keith Myers for the Defendant 17 18 Before: The Hon. Justice Roger Chapple (Actg.) 19 Submissions Heard: 4th December 2023 20 21 Sentence Judgment: 18th December 2023 22 23 24 25 26 HEADNOTE 27 28 29 Criminal Law - Doing an act to obstruct, prevent, pervert or defeat justice – s.107(d) of the Penal 30 Code - Breach of trust by a public officer – s.118 of the Penal Code – Sentence of police officer 31 following trial by judge alone. 32 33 34 35 36 37 38 39 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 2 of 6 SENTENCE JUDGMENT 1 2 Introduction: 3 4

¶ [1] In July 2023, following a trial by judge alone, the defendant was convicted of two offences 5 as follows: 6 7 (i) Doing an act to obstruct, prevent, pervert or defeat justice, contrary to s107(d) of the 8 Penal Code (2019 Revision). 9 10 (ii) Breach of trust by a public officer, contrary to s118 of the Penal Code (2019 Revision). 11 12

¶ [2] The trial commenced on 8th June 2023 and lasted several days. On 19th July, having delivered 13 my detailed verdict judgment, I adjourned sentencing in order for a Social Inquiry Report and 14 written sentencing submissions to be prepared. I now have the advantage of a detailed Social 15 Inquiry Report prepared by Ms Kafizas, a Probation Officer, and written sentencing 16 submissions from both Mr Wainwright, for the prosecution and Mr Myers, for the defence. I 17 heard oral submissions from both Mr Wainwright and Mr Myers on 4th December and have 18 taken time to reflect upon those submissions (both written and oral) and everything placed 19 before me, in order to arrive at what I consider to be the appropriate sentence in this troubling 20 and highly unusual case. 21 22 The facts: 23 24

¶ [3] I dealt at length in the course of my verdict judgement with the evidence and circumstances 25 of this case when explaining my findings and conclusions. I respectfully refer those who may 26 later consider this sentence judgement to my earlier verdict judgement. A short summary of 27 the facts, as I found them, will suffice for present purposes. 28 29

¶ [4] The defendant served as an auxiliary constable with the Royal Cayman Islands, Police 30 Service for 13 years, from 2009 until his dismissal in 2022, as a result of his arrest in 31 connection with these offences. In the course of his police career, he served in various 32 locations and capacities. In 2019, he was based at the Fairbanks Police Detention Centre. On 33 13th November 2019, Roger Deward Bush was booked into the detention centre, having been 34 arrested on suspicion of murder. On 16th November, Mr Bush’s long-term partner, Ms 35 Nikkieta Ebanks was arrested on suspicion of having been concerned in that murder and she 36 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 3 of 6 too was brought to the detention centre where she remained until the next day. The defendant 1 was on duty at the detention centre on both 16th and 17th November; his duties included 2 looking after detainees and escorting them from their cells for “smoke/stress breaks.” Prior 3 to being interviewed by the police on 17th November, Ms Ebanks was taken by the defendant 4 and another officer for one such break. As the defendant was placing her back in her cell and 5 in the absence of his fellow officer, he said to her words to the effect: “the boss man (by 6 which the defendant meant, and Ms Ebanks understood him to mean Roger Bush) says to 7 hold it down”, explaining and emphasising Mr Bush’s instruction that Ms Ebanks was not to 8 talk to the police, that she was to say “no comment” to everything in the forthcoming 9 interview. In doing so, the defendant was acting as Roger Bush’s messenger. 10 11

¶ [5] At her subsequent interview Ms Ebanks did indeed make no comment to all questions asked 12 of her. She was released from the detention centre later the same day. She maintained her 13 silence for a period of about nine months, until August 2020, when she contacted a police 14 officer, indicating that she was prepared to make a statement and to assist in the prosecution, 15 for murder, of Roger Bush, provided all measures were taken for her safety. She became and 16 remains a protected witness. 17 18

¶ [6] I am satisfied that there was further contact between the defendant and Ms Ebanks in 19 December 2019 (the liquor store incident) and in November 2020 (the Facebook friend 20 requests) but these incidents have not, by themselves, affected the sentence I will in due 21 course be imposing. Nevertheless, they do, it seems to me, demonstrate (as does particularly 22 the telephone evidence), that the defendant was Roger Bush’s willing messenger, lieutenant 23 and police connection. 24 25 Sentencing guidelines: 26 27

¶ [7] There are no Cayman Islands sentencing guidelines for either of the offences, for which I 28 must sentence the defendant. I was not directed to any previous Cayman sentencing decision 29 for such offences, neither am I aware of any local authority. I do have the advantage of the 30 recent England and Wales Sentencing Council Guidelines for offences of perverting the 31 course of justice. These came into force, in England and Wales, in October 2023. I have found 32 these guidelines to be of considerable assistance in this difficult case, although I of course 33 recognise that they are persuasive value only. As with all sentencing exercises, I am required 34 to assess both culpability and harm. I bear in mind that the maximum sentence for perverting 35 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 4 of 6 the course of justice in this jurisdiction is seven years imprisonment, whereas in England and 1 Wales, it being a common law offence, the maximum sentence is life imprisonment. 2 3

¶ [8] Mr Wainwright submits – and Mr Myers sensibly, concedes – that this is a case of high 4 culpability, within the meaning of the guidelines. It plainly falls within that most serious 5 category, because firstly, “underlying offence very serious” – it could hardly have been more 6 serious. Roger Bush was eventually charged and convicted of shooting dead his son. 7 Secondly this was a gross “breach of trust” and “abuse of position or office.” This was an 8 egregious abuse of the position in which the defendant had been placed and a grave breach 9 or the trust placed in him. The public has the right to expect the highest standards of honesty 10 and integrity from Royal Cayman Islands Police Officers. It bears repeating that this 11 defendant was the willing messenger for a well-known and accomplished criminal (“the god 12 of West Bay”). 13 14

¶ [9] Mr Wainwright further submits that this is a case of category 1 harm, again within the 15 meaning of the guidelines, since the defendant’s actions caused substantial delay in bringing 16 Roger Bush to justice. The intention, shared between Roger Bush and the defendant was, to 17 use a hackneyed but entirely apt expression, that Mr Bush should get away with murder. Mr 18 Myers submits that this case falls more appropriately within category two, in that, albeit there 19 was some delay and/or impact upon the course of justice, it cannot properly or reasonably be 20 described as substantial. Ms Ebanks did contact the police, made a statement and gave 21 evidence for the prosecution. Justice was in the end done. Roger Bush was convicted of 22 murder in June 2022. The delay was only 8 months, which, sadly, is a relatively brief period 23 when viewed against the substantial delays inherent in the criminal justice system. 24 25

¶ [10] I am satisfied that this is a category 1 case, for the reasons urged by Mr Wainwright, although 26 one can readily imagine cases of more serious delay, or cases where the object of the exercise 27 – the miscarriage of justice – is achieved. I then place this case at the lower end of category 28

¶ [1] But for the reasons I have already mentioned this is a case of very high culpability. This 29 is then a category 1A offence within the meaning of the guidelines. The sentencing range for 30 that category is 2 – 7 years’ imprisonment, with a suggested starting point of 4 years’ 31 imprisonment. 32 33

¶ [11] I have considered the matters set out under the heading “factors increasing seriousness.” Mr 34 Myers submitted none of those factors were present in this case. I disagree since Ms Ebanks 35 was plainly a vulnerable victim. She had been arrested on suspicion of involvement in 36 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 5 of 6 murder, spent the night at the detention centre and was soon to be interviewed when the 1 defendant acted as he did. The defendant, rather than serving the interests of justice was, with 2 Roger Bush, applying pressure to her to persuade her not to assist in a murder investigation. 3 4

¶ [12] I should note here that Mr Myers has provided two England and Wales Court of Appeal cases 5 (R -v- Shahbib Asan [2019] EWCA Crim 896 and R -v- Jones [2008] EWCA Crim 348). Mr 6 Myers confirmed that he placed no reliance on either case; he had provided them simply as 7 “background.” I have read both cases. Neither is of any real assistance save for the 8 observations made in Asan (a very much more serious case than the instant case) that 9 deterrence is often an important element in sentencing such cases and the importance of 10 offering “so far as the court can, a measure of support to witnesses who, despite many fears, 11 are prepared to step forward and assist with the administration of justice.” 12 13 Ms Ebanks’ victim impact statement: 14 15

¶ [13] I note all that Ms Ebanks says in her undated but I assume recent witness statement. Mr Myers 16 properly urges me not to lay all the blame for the position in which she finds herself at the 17 defendant’s door. Whilst I do not doubt the depth of Ms Ebanks feelings, I must do the best 18 I can to apportion responsibility between Roger Bush and this defendant for her plight, 19 although I readily concede this is an invidious task. The giving of evidence against her violent 20 and criminally well-connected long-term partner for the cold-blooded shooting of his son is 21 likely to have had a far greater impact upon Ms Ebanks than the contribution to her present 22 unenviable position made by the defendant’s actions. That said, I can readily understand and 23 appreciate that this defendant’s actions have “eroded all my trust in authority figures, 24 especially the police. I do not know who in authority to trust….” 25 26 Mitigation: 27 28

¶ [14] I take account of the defendant’s hitherto good character – not only in the sense of his absence 29 of convictions, but I also bear in mind what those who know him well have said about him. 30 I have considered the three character references annexed to the social inquiry report, and what 31 the defendant’s wife and pastor Thompson said about the defendant to the author of the report. 32 The consequences of these convictions for the defendant, and for his family are, I fully 33 recognise, little short of catastrophic. He has lost his good name, his employment and his 34 income. An immediate custodial sentence will have considerable repercussions for his 35 family. Save for those matters, there is little I can find by way of mitigation in this case. 36 231218 R v Courtney Alphonso Levy: Ind. 15 of 2023. Coram: Chapple J Actg. – Sentence Judgment Page 6 of 6 Conclusions: 1 2

¶ [15] I have considered carefully all that is said in the social inquiry report, but I cannot follow its 3 recommendation that I should suspend the inevitable sentence of imprisonment that it is my 4 duty to impose. As in any case, there are several aims and objects of sentencing. In a case 5 such as this, involving as it does an attempt to turn justice from its proper course, one of those 6 aims (and I think the paramount aim) is to send a firm deterrent message to all that the 7 consequences of so doing are severe, particularly so when it is a serving police officer using 8 his position to assist someone suspected of serious crime from being brought to justice. 9 10

¶ [16] Despite the consequences for this defendant I am in no doubt that my duty requires me to 11 impose a substantial sentence of imprisonment in order properly to mark the gravity of these 12 offences. The sentence upon count 1 is one of 4 years’ imprisonment. 13 14

¶ [17] As I indicated in the verdict judgment and again in the course of the recent hearing, the fact 15 that the defendant was a public officer and acted in breach of trust is an aggravating feature 16 that I have taken into account when arriving at the sentence on count 1. Accordingly, a 17 concurrent sentence upon count 2 is appropriate. The sentence on count 2 in one of two years’ 18 imprisonment, to run concurrently with the sentence imposed upon count 1. 19 20 Dated this the 18th day of December 2023 21 22 The Hon. Justice Roger Chapple 23 Acting Judge of the Grand Court 24