Carter J
```html <table> <tr> <td>JUDGMENT EMBARGOED FROM PUBLICATION UNTIL FURTHER ORDER</td> </tr> <tr> <td>1</td> </tr> <tr> <td>2</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> </tr> </table> <h2>IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE</h2> <p>INDICTMENT NO: 102 of 2022</p> <h2>HIS MAJESTY THE KING</h2> <p>-V-</p> <h2>ALVIN SHAQUILLE EBANKS</h2> <p>Appearances:</p> <p>Mr. Scott Wainwright for Crown</p> <p>Mr. Keith Myers for the Defendant</p> <p>Defendant (via Zoom link)</p> <p>Before:</p> <p>Hon. Justice Marlene I. Carter (Actg.)</p> <p>Date of Conviction:</p> <p>17 March 2023</p> <p>Date of Sentence:</p> <p>31 May 2023</p> <h2>HEADNOTE</h2> <p>Criminal Law-Sentence-Robbery-Possession of Imitation Firearm-Concurrent sentence</p> <p>Facts</p> <p>SENTENCE JUDGMENT</p> <p>1. On the 17th of March 2023, following a trial in the Grand Court, this defendant was convicted of two offences:</p> <p>230531 R v Ebanks (Alvin Shaquille) IND 102/22 - Sentence Judgment (Carter JA)</p> <p>Page 1 of 6</p> ```
```markdown # JUDGMENT EMBARGOED FROM PUBLICATION UNTIL FURTHER ORDER
(i) Robbery, contrary to section 242 of the Penal Code (2022 Revision).
(ii) Possession of an imitation firearm with intent to commit an offence, namely robbery, contrary to section 18(6) of the Firearms Law (2008 Revision).
The jury accepted that two robbers went to the Hell Gas Station on the 5th of December 2022. One of the robbers remained in the getaway vehicle while the other entered the Gas Station. The defendant was found to be the robber who entered the Gas Station and demanded cash from the cashier. During the robbery the defendant was masked and in possession of an imitation firearm. During the robbery the defendant assaulted the cashier. The cashier was struck several times with the imitation firearm resulting in minor injuries to his ear and knuckles.
The defendant was identified by DNA and other evidence as being the robber. ## The offence: Commercial Robbery
Counsel for the prosecution submits that for the purposes of the Cayman Islands Sentencing Guidelines as they relate to commercial robbery, this is an offence which falls into Category A2. The prosecution submits that Culpability is at Category A based on the production and use of a weapon to threaten and inflict violence.
It is further submitted that Harm is at category 2 since there was some physical harm inflicted on the victim above the level of harm inherent in this offence.
Category A2 offences of robbery have a starting point of nine years custody with a sentencing range of seven to fourteen years custody. Counsel for the defendant agrees with the categorisation suggested by the prosecution.
The prosecution submit that the following are additional aggravating features: i) Attempts to destroy/dispose of evidence – the vehicle used in robbery was burnt out, and items of clothing for the weapon were nothing worn during the robbery were disposed of in a nearby clothing. ii) Attempts were made to disguise/conceal identity – both assailants were wearing balaclavas/face coverings during the robbery. 230531 R v Ebanks (Alvin Shaquille) IND 102/22 - Sentence Judgment (Carter JA) Page 2 of 6 ```
```html <table> <tr> <td>1</td> <td>2</td> <td>iii)</td> <td>This defendant played a leading role in a group activity the prosecution contend that the two robbers constitute a small group, that this was not an offence committed by one offender acting alone. The defendant entered the Gas Station and robbed the cashier whilst his accomplice was merely a lookout/getaway driver.</td> </tr> <tr> <td>6</td> <td>7</td> <td>8.</td> <td>Regarding the aggravating factors suggested above, Counsel for the defendant submitted that the court should not find that the defendant played a leading role in a group activity, that the evidence presented at trial did not support this submission and further that while the vehicle used in the robbery was found burnt out there was no direct evidence of the defendant's involvement in the attempted destruction of the vehicle. I am satisfied that the evidence presented at trial does support the defendant having played a leading role in the robbery and while there is no direct evidence of the defendant having attempted to destroy the getaway vehicle, this was clearly an attempt to destroy evidence associated with the robbery.</td> </tr> <tr> <td>15</td> <td>16</td> <td>9.</td> <td>The defendant committed the offences for which he has been found guilty during the currency of a suspended sentence. The defendant was sentenced in September 2021 for 3 counts of Assault Occasioning Actual Bodily Harm and received a sentence of 10 months' imprisonment, suspended for 2 years, 3 months of which was to be served immediately. There remained an unexpired 9 months of the suspended period when the instant offence was committed. I consider this breach of the suspended sentence order an aggravating factor in this case.</td> </tr> <tr> <td>22</td> <td>23</td> <td>10.</td> <td>The defendant's previous conviction record is another relevant aggravating factor. The Defendant has 19 previous convictions. Significantly, he received a sentence of 2 years and 8 months imprisonment for robbery in June 2015 and has convictions for similar offences involving deprivation of property including theft, burglary, and 4 convictions for handling stolen goods.</td> </tr> <tr> <td>27</td> <td>28</td> <td>11.</td> <td>No mitigating factors have been advanced for the court's consideration.</td> </tr> <tr> <td>30</td> <td>nce: Possession fireato commit an</td> <td>31</td> <td>32</td> <td>ection 18(6)ms Law, 201</td> <td>230531 R v Ebanks (Alvin Shaquille) IND 102/22 - Sentence Judgment (Carter JA)</td> </tr> <tr> <td>33</td> <td>34</td> <td>35</td> <td>Page 3 of 6</td> </tr> </table> ```
```html <table> <tr> <td>13.</td> <td>There are no sentencing guidelines in the Cayman Islands for this particular offence. There are few</td> </tr> <tr> <td>cases in which an imitation firearm has been used to commit burglary or robbery.</td> </tr> <tr> <td>14.</td> <td>It has been the practice in this jurisdiction to draw a distinction between a defendant found guilty</td> </tr> <tr> <td>of the possession of a firearm and the possession of an imitation firearm. Consequently, although</td> </tr> <tr> <td>Section 39 of the Firearms Law prescribes a mandatory minimum sentence for possession of a</td> </tr> <tr> <td>firearm which applies equally to offences involving an imitation firearm, the approach in this</td> </tr> <tr> <td>jurisdiction has been to apply a sentence below the mandatory minimum in relation to offences</td> </tr> <tr> <td>involving imitation firearms based on the nature of the firearm involved.</td> </tr> <tr> <td>15.</td> <td>Counsel for the Crown agreed with the court that the tariff may be between 3-5 years for this</td> </tr> <tr> <td>offence. Counsel submitted that as the conduct in Count Two is an integral part of the conduct on</td> </tr> <tr> <td>Count One, the sentence on Count Two may be ordered to run concurrently to the sentence on</td> </tr> <tr> <td>Count One.</td> </tr> <tr> <td>16.</td> <td>The court has considered the case of Avis1 in seeking to arrive at the appropriate sentence. Applying</td> </tr> <tr> <td>the approach in that case: the offence relates to an imitation firearm. The firearm was brandished</td> </tr> <tr> <td>during the robbery and was used to intimidate and to injure. The defendant played a leading role</td> </tr> <tr> <td>in the robbery. He entered the gas station and demanded the cash while armed with the imitation</td> </tr> <tr> <td>firearm. The defendant has a previous conviction for robbery.</td> </tr> <tr> <td>The Social Inquiry Report</td> </tr> <tr> <td>17.</td> <td>On the date of conviction, the court ordered that a Social Inquiry Report (SIR) be prepared in</td> </tr> <tr> <td>respect of the defendant to aid the sentencing exercise. The probation office has reported that on</td> </tr> <tr> <td>25th April 2023 the defendant declined to engage with the SIR process. The defendant gave no</td> </tr> <tr> <td>specific reason for his refusal to engage other than not wanting to. He indicated that he would like</td> </tr> <tr> <td>the court to have sight of an SIR prepared in a previous case. This report is dated 1st February 2021.</td> </tr> <tr> <td>or non-com] the court s't is well within its discretion to ignore any</td> </tr> <tr> <td>report regardant. Howm its disc</td> </tr> <tr> <td>31 omething of it's background had sigbrua</td> </tr> <tr> <td>ring the defeever, I h</td> </tr> <tr> <td>32</td> </tr> </table> <sup>1</sup> [1998] 1 Cr.App.R. 420, CA 230531 R v Ebanks (Alvin Shaquille) IND 102/22 - Sentence Judgment (Carter JA) Page 4 of 6 ```
```html <table> <tr> <td>JUDGMENT EMBARGOED FROM PUBLICATION UNTIL FURTHER ORDER</td> </tr> <tr> <td>1</td> </tr> <tr> <td>18.</td> <td>The report noted that the defendant was adopted at birth. He was raised with his adoptive parents’</td> </tr> <tr> <td>3</td> <td>five biological children, until the age of fourteen. Although he was raised by his foster parents, his</td> </tr> <tr> <td>4</td> <td>biological mother was integral in his life. The defendant is himself the father of two children.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>19.</td> <td>The defendant attended Cayman Academy and the John Gray High School, leaving the latter in</td> </tr> <tr> <td>7</td> <td>year 9 as he was expelled for fighting. That was the extent of his formal education.</td> </tr> <tr> <td>8</td> </tr> <tr> <td>20.</td> <td>At the time of the report in February 2021, the defendant was assessed using the LS/CMI Risk/Need</td> </tr> <tr> <td>10</td> <td>Assessment Tool. His overall risk of re-offending was assessed as “Very High” due</td> </tr> <tr> <td>11</td> <td>to criminogenic factors: Companions; Criminal History, Educational/Employment, Pro-Criminal</td> </tr> <tr> <td>12</td> <td>Attitude/Orientation; Anti-Social Pattern.</td> </tr> <tr> <td>13</td> </tr> <tr> <td>21.</td> <td>The defendant’s refusal to participate in the preparation of a Social Inquiry Report deprives the</td> </tr> <tr> <td>15</td> <td>court of any consideration of his present attitude towards these offences. It may be that such may</td> </tr> <tr> <td>16</td> <td>be implied or inferred from the defendant’s refusal to engage with the process. However, I make</td> </tr> <tr> <td>17</td> <td>no such inference.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>The Victim Impact Report</td> </tr> <tr> <td>20.</td> <td>A Victim Impact Report (VIR) was also before the court. The cashier at the Hell Gas Station was</td> </tr> <tr> <td>21</td> <td>interviewed. He expressed a lack of interest in participating in a fulsome VIR. He stated that he</td> </tr> <tr> <td>22</td> <td>has “put everything behind him” and did not want to go through having to recall the events that</td> </tr> <tr> <td>23</td> <td>transpired during the offence or the impact those events had on him. The victim was probed as to</td> </tr> <tr> <td>24</td> <td>whether the offence influenced his decision to resign from that employment. He stated that it did</td> </tr> <tr> <td>25</td> <td>not.</td> </tr> <tr> <td>26</td> <td>The sentence of the court</td> </tr> <tr> <td>27.</td> <td>22. Based on the foregoing, the sentence of the court is as follows. For the offence of robbery, adopting</td> </tr> <tr> <td>28</td> <td>a starting point of 9 years custody the starting point will be increased to 12 years custody to take</td> </tr> <tr> <td>29</td> <td>into account the factors as well as the</td> </tr> <tr> <td>30</td> <td>the principle of totality.</td> </tr> <tr> <td>31</td> <td>ine aggravation outlined above regarding</td> </tr> <tr> <td>32</td> <td>23. Counsel for the defendant urged the court to consider that there is only a presumption of activation</td> </tr> <tr> <td>33</td> <td>of a suspended sentence order. He submitted that the court should not activate the remaining portion</td> </tr> </table> 230531 R v Ebanks (Alvin Shaquille) IND 102/22 - Sentence Judgment (Carter JA) Page 5 of 6 ```
```html <table> <tr> <td>JUDGMENT EMBARGOED FROM PUBLICATION UNTIL FURTHER ORDER</td> </tr> <tr> <td>of the suspended sentence where the defendant had not committed any further offence</td> </tr> <tr> <td>approximately one year and three months into the period of suspension. The defendant was subject</td> </tr> <tr> <td>to a further 9 months of the suspended period when the instant offence was committed. He</td> </tr> <tr> <td>submitted that the court should have in mind the principle of totality in determining whether in all</td> </tr> <tr> <td>the circumstances the suspended sentence should be activated in this case.</td> </tr> <tr> <td>24.</td> </tr> <tr> <td>I make no order to activate the term of 7 months which is the remaining term of the suspended</td> </tr> <tr> <td>sentence, albeit that this court would have been entitled, in its discretion, to do so and to order such</td> </tr> <tr> <td>sentence run consecutive to the sentences for the instant offences. Instead, as outlined above, the</td> </tr> <tr> <td>fact of the instant offences being committed during the currency of the suspended sentence is</td> </tr> <tr> <td>instead considered a significant aggravating factor on sentence.</td> </tr> <tr> <td>25.</td> </tr> <tr> <td>For the offence of possession of an imitation firearm with intent to commit an offence, I take as my</td> </tr> <tr> <td>starting point a sentence of 3 1/2 years imprisonment. I consider the aggravating factors as outlined</td> </tr> <tr> <td>above. I find that the appropriate sentence is 4 years imprisonment. This sentence will run</td> </tr> <tr> <td>concurrent to the sentence for robbery it being, as the Crown submits, “an integral part of the</td> </tr> <tr> <td>conduct” for that offence.</td> </tr> <tr> <td>26.</td> </tr> <tr> <td>The sentence of the court is therefore as follows:</td> </tr> <tr> <td>Count 1：Robbery</td> </tr> <tr> <td>12 years imprisonment</td> </tr> <tr> <td>Count 2：Possession of an imitation firearm with intent to commit an offence, namely robbery.</td> </tr> <tr> <td>4 years imprisonment concurrent to the sentence on count 1.</td> </tr> <tr> <td>Time in custody to be deducted.</td> </tr> <tr> <td>Justice Marlene I. Carter</td> </tr> <tr> <td>the Grand</td> </tr> <tr> <td>Judge of Court (Actg</td> </tr> </table>