R v Tyree Jaden Welcome - Sentence Judgment

¶ 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 1 of 19 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NOs: 60 and 74 of 2021 4 5 6 7 8 THE QUEEN 9 10 V. 11 12 TYREE JADEN WELCOME 13 14 15 Appearances: Mr. Kenneth Ferguson, of the Office of the Director of Public 16 Prosecutions for the Prosecution 17 Ms. Lee Halliday-Davis of Brady Attorneys-at-Law for the Defence 18 19 Before: The Hon. Justice Cheryll Richards QC 20 Submissions Heard: 4th August 2022 21 22 Sentence Judgment: 26th August 2022 23 24 25 HEADNOTE 26 Criminal Law – Sentencing, Robbery contrary to s.242 of the Penal Code (2019 Revision), 27 Possession of an Imitation Firearm with Intent to Resist Arrest contrary to s.18 (6) of the 28 Firearms Act (2008 Revision), Application of the Cayman Islands Sentencing Guidelines for 29 Robbery, United Kingdom Sentencing Council Guidelines on firearm offences. 30 31 32 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 2 of 19 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing in respect of two Indictments and two 3 scheduled offences. On the 30th March 2022 he was convicted after trial by jury on 4 Indictment 60 of 2021 of a single count of Robbery contrary to s.242 (1) of the Penal 5 Code (2019 Revision). The particulars of the amended Indictment are that he together 6 with persons unknown, on the 14th day of September 2021 at McKays Store, Walton 7 Plaza, 48 Eastern Avenue, George Town, Grand Cayman, Cayman Islands stole between 8 $1200.00 and $1500.00 belonging to Michael Ebanks and immediately before or at the 9 time of doing so, and in order to do so put Michael Ebanks in fear of being then and 10 there subjected to force. The maximum penalty for this offence is life imprisonment. 11 12

¶ [2] In respect of Indictment 74 of 2021, the defendant is to be sentenced for the offence of 13 Possession of an Imitation Firearm with Intent to Resist Arrest contrary to s.18(6) of the 14 Firearms Act (2008 Revision). The particulars of the offence are that he on the 27th day 15 of July 2021, in the vicinity of Eastern Avenue. George Town, Grand Cayman, Cayman 16 Islands, had in his possession an imitation firearm with intent to resist arrest. The 17 maximum sentence for this offence is a fine of $100,000.00 and or imprisonment for 20 18 years. 19 20

¶ [3] The defendant first appeared before the Grand Court on this Indictment on the 12th 21 November 2021. On the 10th December 2021, he pleaded not guilty, and a trial date was 22 set. Before the commencement of the trial, the defendant asked to be re-pleaded and 23 entered a plea of guilty. 24 25 SUMMARY OF FACTS – INDICTMENT 60 OF 2021 26 27

¶ [4] The robbery occurred on the 14th September 2021. At trial the prosecution’s case was 28 that at 3:10pm in the afternoon, the defendant entered the store of the victim, Michael 29 Ebanks, McKays Clothing and Variety Store at Walton Center, Eastern Avenue in 30 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 3 of 19 George Town. The victim has known the defendant from his childhood. The defendant 1 was in the store for a short time and left without buying anything. 2 3

¶ [5] The victim’s evidence is that the defendant returned about ten minutes later together 4 with another man. The victim let them in using the buzzer to the door. The second man 5 stood with his body halfway in the doorway. The defendant entered, went behind the 6 victim and said to him, “Big man all we come for is the money”. The defendant pulled 7 a machete out of his pants waist and held it up. The victim threw a pouch in which he 8 had between $1,200.00 and $1,500.00 to the defendant. The defendant and the other 9 man left the store with the pouch with the money. 10 11

¶ [6] At the time of this robbery, the defendant had been on bail from the Summary Court for 12 some charges. One of these was the charge of Possession of an Imitation Firearm with 13 Intent to Resist Arrest. As part of his bail conditions, he had been fitted with an 14 Electronic Monitoring Device (EMD). That device placed him in the vicinity of the 15 Walton Center at the material time. 16 17 SUMMARY OF FACTS – INDICTMENT 74 OF 2021 18 19

¶ [7] The prosecution has provided a summary of facts in respect of Indictment 74 of 2021. 20 21

¶ [8] About four months earlier on the 27th July 2021 at 8:15 pm, armed police officers 22 attended the parking lot of a small business on Eastern Avenue, Young World Fashions 23 (now re-named Caymart Hair and Beauty Supply). They did so following a report from 24 an off duty officer that two men were in a vehicle and were behaving suspiciously. 25 26

¶ [9] Upon their arrival at the scene two men were seen seated in the front seats of a blue 27 BMW motor vehicle registration no.175 750. The officers gave instructions to the men 28 to switch off the engine, place their hands outside the vehicle and exit the vehicle. The 29 person in the passenger seat complied. The defendant did not. He ran and as he did so, 30 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 4 of 19 PC Hunte and other officers saw what appeared to be a black handgun in his right hand. 1 PC Hunte shouted, “Gun”. 2 3

¶ [10] A search of the vehicle revealed cocaine and ganja. A rose gold IPhone was found in 4 the parking lot on the ground in the vicinity of where the car was parked and a black 5 IPhone in the front passenger seat. The Cayman Islands driver’s license of the defendant 6 was also found in the vehicle. The vehicle had been rented by him on the 26th June 2021 7 from one Robert Robinson. The defendant turned himself in to the Police on the 4th 8 August 2021. He was arrested on suspicion of committing the offence of possession of 9 an unlicensed firearm. 10 11

¶ [11] He was interviewed under caution the following day in the presence of his attorney. He 12 provided a prepared statement in which he denied having any firearm or imitation 13 firearm. He said he ran because when the police arrived, he had a small package of ganja. 14 He admitted that the cocaine and ganja found in the vehicle belonged to him and that 15 his phone had fallen from his hand as he ran. 16 17

¶ [12] The rose gold IPhone was analysed by the police Intelligence Analyst Joanne Delaney. 18 It was found to be attributable to the defendant and to contain a number of WhatsApp 19 conversations. In particular a conversation between the defendant and a person whose 20 name appeared in the phone as “Gully”. 21 22

¶ [13] On the 26th July 2021 at 19:22:08 pm, the phone of Gully sent a message to the 23 defendant’s phone “Man dem rally on me today had to move up”. The replies from the 24 defendant’s phone included, “Must want me rally with the bulldog on them”. 25 26

¶ [14] At 19:24:02 pm, the defendant’s phone sent an image of an apparent firearm before 27 saying, “Just know say they nay saying bounce fam”, and other messages “We ready for 28 anything. You know this fam, don’t even gotta?? that; These some serious time fam so 29 you know you can’t make nothing stop ya bread flow.” 30 31 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 5 of 19

¶ [15] The image of the firearm and messages were received in evidence as an exhibit for the 1 purpose of this sentence hearing. According to Ms. Delaney, the image of the firearm 2 has written on the side, “CZ 75D Compact CAL 9 Luger’. She stated that this marking 3 is identified as resembling the CZ (Czech Republic) firearm range. 4 5

¶ [16] These messages were sent and received about twenty-four hours before the defendant 6 was seen running from the parked vehicle with what appeared to be a firearm in his 7 hand. 8 9 ANTECEDENT HISTORY 10 11

¶ [17] The defendant has three previous convictions. He is twenty-three years old. The 12 convictions are all dated 18th December 2018. They are for Possession of a Prohibited 13 Weapon for which he was sentenced to a community service order for 40 hours and two 14 offences of Failing to Surrender to Custody for which he received a fine of $25.00 or 15 one-day imprisonment. 16 17

¶ [18] The charge relative to the Possession of Prohibited Weapon has been produced from the 18 Court’s records together with a Summary of Facts. The weapon is a flick knife. On the 19 22nd December 2017, the defendant was stopped while he was driving a motor vehicle 20 along Sound Way in George Town. This was because of the heavy tint on the vehicle. 21 Inside the vehicle, he had in his pocket a silver flick knife. He said that he had this for 22 his protection from possible harm from others and that he sometimes used it for work. 23 24 SOCIAL INQUIRY REPORT 25 26

¶ [19] The Department of Community Rehabilitation (DCR) has provided a Social Inquiry 27 Report (“SIR”) with respect to the defendant which is dated 9th June 2022. 28 29 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 6 of 19

¶ [20] The SIR states that during his childhood, he was exposed to an abusive relationship and 1 to the use of drugs which likely caused him to act out at school and abuse drugs. He 2 began using ganja at thirteen years old and at fourteen or fifteen it became a daily habit. 3 At sixteen years old, he regularly drank alcohol heavily in the mornings. The Probation 4 Officer also indicates that there is a pattern of offending with relation to driving 5 offences. 6 7

¶ [21] The defendant spoke to the Probation Officer about having anti-social peers in his 8 community in the period leading up to his arrest. This led to him engaging in day 9 drinking and doing drugs. 10 11

¶ [22] While he is said to be no longer using drugs since being on remand, the Officer notes 12 that there is evidence of his continued involvement. This is because in February 2022 13 he received an adjudication from the Prison relevant to retrieving drugs from the roof of 14 the Prison which had been thrown over the prison wall. In relation to this adjudication, 15 he was found guilty and lost twenty-one days earnings as a result. There was a second 16 adjudication relative to an attempted fight in respect of which he was cautioned. It is 17 noted that he works two jobs at the prison as a Food Orderly and Wing Cleaner. 18 19

¶ [23] One community member who has known the defendant from childhood describes him 20 as active, caring, giving and a kindhearted person. 21 22

¶ [24] At the time of the robbery, the defendant was unemployed and in receipt of a small 23 government stipend which on his account to the Probation Officer was insufficient to 24 cover more than his basic living costs. 25 26

¶ [25] The defendant was assessed using the LS/CMI instrument. His overall risk of re- 27 offending was assessed as “Very High” with one of the eight criminogenic factors in the 28 Very High category and five in the High category. 29 30 31 32 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 7 of 19 VICTIM IMPACT REPORT 1 2

¶ [26] The DCR has also provided a Victim Impact Report dated 21st June 2022 in respect of 3 the victim. Under Impact of the Offence, the Probation Officer records that the victim 4 stated that the money which was stolen was not insured so that the loss was permanent. 5 He had to close the store after the robbery and there was the potential loss of earnings. 6 There was unplanned expenditure to install Closed Circuit Television (CCTV) to give 7 him more of a sense of security. 8 9

¶ [27] The victim reported being traumatised by the incident. He said: - 10 11 “Afterwards I was thinking he (the Offender) could have chopped me. Persons 12 would have come and found me in a pool of blood. I was reflecting that you can 13 know someone and talk good with them and they still can take your life. If he had 14 come there and said Mr. Mickey I want a cigarette but I don’t have the money I 15 would have given it to him, or if he had asked me to buy him a plate of food I would 16 have. I was shocked in the moment that the offence was taking place, knowing that 17 I know him and he would take away my property.” 18 19

¶ [28] Under the heading, Assessment /Evaluation, the Officer stated: - 20 21 “Based on the available information it would appear that the Offender’s actions 22 significantly impacted Mr. Ebanks at the financial and emotional levels. Mr. 23 Ebanks lost a substantial amount of money for a small business operator, 24 especially during a time when the economy was still experiencing the effects of the 25 pandemic and many small businesses were operating at a loss.” 26 27 28 29 30 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 8 of 19 THE SUBMISSIONS - ROBBERY 1 2

¶ [29] The prosecution submitted that the offending involved a robbery of a small commercial 3 business which businesses are particularly vulnerable on this Island and is one in which 4 a machete was used. 5 6

¶ [30] Counsel referred the Court to the Cayman Islands Sentencing Guidelines and 7 submitted that the offence is one of Medium Culpability because a weapon was used to 8 threaten violence. 9 10

¶ [31] Counsel submitted also that the victim was traumatised and that it may be fairly said 11 that psychological harm was done above that which is inherent in the robbery. The 12 offence is thus one of Culpability B and Category 2 Harm with a starting point of 5 years 13 imprisonment and a range of sentence of 4 to 8 years. 14 15

¶ [32] Counsel referred the Court to the judgment of the Cayman Islands Court of Appeal 16 (CICA) in the case of R v. Michael Bush1. The appellant was sentenced in respect of a 17 robbery of a small grocery store in West Bay. This was committed when he was 18 seventeen years old. He had no previous convictions. He was in the company of another 19 man who had an imitation firearm. A sentence of 3 years imprisonment imposed on his 20 guilty plea was upheld on appeal as not being manifestly excessive. 21 22

¶ [33] Counsel submitted that in the instant case, the defendant was twenty-one years old at 23 the time of the offence, his offending should attract a sentence significantly more than 24 a sentence of 3 years after a trial. 25 26

¶ [34] Defence Counsel submitted that this is a Culpability B offence and Category 3 Harm. It 27 is accepted that it is Culpability B or Medium Culpability because of the use of a 28 weapon. It is not accepted that the harm is at the level of Category 2. It is said that there 29 is no evidence of physical or psychological harm that is over and above the level of harm 30 1 CICA Crim. App. 8/16, Unreported Judgment dated 5th January 2017 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 9 of 19 inherent in this offence. Counsel thus argues that this would be a 2-year starting point 1 with a range of sentence of 18 months to 3 ½ years. 2 3

¶ [35] Both Counsel subsequently provided cases in respect of the issue of whether harm 4 outside the inherent nature of the offence was caused. This Court is grateful to Counsel 5 for their research. 6 7

¶ [36] The defence referred to the case of R v Jones (Reece Dylan)2. In that case the English 8 Court of Appeal considered that the information in the victim impact report was no more 9 than an understandable emotional response and the immediate fears of someone who 10 had been the victim in the robbery. It was not a reliable indication as to whether the 11 harm was likely to be longstanding. The defence also referred to the case of Christine 12 Rae Smith v R3. 13 14

¶ [37] The prosecution drew the Court’s attention to the cases of R. v Adrian Gea and 15 Madeinys Ebanks-Pol4 and R. v Azeem Delano Barton5. 16 17

¶ [38] The Court notes that in both of the latter cases there was specific evidence as to the level 18 of impact on the victim. 19 20 AGGRAVATING FACTORS 21 22

¶ [39] The prosecution submitted that the aggravating factors are: - 23 24 i. That the defendant was on Summary Court bail and wearing an EMD at 25 the time of the offence. 26 ii. Violence was threatened when the defendant lifted the machete. 27 2 [2021] 1 Crim App. R. (5) 36. 3 CICA Crim. App. 15/2017, Unreported Judgment dated 31st July 2018 4 Grand Court Unreported Judgment in Ind.109 and 110 of 2016 dated 22nd June 2018 5 Grand Court Unreported Judgment in Ind.27 of 2018 dated 1st November 2018 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 10 of 19 iii. There is evidence of a degree of planning, the defendant having attended 1 the premises about ten minutes before the robbery was committed. 2 iv. The vulnerability of small commercial premises. 3 4

¶ [40] Defence Counsel accepts that the fact that the robbery was committed whilst the 5 defendant was on bail for the earlier offences is an aggravating factor. 6 7 THE SUBMISSIONS - POSSESSION OF IMITATION FIREARM 8 9

¶ [41] In respect of the second offence the prosecution submitted that in the absence of offence 10 specific guidelines in the Cayman Islands regard may be had to the United Kingdom 11 Sentencing Council Guidelines on firearm offences. These relate to s.17(1) of the 12 Firearms Act 1968 which is in similar terms to the offence in the Cayman Islands. That 13 Act provides: - 14 15 “It is an offence for a person to make or attempt to make any use whatsoever of a 16 firearm or imitation firearm with intent to resist arrest or prevent the lawful arrest 17 of themselves or any other person.” 18 19

¶ [42] It is submitted that under the Guidelines, this offence would fall within Category 3 20 Culpability and Category 3 Harm with a starting point of 1 year custody and a range of 21 sentence of a high-level community order to 2 years custody. 22 23

¶ [43] The aggravating factor is said to be that the firearm has never been recovered. 24 25

¶ [44] Counsel also referred to the Grand Court judgment in the case of R v Johnathon 26 (Jonathan) Samuel Welcome 6 and submitted that the offending has passed the custody 27 threshold and that subject to any personal circumstances that this Court may consider, 28 an immediate custodial sentence is warranted. Counsel submitted also that the 29 6 Ind. 57 of 2016 dated 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 11 of 19 WhatsApp messages between the offender and the person with the identifier “Gully” 1 and the image of a real Czech Republic made 9mm firearm strongly suggests that this 2 offender has close connection with real firearms. 3 4

¶ [45] Defence Counsel agreed with the categorisation that this is one of Lower Culpability 5 and Category 3 Harm. Defence Counsel asked the Court to note that the item seen in the 6 hand of the defendant was not pointed at anyone and not used during the commission of 7 an “active offence”. 8 9

¶ [46] Counsel submitted that the case of Welcome is extremely different from this case and 10 that the previous convictions of that defendant would have been a significant factor in 11 that case. This defendant has no previous convictions of a similar nature. 12 13 SUBMISSIONS IN MITIGATION 14 15

¶ [47] In mitigation Defence Counsel points to the SIR which indicates that the defendant has 16 been engaged in various jobs since leaving high school. When he committed these 17 offences, he was trying to start a removal business. 18 19

¶ [48] He is said to have a good work ethic and good personal qualities. He has in the past 20 responded well to supervision in the community. 21 22

¶ [49] Counsel submitted that the defendant has no previous convictions of a similar nature 23 and that he is twenty-two years of age. The Court is asked to consider the totality 24 principle and to impose concurrent sentences. 25 26 THE SENTENCE 27 28

¶ [50] The offence of robbery is agreed to be of Medium Culpability. Following review of the 29 cited cases and considering the particular circumstances of the victim as set out in the 30 VIR, this Court accepts the submissions of the defence that the Harm is at the level of 31 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 12 of 19 Category 3. No physical harm was caused to the victim and evidence as to the extent of 1 any psychological harm is limited. The VIR does not provide any detail as to whether 2 there is ongoing psychological impact on the victim. 3 4

¶ [51] From a starting point of 3 years, the Court takes into account the fact that the offence 5 was committed while the defendant was on Court bail for the offence of Possession of 6 an Imitation Firearm and was wearing an EMD. It is the view of the Court that this is a 7 significant aggravating factor. From a starting point of 3 years the sentence is increased 8 to one of 4 years. 9 10

¶ [52] In mitigation the Court takes into account all that has been said and written in favour of 11 the defendant. This includes his age; he was twenty-two years old at the material time. 12 His previous convictions are not of a similar nature. There were childhood difficulties 13 with respect to the stability of his home. He has some good personal qualities and is 14 described as having a strong work ethic. He is currently employed at the Prison in two 15 areas. When these are taken all together the sentence is reduced by 6 months to one of 16 3 years and 6 months. 17 18

¶ [53] With respect to the offence of Possession of an Imitation Firearm the Court asks itself 19 the questions as suggested in the case of R v Avis7. In that case the English Court of 20 Appeal stated that the appropriate level of sentence for a firearm offence will depend on 21 all the facts and circumstances relevant to the offence and the offender. It will usually 22 be appropriate for the sentencing court to ask itself a series of questions: - 23 24 i) “What sort of weapon is involved? 25 26 Genuine firearms are more dangerous than imitation firearms. Loaded 27 firearms are more dangerous than unloaded firearms. Unloaded firearms 28 for which ammunition is available are more dangerous than firearms for 29 7 [1998] 1 Cr. App. R. 420 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 13 of 19 which no ammunition is available. Possession of a firearm which has no 1 lawful use such as a sawn-off shot gun will be viewed even more seriously 2 than possession of a firearm which is capable of lawful use. 3 4 ii) What if any use has been made of the firearm? 5 6 iii) With what intention, if any, did the defendant possess or use the firearm? 7 8 iv) What is the defendant’s record? 9 10 The seriousness of any firearm offence is increased if the offender has an 11 established record of committing firearm offences or crimes of violence.” 12 13

¶ [54] In applying the discussed principles to the instant case, the four questions to be 14 considered are: 15 16 i. What sort of weapon is involved in this case? 17 a. It is an imitation firearm. 18 19 ii. What if any use has been made of the firearm? 20 a. It was carried to a public place. 21 22 iii. With what intention if any did the Defendant possess or use the firearm? 23 a. The defendant has pleaded guilty to possession with intent to resist arrest. 24 25 iv. What is the Defendant’s record? 26 a. The defendant is a person with one previous conviction which is not of a 27 similar nature. 28 29 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 14 of 19

¶ [55] The Grand Court in the case of cited case of Welcome while noting the paucity of cases 1 for standalone offences of Possession of Imitation Firearms in this jurisdiction and in 2 the United Kingdom said this: - 3 4 “Things have moved on since 2010. Gun crime is the scourge of the Caribbean. 5 The Cayman Islands has not escaped that trend. Gun crime has risen in the 6 intervening period and is becoming a serious problem here.”8 7 8 “Mrs. Bodden, Counsel for the Defendant, has submitted that when looking at the 9 UK cases, cognizance has to be taken of the fact that the maximum sentences in 10 the UK are higher for the equivalent offence. That is correct. However, the 11 imposition of the tough mandatory minimum in the Cayman Islands demonstrates 12 that these offences are taken extremely seriously and are indeed higher than the 13 mandatory minima in the UK.”9 14 15 “In my judgment, there has to be some correlation between sentences for a real 16 firearm and an imitation one under the section. Despite Lord Bingham’s measured 17 words, there is a strong message about the seriousness of cases involving imitation 18 firearms. In this case, the officers were clearly concerned for their safety, taking 19 cover where they could; the two members of the public must have been petrified.”10 20 21

¶ [56] Having regard to the different mandatory minimum in the Cayman Islands, the Court 22 adopted a starting point of 5 years with respect to the offence. The Court said this: - 23 24 “24. Applying the questions set out in Avis: The court is concerned with an 25 imitation firearm. Although the maximum sentence under s.18 is the 26 same whether the firearm is imitation or real, commonsense 27 dictates that the fact that the gun is an imitation one is a highly 28 8 Paragraph 23 9 Paragraph 27 10 Paragraph 28 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 15 of 19 relevant factor. If the gun in question had been a real firearm under the 1 section, the mandatory minimum sentence of 10 years imprisonment, 2 unless exceptional circumstances pertained would follow conviction. 3 However, the fact that the gun was an imitation one does not take the 4 offence out of the clearly serious category which Parliament 5 intended, not least because as Lord Bingham in the case of Bentham 6 (supra) at paragraph 6 said: 7 8 “While an imitation firearm lacks the capacity of a real loaded 9 firearm to kill or injure, it has much the same capacity to frighten 10 and enforce compliance, not least because many imitations are 11 almost indistinguishable from the real thing and those threatened 12 have little opportunity or inclination to examine the nature of the 13 weapon used.”” 14 15

¶ [57] This Court would respectfully adopt the approach of the learned Judge in the case of 16 Welcome. Given the nature of the offending in the instant case and the way the imitation 17 firearm was used, there is distinction to be drawn between the two cases. Consequently, 18 this Court will adopt a lower starting point of 3 years. 19 20

¶ [58] This offence was committed while the defendant was in public at night. These factors 21 serve to increase the sentence to one of 3 years and 6 months. 22 23

¶ [59] In mitigation the Court takes into account all that has been said in favour of the 24 defendant as set out above. The sentence is therefore reduced to 3 years. 25 26

¶ [60] The plea was offered after a trial date was set. The recommended discount is 25% or 9 27 months for a total of 2 years and 3 months (27 months). 28 29 30 31 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 16 of 19

¶ [61] The Cayman Islands Sentencing Guidelines provides general guidance as to the aims 1 of sentencing, assessing the seriousness of an offence, the custody threshold and the 2 principle of proportionality. The Court reminds itself of this guidance including that in 3 sentencing an offender, the Court has to balance a number of competing interests and 4 objectives and to tailor the punishment to the individual circumstances of the offender 5 while ensuring that it is in line with the seriousness of the offence. The Court should 6 consider which of the aims which govern the sentencing process will be best served by 7 the sentence to be passed. The aims which are set out in the Alternative Sentencing Act 8 2008 include deterrence, punishment, rehabilitation and restitution. The Guidelines also 9 provide that a custodial sentence should not be passed unless the offence is so serious 10 that no other sentence can be justified for the offence. Custody should be reserved for 11 the most serious offences. Even where the custody threshold is passed, custody can still 12 be avoided in light of personal mitigation or if there is suitable community intervention 13 which would meet the aims of punishment and rehabilitation. 14 15

¶ [62] In this case, the defendant robbed the victim of cash after visiting the store ten minutes 16 earlier, there was clearly an element of planning. The victim was placed in fear by the 17 use of a machete. This was a small business when then had to undergo the cost of 18 additional security measures in addition to the loss suffered. The offence was committed 19 while the defendant was on an EMD and on Court bail. The offence is serious and clearly 20 passes the custody threshold. 21 22

¶ [63] In respect of the second offence, the possession of the imitation firearm was clearly 23 deliberate as evidenced by the messages. It was in a public place at night and the Officers 24 must have by their shouts believed that it was a genuine firearm. The offence is serious 25 and clearly passes the custody threshold. 26 27 28 29 30 31 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 17 of 19

¶ [64] The defendant is assessed as being at high risk of re-offending and unfortunately has 1 continued to re-offend while in Prison. The custody threshold is firmly passed and there 2 are no circumstances which make a sentence of immediate imprisonment unavoidable 3 in respect of both offences. 4 5 TOTALITY 6 7

¶ [65] Paragraph 6 of the Cayman Islands Sentencing Guidelines with respect to concurrent 8 and consecutive sentences provides as follows: - 9 10 “6.1 Concurrent Sentences 11 It is wrong in principle to impose sentences to run consecutively where 12 those offences, though distinct in law, arose out of a single act so that the 13 overall criminality for the offender can be represented by concurrent 14 sentences. 15 Concurrent sentences will ordinarily be appropriate where: 16 Offences arise out of a related incident or facts. 17 There is a series of offences of the same or similar kind especially 18 when committed against the same victim. 19 Where concurrent sentence are passed, the sentence should reflect 20 the overall criminality involved. The sentence should be 21 appropriately aggravated by the presence of the associated 22 offences and thus the court may increase sentence for the principal 23 offence to reflect the gravity of conduct: 24 25 6.2 Consecutive Sentences 26 Consecutive sentences will ordinarily be appropriate where: 27 Offences arise out of unrelated facts or incidents. 28 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 18 of 19 Offences are of the same or similar kind but where the overall 1 criminality will not sufficiently be reflected by concurrent 2 sentences for example: 3 Where offences are committed against different victims. 4 Where sexual offences or domestic violence are committed 5 against the same individual. 6 Where the offender commits the same or similar offence 7 after being arrested for the original offence.” 8 9

¶ [66] In this case, the Court considers that these are two separate and distinct offences which 10 arise out of unrelated facts. Indeed, the second offence of Robbery was committed after 11 the defendant was arrested for the first offence of Possession of Imitation Firearm. This 12 Court does not consider that the overall criminality will sufficiently be reflected by 13 concurrent sentences. 14 15

¶ [67] The Court will however be mindful of the principle of totality. Consequently, only one 16 half or 13 months of the sentence for the offence of Possession of Imitation Firearm will 17 run consecutively to the sentence for Robbery for a total sentence of 4 years and 9 18 months. 19 20

¶ [68] In respect of the two section 88 offences to which the defendant has pleaded guilty 21 before this Court. For the offence of Possession of Ganja, the sentence is two weeks 22 imprisonment. 23 24

¶ [69] For the offence of Possession of Cocaine, the sentence is one month imprisonment. As 25 these offences clearly arise out of the same circumstances as the Possession of Imitation 26 Firearm, the sentences for these offences are to run concurrently. 27 28 29 30 31 32 220826 R v Tyree Jaden Welcome: Ind. 60 &74 of 2021. Coram Richards J, QC - Sentence Judgment Page 19 of 19

¶ [70] Any time served is to be deducted. The drugs are ordered forfeited to the Crown to be 1 destroyed. 2 3 Dated this the 26th day of August 2022 4 5 The Hon. Justice Cheryll Richards QC 6 Judge of the Grand Court 7