Richards J
Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 1 of 24 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 55 OF 2019 3 4 5 THE QUEEN 6 V. 7 CASSANDRA JASMINE EBANKS 8 9 Appearances: Mr. Garcia Kelly for the Prosecution 10 Mrs. Prathna Bodden of Samson Law for 11 Defendant 12 13 14 Before: Justice Cheryll Richards Q.C. 15 Submissions on Sentencing: 11th May and 24th September 2021 16 Delivery of Judgment: 18th October 2021 17 18 19 HEADNOTE 20 Criminal Law – Theft – Section 241 of the Penal Code – Principles on sentencing 21 where additional Harm, medical issues, effect on minor children and the effect of 22 incarceration raised - Percentage discount for guilty plea. 23 24 25 26 SENTENCE JUDGMENT 27 28 29 30 31 32 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 2 of 24
The Defendant is before the Court for sentencing following her guilty plea to the offence 1 of Theft of $60,000.00 from Cayman Dental Services Ltd between the period 1st March 2 and 30th November 2018. 3 4
The Defendant was initially charged on a three-count indictment with Theft (Count 1) 5 of CI$101,403.00 and US$1,190.00. The Defendant first appeared in the Grand Court 6 on the 12th July 2019. On the 26th July 2019, the Defendant was arraigned and on a basis 7 of plea, pleaded guilty to Count 1 of the Indictment to Theft of $30,000.00. This plea 8 was not accepted by the Prosecution. A Judge Alone trial commenced on the 17th June 9
On the 26th July 2020, following evidence in chief of the Complainant Dr. Terry 10 Giancrego, the Defendant was re-arraigned and pleaded guilty to the Theft of 11 $60,000.00. This plea is acceptable to the Prosecution. Counts 2 and 3, Forgery and 12 Uttering of False Documents, respectively, are to be left on file. 13 14
Section 241 of the Penal Code provides that the maximum sentence, where the Theft 15 exceeds five thousand dollars is imprisonment for ten years. 16 17
The facts are summarised by the Prosecution as follows. 18 19
Cayman Dental Services Limited is a dental practice situated in Camana Bay, George 20 Town. The Defendant was employed to the practice as a Receptionist. The Complainant, 21 Dr. Giancrego, is one of three co-owners of the business. All the co-owners are resident 22 overseas and therefore have long periods of absences from the business. Because of this, 23 the Practice Manager Maralynn Mulvihill is provided with blank signed cheques for the 24 purpose of paying suppliers. 25 26 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 3 of 24
On the 13th November 2018, Dr. Giancrego reviewed the business accounts for the 1 practice. He had been having difficulty receiving the bank statements from the bank. 2 Whilst doing what was for him a delayed review, he noticed that the funds in the accounts 3 were much less than expected, by about $150,000.00. The deposits into the bank 4 accounts were between CI$30,000.00 and $40,000.00 less than is normal. He also 5 noticed that some 36 cheques had been written payable to the Defendant and to two 6 persons on behalf of the Defendant; these were in addition to the salary cheques which 7 the Defendant had legitimately received. Cheques payable to the Defendant had either 8 been cashed or paid into the Defendant’s bank accounts at two local banks. 9 10
Later that day, Dr. Giancrego spoke to the Defendant and asked her how many cheques 11 she had written to herself and she replied that she had written one or two since August 12
The Police were called and the Defendant was arrested, cautioned and transported 13 to the Detention Centre. Whilst en route to the Centre, the Defendant said that she had 14 been writing cheques to herself since March 2018. She said that she had cashed some of 15 them and deposited some. The amounts of the cheques varied. She said that she was 16 desperate as her water had been disconnected and the Landlord had demanded the rent. 17 She had three children and they had no water. She said that she had never taken any cash 18 from the business. 19 20
The Defendant was interviewed under caution. In the course of the interview, the 21 Defendant admitted that she stole pre-signed cheques which had been signed by the 22 business owners that were left in an open office by the Practice Manager. She would 23 write cheques to herself of varying amounts which she would either cash or deposit to 24 her own account. The Defendant admitted that she did not have permission to write these 25 cheques. She said that she was in debt and in need of money to pay her bills. She had 26 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 4 of 24 used some of the money to pay rent and for her children and not for a lavish lifestyle. 1 She had been receiving financial assistance from the Needs Assessment Unit (NAU) 2 which had ceased. 3 4
Investigations revealed that between November 2017 and May 2018, she had received 5 in excess of $12,000.00 from the NAU. 6 7
An examination of the Defendant’s phone was carried out by the Police. This showed 8 screen shots of trips booked to the United States, purchases on Amazon, photographs of 9 jewelry and watches, money transfers to her boyfriend and the purchase of real property 10 and vehicles. In particular the Defendant obtained a mortgage during the period and 11 made various payments with respect thereto. On the 26th October 2018, the Defendant 12 obtained a loan of $25,495.00 from a local bank and purchased a Chevrolet Trax motor 13 vehicle. 14 15 VICTIM IMPACT STATEMENT 16 17
Dr. Giancrego has provided a Victim Impact Statement (VIS) dated 14th May 2021. He 18 states therein: 19 “The impact Ms. Cassandra Ebanks has had on my business has been very 20 long lasting. It has changed how I interact with my employees and I have 21 had to put many costly safeguards in place. 22 I have had to pay a forensic accountant to uncover all of the unlawful 23 activities that occurred. 24 I have now had to continue this on a monthly basis to ensure all safety 25 protocols are taken now that other employees know what is possible. 26 My bank accounts were depleted and went into the negative. My 27 relationship with my bank has still not recovered completely. Ms. Ebanks’ 28 embezzlement has been a huge financial hardship on me both from a 29 business and personal standpoint. 30 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 5 of 24 From a personal standpoint, I have had to take off numerous days from work 1 to sort through all of the data and appear in court on different occasions. 2 On top of all of the financial hardships, I have had a huge loss from a 3 patient/doctor prospective. Numerous patient accounts were taken 4 advantage of and it has been very difficult to re-establish trust with them. 5 Trust in doctor–patient care is of utmost importance. This will be an 6 ongoing issue I will have to deal with for years to come as many of the 7 families I treat have multiple children that I will continue to see over the 8 next 5-10 years. 9 Mentally this has been an enormous hardship. These past years, this entire 10 endeavour has literally kept me up at night.” 11 … 12 Please put measures in place with Ms. Ebanks’ sentencing to ensure that 13 amount is paid back so that I may at least partially recover from this huge 14 impact on my life.” 15 16 SOCIAL INQUIRY REPORT 17 18
The Department of Community Rehabilitation has provided a Social Inquiry Report 19 (“SIR”) dated the 30th September 2020. This provides details as to the Defendant’s 20 background and history. She is 34 years old with no previous convictions. She is a single 21 mother of three children who are 14, 11 and 8 years old. The Report indicates some 22 trauma in her early years due to the poor relationship between her parents who eventually 23 separated. She is described as having been part of a dysfunctional family setting and to 24 have been psychologically impacted by her exposure to multiple traumatic events. Her 25 teenage years were without any major incident and she graduated from high school with 26 seven passes in external examinations. She has had a history of employment through to 27 2018 when this case before the Court is said to have impacted her ability to secure 28 employment. The Officer concludes that a pattern of trauma from broken relationships 29 seems to have escalated into her current psychological response. 30 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 6 of 24
The Defendant reported to the Probation Officer that she was diagnosed in 2015 as 1 suffering from intracranial hypertension. This causes headaches and chronic pain. She 2 also reported symptoms of ongoing anxiety and depression. 3 4
The Defendant provided six character references from members of the community, a 5 number of whom were customers of Cayman Dental Services. She is described as a kind, 6 honest, hardworking, dependable and valued employee and, as demonstrating excellent 7 customer service skills with efficiency and warmth. She is also described as a person of 8 responsibility, integrity and ambition and as a devoted single parent. 9 10
The Probation Officer states that while the Defendant has acknowledged that her action 11 was wrong and seems prepared for the possible outcome, the Defendant appears to have 12 minimised her behaviour and seeks to blame her employers. She has expressed the view 13 that she was overworked and underpaid and asked to perform tasks outside her job 14 description. She spoke of being promised a bonus which she never received. She 15 admitted taking money but said that she did not “steal it”. She also did not believe that 16 she was properly compensated. She described the organization as disorganised and 17 presented herself as a victim of a mismanaged dental practice. Under Attitude Towards 18 Offending the Report states: 19 20 “According to Ms. Ebanks, the culture of the organization was for 21 employees to fill in blank slots on pre-signed cheques for wages. She said 22 that she would also do so to pay bills on behalf of the company. As required, 23 she advised she would photocopy the cheques and place them in Ms. 24 Muldhill’s (sic) (Mulvihill’s) tray. She informed she had endeavoured to be 25 an outstanding worker so as to dispel the belief that “Caymanians are lazy”. 26 She argued that overall she did not “like the operation of the office.” 27 28 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 7 of 24 Ms. Ebanks admitted to “taking” money from Cayman [Dental Services] 1 without authorisation. She said these figures represented accrued salary 2 and bonus referred to as “client incentive”. She said she “did not steal” the 3 funds but instead she “took” it by writing cheques in her name. She was 4 asked to clarify what she means by “taking” and she responded “if it 5 belongs to you”. She rationalized that she was “owed” the money, she 6 “took it”. She said the $3,500 made on these cheques represented her 7 agreed salary for February 2018 even though there was no formal 8 modification to her terms of employment. She however acknowledged that 9 she was not authorized by the doctors to write the cheques but Ms. Mulvihill, 10 the Supervisor, had bestowed such responsibility upon her. She also 11 admitted to writing cheques to her sister whom she owed a $1,000 and Mr. 12 Fritz McPherson, with Ms. Muldhill’s (sic) (Mulvihill’s) permission. She 13 claimed this was an easier arrangement to make in lieu of cash. She later 14 confessed that she took “extra” but justified she as doing Ms. Muldhill’s 15 (sic) (Mulvihill’s) job; hence this might have accumulated to “$60,000.” 16 17
The Defendant was assessed by the Probation Officer as being at medium risk of re- 18 offending with a high-risk score in one of the eight criminogenic factors, that being pro- 19 criminal attitude and orientation. 20 21 CHARACTER REFERENCES 22 23
Defence Counsel provided the Court with three additional character references from 24 members of the community.1 25 26
One person has known her since she was 7 years old and states that she is very honest 27 and will tell the truth about any situation she has been into. He says that her future is 28 bright as a young person and asks for leniency and mercy for her. A second has known 29 1 Bishop Dolbert A. Clarke dated 4th June 2021; Hon. McKeeva Bush dated 22nd June 2021; Danielle Watler dated 23rd September 2021. Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 8 of 24 her from birth and describes her as a kind, considerate and industrious individual who is 1 dedicated to the well-being of others. She gives voluntary service to a number of 2 organizations. She is also described as deeply remorseful and repentant and as having 3 been engaged in conduct which is a one-time indiscretion. 4 5
Since July 2021 the Defendant has been working with a marketing company. Her 6 employer describes her as a valuable asset to the company and says that she has found 7 her to be of sound character, honest, capable, detail-oriented, pleasant and extremely 8 competent. 9 10 HEALTH ISSUES – PSYCHOLOGICAL REPORT 11 12
Following the receipt of the SIR, Defence Counsel sought a psychological assessment 13 of the Defendant. 14 15
Dr. P. Gayle of the Health Services Authority provided a Psychological Assessment in 16 June 2021 and an Addendum Assessment on 26th August 2021. Tests indicated no 17 evidence of cognitive impairment and no difficulties with memory functioning. Her 18 overall cognitive functioning is slightly below the average range although her 19 crystallized intelligence (vocabulary) which is within the average range is a more 20 accurate assessment of her general intelligence. 21 22
Other tests indicated that the overall integrity of her general brain functioning is within 23 the normal range for cognitive functioning. Her risk of recidivism is assessed as low. 24 25
The addendum report stated: 26 27 28 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 9 of 24 “To add to what the assigned officer outlined in her report, as stated above, 1 results from the report that I provided, as set out on page 3 of the above 2 report, Ms. Ebanks’s test results indicate that “...when she is presented with 3 unfamiliar/novel tasks she may experience a strong emotional reaction 4 resulting in her experiencing mild to moderate difficulty with planning, 5 sequencing, reasoning, retention, concentration, mental flexibility and 6 motivation, which may result in fatigue, confusion and possible frustration. 7 However, once she understands the operation of the task, she is better able 8 to perform independently without difficulty.” 9 10 “An explanation for this outcome can be provided by findings from 11 researchers (De Bellis & Zisk, 2014)* who conducted studies on the impact 12 of the exposure to traumatic events during childhood. The researchers 13 outlined that executive functioning and cognitive decision making are 14 affected by our emotions, and indicated that individuals who have 15 experienced childhood trauma tend to be more conservative (cautious) and 16 defensive with decision making.” 17 18 HEALTH ISSUES - MEDICAL 19 20
On the 11th May 2021, Defence Counsel provided the Court with a letter from Dr. Denise 21 Osterloh dated 10th May 2021. This contains two paragraphs and states: 22 23 “In 2016 Cassandra was diagnosed by Health City with a condition called 24 “Idiopathic Intracranial Hypertension”. With this condition she suffers with 25 severe pain causing headaches, vision/hearing difficulties which are a few 26 symptoms that may occur. This condition impacts the day to day functioning 27 of her life, causing distress and disability. It also can decrease her life 28 expectancy by 25%. 29 30 Due to the above medical condition, it would not be advisable for Cassandra 31 to be imprisoned. This would worsen her current medical condition.” 32 33 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 10 of 24
The Court inquired as to the detailed basis for the statements made. Following the 1 hearing, both Counsel provided agreed further questions to the Doctor for a response. A 2 further report was provided by the Doctor dated 1st June 2021 the contents of which are 3 set out below: 4 5 i. “What is Idiopathic Intracranial Hypertension (IIH)? 6 IIH happens when the pressure in the fluid around the brain (cerebrospinal 7 fluid) increases. The increase in the pressure has no known cause – 8 “Idiopathic” “Intracranial” mean within the skull. 9 “Hypertension” means high pressure. Due to the increased fluid around 10 the brain and spinal cord, the pressure builds up and puts extra pressure on 11 the brain/and the nerves in the back of the eyes (called the optic nerve). 12 Symptoms of IIH are often similar to the symptoms of a brain tumor. 13 14 ii. Can you outline the symptoms that Cassandra is experiencing as a result of 15 her Idiopathic Intracranial Hypertension? 16 Severe headaches - daily and constant nausea, eye pain and blurred vision, 17 back and neck pain. 18 19 iii. How severe are the symptoms? 20 She has constant daily headaches. The headache is severe but may fluctuate 21 in intensity. The body aches are constant. Eye pain fluctuates. Blurred 22 vision is episodic. 23 24 iv. How does this impact her day to day life? 25 Cassandra does not go a second without pain. Her headaches are constant 26 (@4-5/10) and when extremely severe (@8-9/10), she is bedridden and 27 unable to move due to the pain and nausea. When moderate pain, she can 28 manage her daily life but this is becoming harder for her to do. When she 29 has visual impairment, she is unable to do anything. 30 31 32 33 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 11 of 24 v. Has her condition improved or worsened in the last 5 years? 1 It has worsened in the last 3 years. 2 3 vi. What is the prognosis and treatment? 4 Treatment is aimed at preserving the Optic nerve function (and thus 5 preventing visual loss and blindness) and managing the raised intracranial 6 pressure. This can be done with medication/weight loss and if unsuccessful, 7 then surgery – this is done if medication fails or if visual function 8 deteriorates. Surgery entails basically draining the Cerebrospinal fluid 9 from around the brain into another part of the body. 10 This is usually a chronic illness and the prognosis, although not known to 11 be associated with any specific mortality risk per se, there is increased 12 mortality associated with the complications that can occur with 13 management. Also there is an increased mortality and mortality and 14 morbidity risk with obesity – especially obese females. 15 16 vii. Will she require any surgery etc., in the near future? 17 It is a possibility. 18 19 viii. How will prison worsen her condition? 20 Stress can worsen the headaches and other symptoms. 21 22 ix. Have you been to the women’s prison? If so, are you aware of the facilities 23 etc., which may or may not assist Ms. Ebanks? 24 No – have not visited but yes, am aware of the facilities. 25 26 x. Why can’t she be treated etc., whilst in custody? 27 She can be treated in custody.” 28 29 30 31 32 33 34 35 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 12 of 24 SENTENCING GUIDELINES 1 2
The Statement on Tariffs and Guidelines for Sentencing for Certain Offences (2002)2 3 in respect of the offence of Theft provides: 4 “For offences of Theft or related offences, depending on the value of the 5 property stolen and any other aggravating factors, particularly where there 6 is a breach of trust in the context of a relationship of employment, an 7 immediate term of imprisonment ranging from 1-4 years for a first offence, 8 and an order for repayment will likely be imposed. The tariff could be higher 9 still depending on the seriousness of the offence.” 10 11 12
In the absence of offence-specific Guidelines in this jurisdiction, Counsel referred the 13 Court to the United Kingdom Sentencing Council Guidelines of February 2016. The 14 maximum term of imprisonment in the United Kingdom is 7 years’ custody which is less 15 than in the statute3 in the Cayman Islands. 16 17 SUBMISSIONS 18 19
The Prosecution submits that the Culpability in the instant case is high as there was a 20 breach of a high degree of trust. The Defendant was given access to signed blank cheques 21 and betrayed the trust of her employer. 22 23
As to the category of Harm, the Prosecution submits that the amount of money stolen 24 was substantial and that there was also loss of confidence in other employees, which 25 directly resulted therefrom. 26 27
Prior to the receipt of the VIS, the Prosecution submitted that this would be category 2 28 Harm. The starting point for category 2 Harm and Culpability A is 2 years’ custody with 29 a category range of 1-3 years and 6 months’ custody. 30 2 The Chief Justice’s Sentencing Guidelines (2002) (dated 16th January 2002) 3 s.241 of the Penal Code Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 13 of 24
Defence Counsel submits that the Culpability level is B or medium level, (some degree 1 of trust or responsibility rather than a high degree of trust or responsibility). It is argued 2 that the Defendant was only the Receptionist and was not in a position of a high degree 3 of trust such as would be an accountant or manager. 4 5
Defence Counsel also submits that the level of Harm, based on the value, would be a 6 category 2 and that there are no other aggravating factors apart from the value. In this 7 regard it is said that the method of the theft was not sophisticated neither was it a long 8 period of offending. 9 10
Culpability B, category 2 harm has a starting point of 1 year custody with a range of 26 11 weeks to 2 years’ custody. 12 13
In mitigation Defence Counsel submits that the Defendant is remorseful, embarrassed 14 and has psychological issues such that her mental health is a concern. She has now 15 engaged in counselling on the advice of her doctor so that she can start getting the help 16 that she needs. The factors in mitigation are said to include her remorse, previous good 17 character, good work ethic, health issues, that she is the sole carer of dependent children 18 and the significant passage of time since the commission of the offence which is not the 19 fault of the Defendant. Counsel also submits that the delay in this case has been 20 significant. These offences were committed in March 2018 and despite the early 21 acceptance of responsibility, this is now the latter half of 2021. The Defendant is 22 recently, since July 2021, in gainful occupation. It is accepted that she will never be able 23 to pay back the amount of $60,000.00 in the near future. The most that she is able to 24 offer, given her recent employment, is $1,000.00 to be paid now and $300.00 per month 25 going forward. 26 27 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 14 of 24
Counsel further submits that while it is agreed that the custody threshold has been passed 1 in this case, there are personal and specific circumstances of the Defendant which justify 2 the imposition of a suspended sentence. 3 4 GUIDING PRINCIPLES - CHILDREN 5 6
As this case involves dependent children, Prosecuting Counsel has drawn the Court’s 7 attention to two cases in which the relevant principles have been considered. In R v 8 Petherick4, the English Court of Appeal provided guidance on sentencing an offender 9 where the right to respect for family life is engaged. Where dependent children are 10 involved this is a relevant factor in sentencing and their interests must be considered. 11 12
A court will require information about the domestic circumstances of a defendant and 13 where the family life of others especially children will be affected will ask “whether the 14 sentence contemplated is or is not a proportionate way of balancing such effect with the 15 legitimate aims that sentencing must serve.” 16 17
With respect to the balancing exercise which requires to be undertaken, the Court said: 18 19 “Fifth, in a criminal sentencing exercise the legitimate aims of sentencing 20 which have to be balanced against the effect of a sentence often inevitably 21 has on the family life of others, include the need of society to punish serious 22 crime, the interest of victims that punishment should constitute just desserts, 23 the needs of society for appropriate deterrence (see section 142 Criminal 24 Justice Act 2003 ) and the requirement that there ought not to be unjustified 25 disparity between different defendants convicted of similar crimes. 26 Moreover, as Sachs J pointed out in the South African Constitutional Court 27 in N v The State [2007] ZACC 18, in a case in which there was under 28 consideration a specific provision in the Constitution which required the 29 interests of an affected child to be “the paramount consideration”, not only 30 society but also children have a direct interest in society's climate being one 31 of moral accountability for wrongdoing.” 32 33 4 [2012] EWCA Crim 2214 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 15 of 24
Additional principles considered by that Court may be summarised in the following way. 1 A finely balanced case may mean that interference with the family life of innocent 2 children may sometimes tip the scales such that it would be disproportionate to impose 3 a custodial sentence. The more serious the offence, the less likely that this would be the 4 case. In a case where custody cannot be avoided proportionately, the effect on children 5 may be grounds for the mitigation of the length of the sentence. 6 7
In R v. Nethersole5, the Court stated: 8 9 “The approach the recorder ought to have taken to impact on dependent 10 children is set out in well-established guidance by this court in R v Petherick 11
EWCA Crim 2214, where the court accepted that recognition that 12 the sentencing of an offender engages not only the offender's own Article 8 13 rights but also the Article 8 rights to family life of those members of the 14 family, including dependent children, must be considered. Consistently with 15 Article 8, a sentencing judge should consider as a relevant factor the 16 consequences for children if their sole carer is sent to prison, and should 17 consider whether the sentence contemplated is or is not proportionate when 18 balancing the impact of it on those children and the separation from their 19 carer against the seriousness of the offending and the legitimate aims such 20 a sentence serves. In a case where custody cannot proportionately be 21 avoided, the effect on children should be considered in the context of the 22 length of the overall sentence to be imposed, as the Court of Appeal 23 expressly discussed at paragraph 24. Where the court has insufficient 24 information to enable it to carry out that balancing exercise, then it must 25 ask for additional information.” 26 27 28
These principles are borne in mind by this Court in considering an appropriate sentence 29 in respect of this case. 30 31
In the instant case the SIR records that the Defendant stated that if the outcome of the 32 sentencing exercise is a custodial sentence, her parents will assume guardianship of her 33 children with the assistance of their paternal aunt. 34 35 5 2015 EWCA Crim 2174 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 16 of 24
The father of the Defendant advised the Probation Officer that that he has been rendering 1 financial support to them and: 2 3 “… they reside with their aunt who works on shifts which includes nights. 4 He pondered that if Ms. Ebanks is given a custodial sentence, he and her 5 mother would not be able to provide suitable accommodation for the 6 children; hence they would have to rely on Ms. Mitzy Codner to have full 7 custody of the children. He acknowledged that Ms. Codner has not 8 confirmed her ability to assume this responsibility. He concluded that he 9 could do whatever it takes to ensure that his grandchildren are protected. 10 He mentioned that their father is on Island but he has not been fully 11 committed to the care of the children.” 12 13 SENTENCE 14 15
This was not a theft which was sophisticated in nature, neither did it require significant 16 planning. This appears to have been one of opportunity facilitated by the way in which 17 the blank signed cheques were stored. While there was a level of trust reposed in the 18 Defendant in allowing her to write cheques to herself for her salary on occasion, she was 19 not entrusted with the cheque book nor with the finances of the office. The Court accepts 20 the submissions of Defence Counsel that given her limited level of responsibility as the 21 Receptionist, there was breach of some degree of trust rather than breach of a high degree 22 of trust or responsibility. The case therefore falls within the category of medium 23 culpability. 24 25
As to the level of Harm, the Guidelines provide that: 26 27 “Harm is assessed by reference to the financial loss that results from the 28 theft and any significant additional harm suffered by the victim or others.” 29 Some examples of significant harm are provided.” 30 31 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 17 of 24
Defence Counsel submitted that the harm which resulted is solely because of the high 1 value of the amount stolen and that there are no factors which indicate significant 2 additional harm. 3 4
The VIS from Dr. Giancrego sets out the personal distressing effect upon him, the 5 significant financial impact on the business and the hardship which resulted. The bank 6 accounts of the business were depleted and went into negative balances. The accounts 7 of many patients were affected and the patient/doctor relationship of trust in respect of 8 these patients was negatively impacted. The victim states that re-establishing trust with 9 these patients is very difficult. A forensic accountant had to be hired to complete an audit 10 and the hiring has been continued on a monthly basis in order to ensure that other 11 employees do not steal from the business. There is thus continuing impact on the 12 business. 13 14
Each case has to be considered on its particular facts,. There will, of course, be 15 businesses of a nature that harm from a theft of this kind or amount would be 16 insignificant. The nature of this business, involving patients, its apparently small size 17 and limited management structure has made the conduct all the more harmful to it. 18 19
In the Court’s view, there is, in the instant case, significant additional harm which, from 20 the examples given in the Guidelines, includes fear/loss of confidence caused by the 21 crime as well as the consequential financial harm on the victim and the impact of the 22 theft on the business. This case could properly fall into Harm Category 1, being one of 23 high value with significant additional harm to the victim. 24 25 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 18 of 24
An offence of Culpability B (medium culpability) and category 1 Harm, has a starting 1 point in the Guidelines of 2 years’ custody with a range of sentencing of 1 year - 3 years 2 and 6 months. 3 4
In the case of R v. Robert Aspinall6, the Cayman Appellate Court expressed the view 5 that “the higher maximum in the Cayman Islands is an explicit statutory direction as to 6 how seriously theft is regarded in the Cayman Islands” and that this higher maximum 7 ought to be taken into account when reference is made to the United Kingdom 8 Guidelines. 9 10
Applying an uplift to reflect the higher sentence in the Cayman Islands, the starting point 11 in the instant case is one of 34 months’ imprisonment. 12 13 AGGRAVATING FACTORS 14 15
The Prosecution submitted that there is one aggravating factor of an attempt to 16 conceal/dispose of evidence. This is on the basis that the Defendant wrote the cheques 17 and engaged in such activity over a long period of time. This is not a submission which 18 is accepted. Writing the cheques was done in order to effect the theft and not to conceal 19 it. The Court finds that there are no aggravating factors in this case. 20 21 MITIGATING FACTORS 22 23
The Court takes account of all that has been said about the Defendant, the contents of 24 the SIR, all the character references provided and the submissions of Counsel on her 25 behalf. The mitigating factors taken into account include, the absence of previous 26 6 CICA Appeal 16 of 2016 , 6th December 2016 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 19 of 24 convictions, her remorse, her acceptance of responsibility at an early stage, her good 1 work ethic, the fact that she is the sole carer for dependent children, and that she has a 2 serious medical condition and psychological issues. Were these the only factors, to be 3 taken into account, with some weight being given to the factor that she is the sole carer 4 for dependent children, the sentence would have been reduced from the starting point to 5 one of 24 months’ imprisonment. 6 7
However there has also been significant delay in respect of this case which is no fault of 8 the Defendant. The delays were in part occasioned by the pandemic period during which 9 the trial was listed in 2020 and, more recently, due to the need to await the completion 10 of the respective reports. When all the factors in mitigation are considered, the sentence 11 is reduced to one of 21 months’ imprisonment. 12 13 REDUCTION FOR GUILTY PLEA 14 15
The Prosecution and the Defence disagree as to the nature of the reduction for guilty 16 pleas which should be allowed in this case. The Prosecution ask the Court to consider 17 that the evidence was overwhelming such that the Defendant ought not to receive full 18 credit and that credit in this case should be limited to 20% as recommended in the 19 Cayman Islands Sentencing Guidelines, paragraph 10.7.1. The Court has considered 20 this submission and concludes that while the evidence appears to have been strong, it 21 does not find that the evidence in the absence of admissions was overwhelming - in 22 particular as to the level of funds taken - such that a full reduction should be withheld. 23 24 25 26 27 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 20 of 24
Defence Counsel argues that full credit ought to be given in circumstances where a plea 1 was offered at an early stage, albeit to a lesser amount. Counsel submits, in addition, that 2 it was not until after the evidence had commenced that some agreement was able to be 3 reached. 4 5
It is accepted that some early admissions were made and that the issue related to the 6 amount said to have been taken. The trial began and it was only at that stage that the 7 Defendant pleaded to theft of the much larger amount. The Guidelines do not address 8 this directly however, paragraph 10.5 of the Guidelines suggests that the Court in 9 determining the level of reduction considers: 10 11 “The stage in the proceedings for the offence at which the offender indicated 12 his intention to plead guilty and the circumstances in which this indication 13 was given.” 14 15 16
Paragraph 10.6 (d) provides that 17 18 “Where a defendant is convicted after pleading guilty to an alternative 19 (lesser) charge to that to which he she/she had originally pleaded not guilty, 20 the extent of any reduction will be determined by the stage at which the 21 defendant first formally indicated to the court willingness to plead guilty to 22 the lesser charge, and the reason why that lesser charge was proceeded with 23 in preference to the original charge.” 24 25 26
The Court is also mindful of the principles set out in the English case of R v. West7 . In 27 the instant case the Defendant made an unequivocal indication of a guilty plea in open 28 court to a lesser amount. Ultimately the plea which was accepted by the Prosecution was 29 less than the amount stated in the Indictment. In these circumstances the Court considers 30 that it is appropriate that a reduction is given which refers to the earlier stage at which 31 the plea was offered. 32 7 [2019] EWCA Crim. 497 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 21 of 24
The Defendant is thus afforded full credit of one-third - reducing the sentence to one of 1 14 months’ imprisonment. 2 3
The Cayman Islands Sentencing Guidelines provides general guidance as to the aims 4 of sentencing, assessing the seriousness of an offence, the custody threshold and the 5 principle of proportionality. Notwithstanding the individualized nature of the sentencing 6 process, there should be parity of sentences between those who have been convicted of 7 similar offences committed in similar circumstances. The Court reminds itself of this 8 guidance including that in sentencing an offender, the Court has to balance a number of 9 competing interests and objectives and to tailor the punishment to the individual 10 circumstances of the offender while ensuring that it is in line with the seriousness of the 11 offence. The Court should consider which of the aims which govern the sentencing 12 process will be best served by the sentence to be passed. The aims which are set out in 13 the Alternative Sentencing Act 2008 include deterrence, punishment, rehabilitation and 14 restitution. The Guidelines also provide that a custodial sentence should not be passed 15 unless the offence is so serious that no other sentence can be justified for the offence. 16 Custody should be reserved for the most serious offences. Even where the custody 17 threshold is passed, custody can still be avoided in light of personal mitigation or if there 18 is suitable community intervention which would meet the aims of punishment and 19 rehabilitation. 20 21
This is a case in which there was some breach of trust in the course of the 22 employee/employer relationship. It is a serious offence in which the custody threshold 23 is firmly passed. The Court has given consideration to whether the sentence of 14 months 24 or any part of it may be suspended and as to the primary aims of sentencing in this case. 25 26 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 22 of 24
The Defendant is assessed by the Probation Officer as at medium risk of re-offending. 1 The Psychologist assesses her as at low risk of re-offending given her background 2 history of employment and lack of prior offences. There is personal mitigation as set out 3 above including as to previous good character, remorse, medical/psychological issues 4 and caring responsibilities for her children. Balanced against these personal 5 circumstances is the fact of the nature of the offending. 6 7
The Defendant took advantage of what she described as a disorganised office culture. 8 Armed with the knowledge that there were within an unlocked area of the office pre- 9 signed blank cheques - cheques which she had on occasion been allowed to fill out for 10 lawful payments to herself - she proceeded to utilise this knowledge for her own 11 purposes. 12 13
Significantly this was not a one-off taking. What may have begun as a crime of 14 opportunity became a systemic course of conduct over a period of nine months during 15 which the Defendant wrongfully wrote to herself or for her benefit some 36 cheques. It 16 continued until it was detected in November 2018. 17 18
The behaviour is dishonest and inconsistent with the public persona which is described 19 by the character witnesses. Some persons refer to her as having been led into this conduct 20 as a result of a male/female relationship. This cannot excuse it. Moreover despite 21 accepting responsibility and showing remorse, the Defendant continued to try to 22 minimize her actions by blaming the disorganised state of the business. Contrary to 23 assertions as to this having been done because of need, it is evident from the 24 investigations that there was spending which was entirely unrelated to need. 25 26 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 23 of 24
The harm which has been caused is significant as detailed above. The harm has not been 1 abated to any extent. No restitution has been made to date. The Defendant has been 2 unable to do so because of her employment circumstances and it is not likely that she 3 will be able to do so in the near future. 4 5
The Court has considered with care the psychological and medical reports. The latter 6 states that a custodial sentence may worsen her condition as it may be stressful for her 7 but also states that her condition can be treated in Prison if a custodial sentence is 8 imposed. The Court does not consider that these reports evidence personal 9 circumstances which would serve to make a custodial sentence unavoidable. The Court 10 does not consider that these reports together with all her personal circumstances are such 11 as to make a custodial sentence unavoidable. 12 13
In the Court’s view, balancing all factors and taking all of the personal circumstances 14 and delay into account as against the seriousness of the offence, this is not a case where 15 a custodial sentence can be avoided. There must, in arriving at the appropriate sentence, 16 be both elements of punishment and deterrence as well as rehabilitation. The conclusion 17 is that given her particular circumstances, the entirety of the sentence should not be 18 custodial in nature. Consequently the sentence of 14 months’ imprisonment is to be 19 served as follows: 20 21 i. Seven (7) months immediate custody. 22 23 ii. 7 months imprisonment suspended for two years. 24 25 iii. A Supervision Order is made with some of the conditions as recommended 26 by the Probation Officer, including that the Defendant : 27 Sentence Judgment: The Queen v. Ebanks (Cassandra Jasmine). Ind. 55/2019. Coram: Richards J Q.C. Date: 18th October 2021. Page 24 of 24 1 a. Attends the Counseling Center for counselling as directed; 2 3 b. Participates in the Female Empowerment Services 4 Programme; 5 6 c. Engages in any other programme as directed by the 7 Probation Officer and/ or Counselor; 8 9 d. Registers with WORC 10 11 iv. Any time served is to be deducted. 12 13 COMPENSATION 14
The offer which is made based on her limited financial circumstances is of payment of 15 $1,000.00 now and $300.00 per month. If paid continuously it will take 196 further 16 payments or 16 years to complete payment of the amount of $60,000.00. Given the 17 nature of the sentence imposed and the uncertainty as to whether following her release 18 from Prison, she will have the means to pay, no order for compensation is made. The 19 Defendant may however wish to consider her moral responsibility and obligation in 20 respect of this amount. 21 22 Dated this the 18th October 2021 23 24 Honourable Justice Cheryll Richards Q.C. 25 Judge of the Grand Court 26 27