St. John-Stevens J
____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 1 of 21 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND. NO: 0093/2017 4 5 6 THE QUEEN 7 8 v. 9 10 JUDITH FRANCEA DOUGLAS 11 12 13 14 Appearances: Ms. Toyin Salako for the Crown 15 16 Mr. Jonathon Hughes of Samson Law for 17 the Defendant 18 19 Before: Justice St. John-Stevens (Actg.) 20 Heard: 24th February 2021 21 22 23 24 25 HEADNOTE 26 Criminal Law – Obtaining property by deception – Case returned to the Grand 27 Court for re-trial by the Cayman Islands Court of Appeal (CICA) – Defendant 28 pleads guilty three days prior to the commencement of the re-trial – Points argued: 29 Whether this offence is to be considered along with previous offence; Percentage 30 reduction for guilty plea - Sentence. 31 32 33 34 SENTENCE JUDGMENT 35 36 37 38 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 2 of 21 INTRODUCTION 1 2
Judith Douglas falls to be sentenced upon a single count of obtaining property by 3 deception, contrary to s.247 of the Penal Code (2010 Revision), the particulars 4 being: 5 “between the 2nd day of November 2010 and the 30th day of January 6 2016...dishonestly obtained KYD$1,946,437.00, being property belonging to 7 Nathaniel Robb, with the intention of permanently depriving Nathaniel Robb 8 thereof, by deception, namely by falsely representing that the money was 9 required for the purposes of payment for a legitimate application for permanent 10 residency status and a Caymanian passport to the Cayman Islands 11 Government.” 12 13 14
The operative deception is that Nathaniel Robb paid over the monies believing that 15 it was legitimately required to obtain the grant of permanent residency, and not that 16 the money was paid over believing it was to be used corruptly to obtain permanent 17 status. 18 19 HISTORY OF THE CASE 20 21
Judith Douglas was first convicted by a jury of this offence on the 9th July 2019. 22 Pursuant to a judgment of the Cayman Islands Court of Appeal (CICA), delivered 23 on the 5th October 2020, her conviction was quashed. The Appellate Court was 24 ultimately driven to conclude that no reasonable observer would have left court 25 feeling Judith Douglas had a fair trial – this being due to the tone and tenor of judicial 26 interventions during the trial. Thus a retrial was ordered to commence in January 27
28 29
On the 20th January 2021 Judith Douglas pleaded guilty to this offence. A written 30 basis of plea was submitted which was accepted by the Prosecution. 31 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 3 of 21 HISTORY OF OFFENDING 1 2
Judith Douglas was arrested on the 20th April 2010 for offences of dishonesty - such 3 were reflected in a thirty-eight Count indictment (Indictment 56/2012) which 4 preferred against Judith Douglas and others and dated 21st August 2012. Thirty-six 5 counts alleged that this defendant with others obtained property by deception. 6 7
The charges reflected a period of dishonest criminality from the 2nd September 2009 8 until 21st June 2010. On each occasion, the operative deception was that cash was 9 required for the purpose of submitting a legitimate application for Permanent 10 Residency to the Cayman Islands Government. The total amount of money 11 dishonestly obtained was CI$20,500.00. 12 13
The case arose from a complaint made to the Cayman Islands Immigration 14 Department that Judith Douglas and her co-defendants were collecting KYD$2,500 15 in cash from members of the public with the promise of securing permanent 16 residency. 17 18
In October 2010, approximately 6 months after her arrest for the earlier offending, 19 and whilst on bail, Judith Douglas first met Nathaniel Robb - the complainant in 20 respect of this case which she now falls to be sentenced. By the 2nd November 2010 21 Judith Douglas was falsely representing to Nathaniel Robb that money was required 22 for the purposes of payment for a legitimate application to the Cayman Islands 23 Government for Permanent Residency and a Caymanian passport. 24 25
On the 24th August 2012 Judith Douglas pleaded not guilty to the first set of offences; 26 a number of trial dates were identified and vacated. 27 28 29 30 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 4 of 21
On the 4th September 2015 Judith Douglas asked to be re-arraigned and she pleaded 1 guilty to nine counts of obtaining property by deception pursuant to s.247 of the 2 Penal Code (2007 Revision). These pleas were accepted by the prosecution. The 3 prosecution, then, choose not to pursue the remaining counts. 4 5
The period of criminality in relation to the instant case lasted until January 2016. 6 Nathaniel Robb handed Judith Douglas a total of KYD$1,946,437 - this being on 7 472 separate occasions in various amounts of cash (with the exception of one cheque 8 payment of USD$2,439.03). The largest single amount handed to Judith Douglas on 9 any one day was KYD$18,000.00. 10 11
On the 26th April 2016 Judith Douglas was sentenced to a term of 2 years’ 6 months’ 12 imprisonment in relation to these nine counts. 13 14
Even after that date Judith Douglas continued to contact Nathaniel Robb, still 15 representing the scheme was legitimate. 16 17
On the 24 November 2016 Judith Douglas was notified of the allegation in relation 18 the matters she falls to be sentenced for today. 19 20 FACTUAL BASIS OF SENTENCE 21 22
The Written Basis of Plea (Agreed by Prosecution) reads as follows: 23 24 “In October 2010, Nathaniel Robb contacted me through our mutual 25 acquaintance Daniel Barker and said that he had heard that I could help him 26 get Caymanian status. 27 28 He asked me if I could put him in touch with Immigration officials to achieve 29 this and that he would pay me money. 30 31 I agreed to make efforts to identify an Immigration official who could assist him. 32 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 5 of 21 I never represented myself as acting on behalf of the government, but I accept 1 that I represented to Nathanial Robb that I was in contact with officials who 2 were facilitating status applications. 3 4 Over the following months I collected money from Mr. Robb. I accept that I 5 obtained this money and that I was never able to secure the assistance for Mr. 6 Robb which I had undertaken to provide to him. In doing so I deceived him. 7 8 I retained the initial $2,500 given to me by Mr. Robb. I did not retain the rest of 9 the money for myself, but instead passed it on to a third party who I do not wish 10 to name. This third party paid me $1,500 on three separate occasions, $500 on 11 approximately ten occasions and $300 on a further fifteen occasions to act as a 12 go between.” 13 14 THE FACTUAL CONTEXT OF THE WRITTEN BASIS 15 16
Nathaniel Robb, a citizen of the United States, was the owner of a Cayman company 17 called Indepth Water Sports. He was running this company under the benefit of a 18 work permit. He, as many on this island, wished to obtain Cayman Permanent 19 Residency and ultimately Caymanian Status. 20 21
Mr. Robb was told by Daniel Barker, a neighbour, that Judith Douglas could 22 facilitate his status application. No doubt, this was a reputation Judith Douglas 23 garnered whilst facilitating the same service in the context of her previous dishonest 24 offending. 25 26
Nathaniel Robb met Judith Douglas in October 2010. She told him that that in return 27 for a cash payment of KYD$8,000.00 she could obtain non-revocable Caymanian 28 Status. She also told him most of the money would be reimbursed. Nathaniel Robb 29 acted on this, and gave Judith Douglas the KYD$8,000. Judith Douglas handed him 30 a Permanent Residency application form, which he completed and returned to her. 31 32 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 6 of 21
From that point on Nathaniel Robb regularly paid Judith Douglas sums of money, in 1 the expectation, and ongoing reassurance from Judith Douglas, that he would be 2 granted Cayman Permanent Residency. 3 4
In November 2010 Nathaniel Robb paid over a further KYD$11,000.00 in cash. In 5 March 2011, he paid over a further KYD$14,000.00. The receipt he was given stated 6 that the fees had increased. 7 8
Judith Douglas asked Nathaniel Robb for documents which would be needed for a 9 legitimate application (such as a passport and bank references) - this in no doubt to 10 underpin the facade of legitimacy. Nathaniel Robb continued to pay over regular 11 sums in cash. There was one non-cash payment: Nathaniel Robb gave Judith 12 Douglas a cheque for KYD$2,000.00 which she cashed. 13 14
By March 2012 Nathaniel Robb had paid over KYD$141,150.00 in cash. 15 16
On the 5th April 2012 Mr Robb was granted Permanent Residency. Nathaniel Robb 17 believed erroneously that Judith Douglas had facilitated this. Judith Douglas used 18 this to further convince Nathaniel Robb that the process was legitimate and that they 19 could now concentrate on his Caymanian Status application. She continually 20 reinforced her false representations that she was in close contact with government 21 officials for his application. 22 23
Sometime on or just after the 9th April 2012 Judith Douglas handed Nathaniel Robb 24 a letter ostensibly from the “Committee Chairperson”. This particularised monies to 25 be repaid and owed. A letter of similar import was dated 4th July 2012 and informed 26 Nathaniel Robb that he was required to pay more money; each a falsification. 27 28 29 30 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 7 of 21
A letter of the 5th July 2012 stated he would be refunded KYD$130,000.00 by the 9th 1 July. No such refund ever materialised. 2 3
By the 30th January 2016 Nathaniel Robb said he had paid over cash in the sum of 4 KYD$1,911,925.00 – not including the one cheque for KYD$2000.00. 5 6
Between the 10th July 2014 and 26th February 2016, many WhatsApp messages were 7 exchanged between Nathaniel Robb and Judith Douglas. The messages from Judith 8 Douglas requested further money and made reference to Nathaniel Robb being 9 refunded money. The letters were exhibited. In the messages, Judith Douglas 10 requested further sums of money, referred to money being refunded and provided 11 various explanations as to why more money was required. 12 13
In April 2016 Judith Douglas telephoned Nathaniel Robb. She asked him to be 14 patient with her and for him not to contact the police. She maintained the pretence 15 that this was a legitimate scheme and that the cash Nathaniel Robb had paid her was 16 for his grant of Permanent Residency, Caymanian Status and a Caymanian passport 17 and that at the end of the process he would receive a refund. This was a call made by 18 Judith Douglas from HMPS Fairbanks, that is, she was at the time, in custody, 19 awaiting sentence for the 9 counts of Obtaining Property by Deception. 20 21
On the 26th April 2016 Judith Douglas was sentenced to a term of 2 years’ 6 months’ 22 imprisonment, nonetheless, she continued to contact Nathaniel Robb maintaining 23 that the process was legitimate and that her incarceration was a misunderstanding1. 24 25 26 27 28 1 Calls made on the 8th and 22nd May 2016. ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 8 of 21 ARREST AND INTERVIEW 1 2
On the 24th November 2016 Judith Douglas was notified of the allegation. She was 3 cautioned and she said “No. I recognise the name but it’s nothing to do with me”. 4 She was then arrested. 5 6
Douglas was interviewed and answered ‘no comment ’to all questions asked of her. 7 8 SUBMISSIONS & MATERIALS CONSIDERED 9 10
I have read with care the Prosecution Submissions2, the materials and authorities 11 attached, as well as the Defence submissions dated 29th January 2021 and the 12 materials and authorities attached. I have also read a number of character references 13 and a report from HMPS Fairbanks. 14 15
I have also had the benefit of hearing oral submissions to augment the written 16 submissions. 17 18 SENTENCING GUIDELINES 19 20
The Court must first consider and identify this Court’s principled approach to 21 sentence. Guidance in relation to this is embodied in the Cayman Islands Sentencing 22 Guidelines. They provide a framework for the proper exercise of judicial discretion 23 promoting consistency of approach and the identification of factors which materially 24 impact upon the assessment of the seriousness of an offence. 25 26 27 28 2 Undated ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 9 of 21
Paragraph 2 of the Cayman Islands Sentencing Guidelines provides that in 1 considering the seriousness of any offence, the court will consider the offender's 2 culpability in committing the offence and any harm which the offence caused, was 3 intended to cause or might foreseeably have caused. 4 5
I have considered and applied the guidelines to assess the category of culpability and 6 harm in this case. I remind myself that, to quote the guidelines: 7 8 “The culpability of the offender in the particular circumstances of an individual 9 case should be the initial factor in determining the seriousness of an offence”. 10 11 12
I have had particular regard in this case to para.3.4 and the Guidance on the Custody 13 Threshold. 14 15
The Cayman Islands Sentencing Guidelines do not provide specific guidelines in 16 relation to the offence before the court. 17 18
There are such Sentencing Guidelines in England and Wales (SG-E&W). The 19 applicability of the Sentencing Guidelines in England and Wales are governed by 20 statute. They are not law in themselves, and therefore are not directly applicable in 21 the Cayman Islands. However their assistance and application in this jurisdiction is 22 provided for in the Cayman Islands Sentencing Guidelines, which states: 23 24 “Those [SG -UK] guidelines have been regularly referred to and adopted by the 25 courts into the laws of the Cayman Islands, with appropriate adjustments” 26 27 28
Whilst having considered the SG-E&W for the offence fraud, however, they in my 29 view are of limited assistance. I have come to this determination having reflected the 30 authorities referred to including R v Douglas and Hamilton3 an application for leave 31 3 [2016 (1) CILR Note 13] ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 10 of 21 to appeal against the sentence of the late Quin J in the Grand Court with respect to 1 the same defendant Judith Douglas. 2 3
The circumstances of the case are that in May 2015, again after a change in 4 representation, Judith Douglas asked to be re-arraigned and pleaded guilty to 9 5 counts of obtaining property be deception over a 9-month period in the total sum of 6 CI $20,500. 7 8
Although her guilty plea was entered over 3 years after the indictment was laid 9 against her, Quin J reduced her sentence by 25%. 10 11
The Court considered authorities including R v Ebanks (Paul Hume) (specifically 12 considered by this court); also the 2002 Statement on Tariffs and Guidelines for 13 Sentencing for Certain Offences 4 for theft offences and the UK Sentencing 14 Council’s Definitive Guideline on Fraud, Bribery and Money Laundering 15 Offences and concluded: 16 17 “The starting point for these scam immigration offences, regardless of the plea, 18 should be four years – with a range of sentence from 18 months to 7 years, 19 depending on the aggravating and mitigating factors.” 20 21 22
The CICA considered the correct approach in terms of the SG - E&W and also the 23 well-known case of Barrick (John)5 when considering an application for leave to 24 appeal against sentence. Moses JA stated: 25 26 “The essential case against her is that, notwithstanding that she was right at the 27 centre of this dishonest scheme, nonetheless the sentence was manifestly 28 excessive and that the starting point should have been something in the region 29 of 18 months. The argument was based on English cases, particularly Barrick 30 1985, 81 Cr. App. R. 78 and Clarke 1998, 2 Cr. App. R. 137. 31 32 4 The Chief Justice’s Sentencing Guidelines 5 (1985) 81 Cr. App. R. 78 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 11 of 21 Those were cases of where the essence of the offence was a breach of trust which 1 support the starting point identified by this applicant. These echoed submissions 2 made by the counsel to the judge at the sentencing hearing. The judge had 3 rejected any analogy with those cases and indeed rejected any assistance to be 4 derived from sentencing guidelines in the United Kingdom concerning fraud, 5 bribery and money laundering offences, all of which, counsel submitted, justified 6 a much lower starting point. The guidelines might do so and Barrick 1985, 81 7 Cr. App. R. 78 and Clarke 1998, 2 Cr. App. R. 137 undoubtedly would justify a 8 lower starting point. But, in the judge's view, quite rightly in our view, they were 9 of no assistance at all. He put it this way: 10 11 "This is a small jurisdiction. These dishonest offences attack the 12 integrity of our immigration laws and immigration procedure. These 13 offences tarnish the reputation of the Cayman Islands. The victims were 14 all on work permits and subject to the roll over. It is not surprising that 15 they fell for this most cynical of scams as they sought and paid for the 16 security they mistakenly thought purported Permanent Residence would 17 provide for them. The Court must impose a punishment to reflect the 18 gravity of the offence and act as serious deterrent to others who may be 19 contemplating such dishonest conduct". 20 21 Moses JA repeated later in his judgment: 22 23 "The deception was the most cynical exploitation of vulnerable and unsuspecting 24 victims". 25 26 We agree with the judge's approach. On that approach it is quite impossible, in 27 our judgment, to argue that the sentence of two and-a-half years, even after a 28 plea of guilty and allowing for 25 percent, was excessive. Indeed, on some this 29 appellant had not been in trouble before and was a lady of 50. 30 31 For those reasons, in our view, it is not arguable that the sentence was 32 manifestly excessive or the judge misdirected himself as to the correct approach. 33 He did refer to other cases, whether they were relevant or not we need not decide 34 in this case. In our judgment, the sentence was the least he could properly pass 35 in the correct view he took of the facts, it might have been regarded as lenient. 36 The judge, however, did take into account the fact that and we refuse permission 37 to appeal”. 38 39
Bearing in mind the reduction of the sentence by 25%, this equates to a sentence 40 before plea of 3 years’ and 4 months’ imprisonment. At the time of sentence The 41 Defendant presented as a person of hitherto good character. 42 43 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 12 of 21
To set this against the SG-E&W - such offending would, it appears fall, as a Category 1 1A offence, with a sentence starting point of 7 years and with a range of 5-8 years6. 2 3
In relation to Culpability: It is submitted on behalf of defendant that her culpability 4 is reduced, as she only benefited to a proven degree; that being as a consequence of 5 only “keeping” KYD$16,500. 6 7
The Crown’s position is that they do not know what Judith Douglas did with the cash 8 or whether she shared it with others. What they can establish to the criminal standard 9 is that Nathaniel Robb gave all the cash directly to Judith Douglas and to no one else. 10 The Crown have undertaken financial investigations into known bank accounts of 11 the defendant. No significant movement of funds could be identified, nor any 12 significant assets or lavish lifestyle. 13 14
Judith Douglas was, at the very least, the sole conduit for just over KYD$1.9 million 15 on 472 occasions. It was she who made and continued to make the false and 16 dishonest representations and excuses to Nathaniel Robb to secure all the funds. It 17 was she who sought documents from him and reassured him of the legitimacy of the 18 scheme. This is placed in the context of her being, as described by the CICA, “right 19 at the centre of this dishonest scheme.” For the previous scheme of dishonesty she 20 received the 2.5 year sentence. In essence this is an identical scheme, in terms of 21 pedalling falsehoods in relation to Caymanian Status to obtain money. She was well- 22 practiced and adept at presenting a believable front. She was therefore aware of the 23 complete extent of the dishonest scheme playing a pivotal role – and even 24 committing these offences whilst on bail. 25 26 6 (Sentencing Council; Definitive Guideline-Fraud) ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 13 of 21
The court accepts that her culpability may be reduced to reflect her reduced 1 immediate financial benefit, however, for the reasons set out above, this is of limited 2 import. 3 4
In relation to Harm: The gravamen of this case is not simply measured by financial 5 loss, although it is significant in this case, but by the fact that the dishonest 6 representations centre upon the ability to provide Permanent Residency, Caymanian 7 Status and a Caymanian passport. The whole dishonest scheme calls into question 8 the integrity of the Caymanian Permanent Residency process and standing. The 9 scheme flies in the face of the very Constitution of the Cayman Islands which 10 declares the Islands as fostering the highest standards of integrity in the dealings of 11 the private and public sectors. 12 13
The Cayman Islands is, quite rightly, held in high esteem and such a privileged 14 position is not one that should ever be compromised or undermined by such schemes 15 which embody dishonesty and corruption. 16 17
The Court does reflect that, in this case, it was one individual who was enticed 18 unwittingly into the dishonest scheme – as opposed to cases the court has dealt with 19 in the past in which a large number of individuals were involved. 20 21 OVERALL TERMS OF IMPRISONMENT 22 23
As Judith Douglas was not sentenced for the previous offence prior to the 24 commission of the instant case, it could be viewed as appropriate to look at all 25 offending and overall incarceration in the round. 26 27
It is legitimate for this court, when considering totality in terms of the sentence Judith 28 Douglas faces, to reflect upon what the overall, just and proportionate sentence 29 would have been if she had been sentenced to this offence when sentenced to the 30 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 14 of 21 period of 2.5 years; that is, to, in effect, treat both cases as a course of criminal 1 conduct, of a similar type, whilst, of course, reflecting upon the fact that she 2 committed this offence whilst she was on bail for the prior offending. 3 4
In my judgement all of her offending would have her sentence go to the very top of, 5 and indeed beyond, the 7-year range identified by Quin J. The features of culpability 6 and harm identified by Quin J., may not have countenanced a financial loss of 7 KYD$1,946,437.00 – remembering that every dollar of that money handed to the 8 defendant in cash (save one cheque of KYD$2,439.03) on a total of 472 occasions. 9 10
To place this into the context: When she was sentenced to the term of 2.5 years by 11 Quin J., she had been of good character and she was then 50 years old. 12 13
This court poses the question: What is the correct consecutive period of 14 imprisonment to that 2.5 years, to achieve a just and proportionate overall period of 15 imprisonment for this overall course of criminal conduct? 16 17
In answering that question the Court is moved towards a “check and balances” 18 approach to achieve the proper sentence 19 20 MITIGATION 21 22
The Cayman Islands Sentencing Guidelines at paragraph 9 and s.4 Alternative 23 Sentencing Act 2008 sets out the court’s approach to mitigating factors. In 24 sentencing an offender, the Court should take into account mitigating factors relevant 25 to both the offence itself and the offender. 26 27 28 29 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 15 of 21
The Defendant is now in her mid-fifties. She had been of good character before being 1 sentenced baby Quin J. in 2016. She had not been sentenced for those offences when 2 she committed this offence. Therefore the effect of a sentence, and the rehabilitation 3 process had not yet bitten. Such is recognised by this court in its determination of 4 the correct approach and structure to this sentencing, 5 6
I have a number of character references and I have reflected carefully upon all the 7 personal mitigation presented to the court. The court has considered all the material 8 in support of this defendant. References so often provided to a court are from 9 individuals who are not aware or cannot come to terms with the existence or extent 10 of a defendant’s criminality. Judith Douglas has the benefit in this regard of a 11 comprehensive letter of reference from Claira Range (Deputy Director, HMP 12 Fairbanks). This, when read in conjunction with the supporting attachments, 13 provides a positive reflection on Judith Douglas’ response to incarceration, 14 rehabilitation and assistance with other detainees - this person, being fully aware of 15 Judith Douglas’ criminality. To quote Ms. Range: 16 17 “Judith is a rare combination of academic brilliance, complemented by strong 18 social skills, self- motivation and a determination to make a difference in her 19 unfortunate circumstances and the lives of her peers through the "teaching 20 sewing programme" to which she has many students and with the support of 21 HMP Fairbanks rehabilitation programme sends a clear sign that her 22 conformity to the prison rules, support, guidance and motivation in conjunction 23 with her positive attitude, inner discipline and drive to be successful in all her 24 endeavours regardless of her circumstances provides her with the secure bridge 25 required for self-reform”. 26 27 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 16 of 21
Whilst it is an aggravating feature that Judith Douglas committed these offences after 1 the offences she was sentenced for in 2016, the chronology does mean that the 2 defendant was never incarcerated and/or sentenced before these offences. It is now 3 that the rehabilitative element of a sentence as had the opportunity to bite. 4 5 CONDITIONS IN PRISON DURING THE COVID-19 PANDEMIC 6 7
The Defence submit at para19 of there submissions: 8 9 “[19] The court is also invited to apply a reduction to the sentence 10 imposed to reflect the harsher nature of serving a prison 11 sentence during the COVID-19 pandemic.” 12 13
This Court finds favour with this submission, such being enunciated in the well- 14 known 2020 case of Manning7 in which the Court of Appeal of England and Wales 15 said: 16 17 “In accordance with established principles, any court will take into account the 18 likely impact of a custodial sentence upon an offender and, where appropriate, 19 upon others as well. Judges and magistrates can, therefore, and in our 20 judgement should, keep in mind that the impact of a custodial sentence is likely 21 to be heavier during the current emergency than it would otherwise be. Those in 22 custody are, for example, confined to their cells for much longer periods than 23 would otherwise be the case—currently, 23 hours a day. They are unable to 24 receive visits. Both they and their families are likely to be anxious about the risk 25 of the transmission of COVID-19.” 26 27
It is clear that in so many ways this jurisdiction should be rightly proud of the way 28 it has dealt with Covid-19. This includes how it has managed those in custody. 29 Indeed from the glowing reference on behalf of this Defendant, written by the 30 Deputy Director of HMP Fairbanks, the rehabilitation projects, gym and outdoor 31 activities to assist with welfare have continued. 32 33 7 [2020] EWCA Crim 592 at paragraphs 41 and 42 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 17 of 21
Covid-19 has, for quite understandable reasons, restricted visiting. This, no doubt, 1 has had a profound effect on those detained and their families - such being 2 recognised in Manning. 3 DELAY 4 5
The Cayman Islands Constitution 2009 is a cornerstone of democracy in the 6 Cayman Islands. Paragraph 7 enshrines minimum rights - protecting the rights of 7 every accused person to a fair trial, and within a reasonable time. 8 9
The CICA determined that due to the conduct of the trial judge in this case there was 10 a fundamental breach of that right during the trial of this case - such conduct being 11 described at para.66 of the CICA judgement: 12 13 “…the judge displayed persistent rudeness towards the Appellant, laced with 14 aggressions, hostility and on one occasion sarcasm.” 15 16 17
This lead the CICA to, on the 5th October 2020, quash the conviction. She had been 18 convicted on the 9th July 2019 and sentenced to a 10-year term of imprisonment - the 19 maximum sentence. 20 21
She had been serving her sentence of 10 years as a result of an unsafe verdict for 22 approximately 15 months. There was a clear and understandable delay for her case 23 to be heard by the CICA - caused by the court’s operational constraints occasioned 24 the onset of the Covid-19 pandemic. Understandable though it may have been, it 25 does not detract from the obvious upset and anxiety doubtlessly felt during the course 26 of her unfair trial and the wait for her appeal to be heard. 27 28
Of course, a portion of the overall delay from arraignment, was substantially due to 29 the defendant maintaining that she acted honestly. 30 31 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 18 of 21
That being said I am in no doubt that there should be a reduction in the sentence 1 reflecting the delay, stress, upset and anxiety on the basis referenced in paragraph 71 2 above. 3 4 REDUCTION FOR THE PLEA OF GUILTY 5 6
It is incontrovertible that a reduction in the sentence should be given to reflect a plea 7 of guilty. Such well-recognised position can be found at para.10 the Cayman Islands 8 Sentencing Guidelines of October 2015. Para. 10.1 reads: 9 ‘Once the court has determined the sentence to be imposed, the court is required 10 to give consideration to a reduction in the sentence for any guilty plea. The 11 reduction principle is employed because a guilty plea avoids the need for a trial, 12 saves considerable costs and resources, and in the case of an early plea, saves 13 victims and witnesses from the ordeal of giving evidence. It also acts as an 14 encouragement to others to plead guilty where appropriate.’ 15 16 17
As to the level of reduction, assistance is sought from para.10.5 of the Guidelines: 18 19 “10.5 Determining the Level of Reduction 20 21 In order to determine the appropriate reduction in sentence for a guilty 22 plea, the court should take into account: 23 24 (a) the stage in the proceedings for the offence at which the offender 25 indicated his intention to plead guilty and 26 27 (b) the circumstances in which this indication was given. 28 29 The level of reduction should be expressed as a proportion of the total 30 sentence imposed, with the proportion calculated by reference to the 31 above factors. The amount of reduction is to be gauged according to a 32 sliding scale ranging from a recommended one third (where the guilty 33 plea was entered at the first reasonable opportunity in relation to the 34 offence for which sentence is being imposed), reducing to a 35 recommended one quarter (where a trial date has been set) and to a 36 recommended one tenth (for a guilty plea entered at the ‘door of the 37 court ’or after the trial has begun).” 38 39 40
The following is submitted on behalf of this defend that at para [25] and [26] of the 41 written submissions on behalf of the defendant: 42 43 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 19 of 21 “[25] In determining the amount of credit to be afforded to this defendant, the 1 court is invited to disregard the unfair trial which took place in July 2 2019 and any consequential delay to these proceedings. In overturning 3 that conviction, the Court of Appeal has in effect declared those 4 proceedings a nullity. The defendant should not be disadvantaged as a 5 consequence. 6 7
The defendant should be afforded the same amount of credit as any other 8 defendant who changes their plea to guilty in the week before her trial 9 is due to commence. In accordance with the ‘sliding scale’ as set out in 10 the aforementioned guidelines, it is submitted that a discount in the 11 region on 25% is appropriate in such a case.” 12 13
This Court rejects the bald assertion that the first appealed trial was a “nullity.” It 14 was the conviction which certainly was. 15 16
Indeed it is of note the court received an application from the defence for copies of 17 transcripts of all the evidence of Nathaniel Robb from that trial. This was provided 18 at, no doubt, considerable cost and it was material which was indeed required for the 19 “new” trial - should there have been any evidential inconsistencies. 20 21
To consider the issue of delay I have looked at the history of the case. I have 22 considered the length of time the Defendant had to consider her position - 23 commencing at the time she was arrested in 2016. Also, the defendant appreciated 24 the case against her as she had the case clearly put to her when giving evidence 25 during the first trial. I have also considered that the defendant was represented by 26 different counsel commencing in November 2020. 27 28 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 20 of 21
Taking all this into account, a week before trial is, nonetheless, to be properly 1 described as the “door of the court.” Considerable costs and resources had been 2 consumed by the stage of the plea of guilty. 3 4
I reject the submission on behalf of the Defendant that the court should consider a 5 discount in the region of twenty-five percent (25%) as appropriate in such a case. I 6 also reject the submission at para [28] of the defence submissions that substantially 7 more than minimal credit” should be considered. 8 9
The reduction will be one of ten percent (10%). This reduction is considered based 10 on the unfair trial and the additional stress upon the Defendant identified above. 11 12 VICTIM IMPACT 13 14
I have had regard to the effect upon the victim of this crime. Nathaniel Robb paid 15 over KYD$1.8 million. It had a profound effect financially and, no doubt, 16 emotionally. Nathaniel Robb was left in a position of impecuniosity; unable to even 17 pay his bills. 18 19 COMPENSATION 20 21
I have considered my power pursuant to s.33 of the Penal Code. However it is wrong 22 to make such an order when the offender lacks the means to meet it. 23 24
It is of note that the Defendant sets out in her basis of plea that she passed on the 25 majority of the money to an unnamed individual. Although that does not aggravate 26 her sentence, it would have provided powerful mitigation if she had revealed who 27 that person was. This perhaps identifying a possible avenue of financial redress for 28 Nathaniel Robb. 29 ____________________________________________________________________________________ Sentence Judgment. R v. Douglas (Judith Francea). Ind. 93/2017. St. John-Stevens J. (Actg.). Date: 8th June 2021 Page 21 of 21 SENTENCE 1 2
The sentence of this Court is five (5) years’ imprisonment. 3 4
Any period the defendant has spent on remand for this case shall count towards this 5 sentence. The Defendant may also be eligible for early release in pursuance of the 6 Conditional Release Act. 7 8 9 10 Dated this the 8th June 2021 11 12 13 Justice St. John-Stevens 14 Acting Judge of the Grand Court 15