Dan Danvar Kelly v R

¶ <doc> IN THE CAYMAN ISLANDS COURT OF APPEAL CRIMINA! Dan Danvar Kelly -and- EAL L APPEAL 7/2017 IND. 52/2011 C02743/2011 Appellant BEFORE: Appearances: Date of Hearing: Reasons Approved for Release: HER MAJESTY THE QUEEN The Rt. Hon Sir John Goldring, President The Rt. Hon Sir Bernard Rix, Justice of Appeal The Rt. Hon Sir Alan Moses, Justice of Appeal Mr. Laurence Aicolfi of Priestleys on behalf of the Ms. Candia James for DPP 8 November 2017 24 June 2018 Respondent Appellant Revised from: MOSES JA:

¶ [1] This is an ap- appellant of of an imitati- Quin was on JUDGMENT transcript of oral judgment 8 November 2017 Released 20 June 2018 appeal against a sentence of five years imposed fol- 3rd October 2016 when he was convicted of robbery. The senten- on firearm with intent to commit robbery. The sen- 12th January 2017. owing a trial on this ry and possession ence by Mr Justice Page 1 of4 </doc>
<doc> 2. The offence that day, the amount, CI-

¶ [3] During the helping him took place as long ago as 29th September 2010. appellant, in the company of a co-defendant Derri an Bakery, taking cash from the cash register.

¶ [400] course of that robbery, the appellant used a modi- fied and struck the cashier over the head with his self to the contents of the cash register. On the morning of k Simpson, robbed it was not a large held flare gun as an hat weapon before

¶ [4] Following the gave what is murder until having given man of 18 at bail, having information.

¶ [5] His co-accu- offence (3 A sentenced I imprisonment. at offence, this appellant was caught, and, whilst he sentencing judge accepted was helpful inform- lated to this offence. Having done so, as the ju- that assistance, this appellant - who is young mat the time with no previous convictions - filed the j- been in fear as a result of what was accepted. Thus there was considerable delay before he was sed, pleaded guilty approximately two years and to July 2013) whilst this appellant was away from a different judge. Mr Justice Malcolm, to a senten- t. being interviewed, tion in relation to a the accepted, and n, and was a young jurisdiction whilst on to be that helpful tried. en months after the he heard, and was 'nice of three years'

¶ [6] The argum- submission following a appellant's between the

¶ [7] It is also arg- appropriate. ment is therefore advanced on his behalf, in part by Mr. Aiofi, that the judge, in sentencing this ac- cord, failed to take sufficient account of the far lov- co-accused and therefore there is an unjust a two sentences. areful and helpful appellant to five years of sentence of this nd unfair disparity gation would be an sufficiently to take Page 2 of 4 </doc>
<doc> into account the fact that helpful assi-

¶ [8] Helpful as in trial that foll- was dispari- give due we-

¶ [9] So far as we the approach be applied for when consis- In the parti- sentence, Coleman a-

¶ [10] In this case, the Court of those cases disparity. Be- and his co- spirity is concerned, there have been at times of the courts in England and Wales as to the We take the view that it is not often helpful to see hearing disparity, but rather to see whether the sen- cular circumstances that a co-accused received a our attention was drawn to the decision of the and Petch EWCA Crim 2318, particularly at para.9. we need not delve more into trying to reconcile tri- Appeal has not interfered because the other sent- er were it does interfere because it thinks there cause, in this case, therewas a clear difference be- of statements as to principle that would to apply a principle hence is excessive. significantly lower Court of Appeal in ose cases in which nce was too low, or e too great a ween this appellant

¶ [11] For a stan- absconded

¶ [12] Secondly, if violence up- the effect on and because would only the co-accused pleaded guilty whereas this did not plead guilty, but fought the case. was this appellant who produced the imitation for on the cashier. Neither the trial judge, nor we, has the cashier, although it must have been terrifying. e the cashier had left the jurisdiction, coming from emphasise an observation by the President during appellant, having rearm and inflicted any evidence as to to put it at its least, the Philippines. We in the course of this Page 3 of4 </doc>
<doc> argument, guidelines witness is n

¶ [13] The judge - 3 where the

¶ [14] The judge commercial has been imprisoned. and we have to remain loyal to this - placed this robbery within that statement itself. There is a starting point of five years and range of four also referred to a decision of this court where for businesses - which we note are particularly vulner- sect categories and

¶ [15] We take the effect upon that very within category to eight. or robbery of small able on this island - and weapon

¶ [16] The appellant,

¶ [15] We take the been appro-

¶ [16] The appellant, were all miti- we do not th- years, and I cannot prop- s are used, an accused must expect at least five yea- view that a sentence on a trial in the region of early rview that a sentence on a trial in the region of early triate.

¶ [15] We take the nt, as we said, was a young man of 18, had not been considerable assistance to the police about that gating factors that justified reducing the sentence link it arguable that it was excessive to reduce it by in those circumstances we take the view that the sen- in those circumstances, the app- tence impugned. In those circumstances, the ap- pears imprisonment. years would have been appropriate. In in trouble before, other matter. Those of eight years, but no more than three intent of five years each dismissed. Page 4 of 4 </doc>