Field JA, Martin JA, Morrison JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
CRIMINAL APPEAL 4/16 S
(Ind. 90/15, 90/15A & B)
HER MAJESTY THE QUEEN
Respondent
- and
Otis Myles
Appellant
Before:
The Hon John Martin QC, Justice of Appeal
The Hon Sir Richard Field, Justice of Appeal
The Hon Dennis Morrison, Justice of Appeal
Appearances: Appellant in person and Candia James for DPP
JUDGMENT
Revised from transcript of oral judgment 7 March 2017 and Approved
Released 3 May 2017
MORRISON, J.A.
The appellant was convicted in the Summary Court of three burglaries in three separate
locations. He was subsequently committed to the Grand Court for sentencing, pursuant
to section 7(2)(a) of the Criminal Procedure Code (2013 Revision). Before the hearing in
the Grand Court, the appellant had filed appeals against all three convictions in the
Summary Court. On the 28th of June, 2015, the appeals from the second and third
convictions were abandoned before Mr. Justice Swift in the Grand Court. On that date
the appellant was represented by counsel. His appeal against the first conviction was
heard and dismissed by Mr. Justice Mettyear on the 11th of August 2015.
In this Court today we are concerned with the result of the sentencing hearing which
was heard before Mr. Justice Malcolm on the 24th of March 2016. On that day, Justice
Malcolm sentenced the appellant to a total of seven years and nine months'
imprisonment, having explicitly taken into account the principle of totality. The appellant
now seeks leave to appeal against the sentences imposed by the judge.
The circumstances of the burglaries for which the appellant was convicted, which we
take from the judge's admirable sentence ruling, were as follows:
Charge number 00387 of 2014 related to a burglary committed on a dwelling
house in the Prospect area on the 23rd of December, 2013. To this charge the
appellant pleaded not guilty and on the 19th of February, 2014 he was released
on conditional bail which included a curfew condition between seven in the
evening and six in the morning. We will describe this as the "first burglary".
Charge number 3746 of 2015 related to a burglary committed on a business
place on Seymour Drive, George Town, which were commercial premises on the
24th of May, 2015. This burglary was committed whilst the appellant was on
conditional bail arising from the first burglary. We will describe this as the
"second burglary".
Charge number 3745 of 2015 related to a burglary of the First Baptist Christian
School on the 9th of June 2015. The alarm of the school was triggered at 4:00
a.m. Consequently, this burglary was committed not only whilst the appellant was
on conditional bail, but it was also committed in breach of his curfew. We will
describe this burglary as the "third burglary".
The first burglary was regarded by the judge as the most serious. Residential property
in the Prospect area was burgled and ransacked at some time between the 18th and
the 23rd of December 2013 while the owners, a married couple, were away from the
Cayman Islands for the Christmas holidays. A number of items were taken from the
house including, most significantly, a safe containing jewellery valued at between US
$125,000 and $150,000, jewellery which had been collected by the wife over many
years and held great sentimental value to her and was described by her husband as her
"life jewellery collection". In addition, title deeds, identification papers including a
passport and a birth certificate, a will, three watches, a pair of night-vision binoculars
and $150 in cash were also stolen. Apart from some items; such as, the television set,
fishing rods, a laptop and a bag, generator and some diving equipment, which were
found abandoned nearby, none of the items taken was recovered. The appellant's
fingerprint was found on a tin in the house and he was arrested and interviewed.
Although he denied any involvement in the offence, he said that he had assisted a man
in the area to move some property.
The second burglary occurred on the 24th of May, 2015 while the appellant was on
conditional bail for the first. The door to commercial premises in George Town was
forced open sometime prior to 7:30 in the morning. When challenged by a worker at the
enterprise who was on the premises, the intruder dropped an item of property belonging
to the operators of the business on the property and ran away. Subsequent examination
of CCTV footage identified the appellant as having been in the area at the material time
and his fingerprints were found on the outside and inside of the rear door of the burgled
premises. No property appears to have been taken during this burglary.
The third burglary occurred early on the 1st of June 2015 at the First Baptist Christian
School in George Town. Again, no property appears to have been taken, but a second
floor office was entered and cabinets and drawers were opened. CCTV footage showed
that at 3:31 a.m. a car which the appellant had the use of was seen to travel in the
direction of the school and then, at 4:00 a.m., was seen to travel away from it. The DNA
on an item of clothing - a headband - found on the roof top of the school matched that of
the appellant.
The appellant's social enquiry report showed him to be 29 years old with a record of 21
previous convictions; eight of them for burglary and five for handling stolen goods. He is
the father of a one-year old child and he has had a history of drug abuse. A preliminary
issue to which the judge was invited to give attention was whether the 2015 Cayman
Islands Sentencing Guidelines, which became effective on the 2nd of November 2015,
were applicable to the appellant. The submission made on behalf of the appellant was
that since all three burglaries pre-dated the introduction of the guidelines, they ought not
to apply to this case. Instead, it was submitted the Court should have regard to the
Chief Justice's Statement on Tariffs and Guidelines for Sentencing of certain offences,
which were issued on the 16th of January 2002.
According to those guidelines, for burglary without aggravating circumstances, the basic
measure was that a second or subsequent offence would attract a tariff of three to four
years' imprisonment.
In reliance on the decision of the Court of Appeal of England and Wales in the case of
the R v Chunxia Bao [2008] 2 Cr, App. R (S.) 10 the judge ruled that a sentencing judge
in this jurisdiction can have regard to the 2015 Cayman Islands Sentencing Guidelines
even where the offences occurred before the guidelines were issued.
The judge also considered another issue raised on behalf of the appellant, which was
the question of the prevalence of the offence of burglary. This had been raised by the
prosecution as a possible aggravating factor which should be taken into account. The
judge considered that the evidence of prevalence before him was not conclusive and
that for the purposes of the case he did not propose to take prevalence into account as
an aggravating feature. In the result, for the first burglary, the judge sentenced the
appellant to six years, nine months' imprisonment having regard to the starting point of
six years in the 2015 guidelines and the aggravating factor of the appellant's bad record.
For the second burglary, the judge took into account the fact that nothing was stolen,
but considered the fact that the appellant was on bail at the time to be an aggravating
factor and therefore sentenced him to nine months' imprisonment, which was three
months down from the starting point of 12 months.
On the third burglary, the judge again took into account the fact that nothing was stolen;
however, he considered that because the appellant was on bail and in breach of his
curfew at the material time, a sentence of 12 months' imprisonment should be imposed.
Finally, in considering whether the sentences should run concurrently or consecutively,
the judge said this at paragraph 32 of his sentence ruling:
"All three sentences should be consecutive, but with an eye on totality, I make
the 12 months and nine months' sentences concurrent but consecutive to the six
years, nine months. That makes a total sentence of seven years, nine months'
imprisonment. Time spent in custody will be deducted from his term of
imprisonment".
Before us this afternoon the appellant, who has appeared in person, has submitted that
the sentence was too much. He described it as "harsh" and he told us that in his view
he had not been dealt with properly on the question of sentencing.
We have had the benefit of a very helpful written submission from Ms. James for the
Crown in which it was submitted that, firstly, the judge was correct to apply the 2015
guidelines and that, secondly, the sentences imposed by the judge were appropriate in
light of the guidelines and the circumstances of the offences.
Because it gives rise to a question of principle, we will give brief consideration to the
issue of the applicability of the 2015 guidelines. As the judge observed, this issue has
arisen in England and Wales, particularly in connection with what are now described as
"historic sex crimes", where defendants often fall to be sentenced for offences
committed many years previously, at times when -- to quote the judge -- "maximum
sentences were lower in many cases and the sentencing regime was more lenient".
Two decisions illustrate what is now the accepted approach to the problem. The first is
the case of R v Chunxia Bao, upon which the judge relied. Delivering the judgment of
the Court of Appeal in that case, Aikens, J said this at paragraph 17:
"The guidelines published by the Sentencing Guidelines Council are reflections of
current sentencing policy and practice. They are not rules of law. In that respect
they are no different from the status of guideline cases in this Court which were
used to provide assistance on sentences in different types of cases. The tariff
might change from time to time but so long as the sentencing regimes on
maximum sentences have not changed, a judge would be obliged to follow the
most recent guideline case handed down before sentencing. This would be so,
even when the new guideline on the tariff had been promulgated after the offence
or conviction or guilty plea, as here".
More recently, this position was reiterated in greater detail by the Court of Appeal in the
case of the R v H and others [2012] Cr App.R. (S.) 21 to which Ms. James also referred
us. In that case, it was held that the defendant must be sentenced in accordance with
the sentencing regime applicable at the date of sentencing.
In the light of these clear statements of principle, we accordingly consider that the
decision of the judge that the 2015 guidelines are applicable to this case is correct and
fully justified by authority.
The only remaining question is therefore whether the sentences imposed by the judge
were manifestly excessive.
In respect of the first burglary, applying the relevant guidelines for burglary in a dwelling
house, the judge considered this to be a category one burglary with medium culpability.
The recommended starting point of six years was therefore applied and increased by
nine months due to the appellant's criminal record. In our view the sentence was not
only well within the guidelines, but also appropriate for the circumstances of the case.
We do not think that any complaint can possibly be made in relation to the judge's very
balanced approach to passing sentence in respect of either the second or the third
burglaries. Accordingly, for the reason we have given, the application for leave to
appeal is refused.