Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0064/2013 THE QUEEN V ODAIN LLOYD EBANKS COURTNEY MASON BRYAN IAN FERNANDO ELLINGTON Appearances: Mrs. Tanya Lobban-Jackson for the Crown Ms. Lucy Organ of Samson & McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Submissions heard: 12th December 2013 SENTENCE RULING
On the 18th October 2013 the Defendant, Courtney Bryan, pleaded guilty to both counts on this Indictment – one count of Robbery contrary to s.242(1) of the Penal Code (2010 Revision) and one count of Possession of an Imitation Firearm with Intent to Commit an Offence contrary to s.18(6) of the Firearms Law 2008 Revision.
Both charges relate to the robbery that the Defendant committed along with three others¹ on the 23rd September 2013.
The particulars of the two counts on this Indictment are that Mr. Bryan, and another², entered Chisholms’ Supermarket at #1240 North Side Road, North Side, Grand Cayman, and stole 11 packets of Benson and Hedges cigarettes, one 14 carat gold chain, one blue topaz pendant, one silver stainless steel ESQ watch, one black Nokia mobile telephone and CI$300.00, all-together valued at CI$1,495.00, from Rhoda and Sheena Ebanks, and at the time of doing so, and in order to do so, put or sought to put Rhoda Ebanks and Sheena Ebanks in fear of being then and there subjected to force, whilst having in their possession an imitation firearm with intent to commit an offence, namely robbery. SUMMARY OF FACTS
It is the Crown’s case that prior to the robbery, two of the four Defendants had entered the Chisholms’ Supermarket and purchased one patty. Their behaviour – especially upon leaving the Supermarket after purchasing the patty - had aroused the suspicion of the 83-year-old Mrs. Rhoda Ebanks, the store owner, who was manning the store along with her granddaughter, Ms. Sheena Ebanks. Mrs. Rhoda Ebanks then decided to take note of the registration number of the motor car – 111-109 - in which the two males who entered the Supermarket had arrived. Two other males had remained in the vehicle. ¹ Two other Defendants are charged on this Indictment and one other Defendant, a Young Person, is charged for these offences on a separate Indictment. In total, four Defendants are charged in relation to this robbery. ² The Young Person charged on a separate Indictment pleaded Guilty to Count 1 of this Indictment on the 1st November 2013. At the time of preparing this Ruling discussions are in train between the Crown and Defence in relation to the Young Person’s plea to Count 2.
The Defendant and the Young Defendant entered the Supermarket some 15 minutes after the first visit of the two men who purchased the single patty. The Defendant and the Young Defendant entered the store from the beach side, which is at the back, and were wearing black-coloured ski masks which fully covered their faces – leaving only their eyes and mouths exposed. The robbers were also wearing gloves.
The Defendant’s co-robber focused his attention on Mrs. Rhoda Ebanks and shouted: "Give me the money." The Defendant Mr. Bryan, carrying what was described as a silver-coloured handgun went around the counter and took up the loose change on the counter. Next, the Defendant, pointing the weapon at Ms. Sheena Ebanks’ collarbone shouted: "Give me your jewelry" The Defendant subsequently pulled her necklace from around her neck, which broke and fell to the ground. Ms. Ebanks then handed over to the Defendant her ESQ wrist watch with diamonds. After Ms. Sheena Ebanks was forced to show the Defendant how to open the cash register, the Defendant took the money from the register, took up cigarettes and a cell phone and all the items were placed in a blue draw string bag. Before leaving, one of the robbers shouted: "Next time make sure you have more."
The Complainants contacted the police and gave them a description of the getaway car and its registration number. The police officers at Bodden Town Police Station – WPC Baker and PC Grant – immediately left in a police car, along with PC Bennett in a second police car, to chase the getaway car. PC Emmanuel Brown set up a roadblock at the Frank Sound junction, and the police helicopter unit was also called into action.
The getaway vehicle was observed turning onto Frank Sound Road and speeding towards East End. The vehicle was chased by the aforesaid police officers on the road and by the helicopter unit. It was observed by the police officers that a number of items were being discarded from the left side of the vehicle whilst driving. It was also later established that an imitation firearm had been thrown into the sea.
The vehicle was finally stopped by police at Rivers Side Plaza in East End. The Defendant and his three companions exited the vehicle and they were shortly afterwards detained and arrested.
The police recovered the diamond ESQ watch at the scene of the arrest and also recovered two cell phones, a black Nokia phone and a number of cigarettes. Though many items were recovered, the pendant valued at CI$450.00 was not recovered. The items recovered were valued at approximately CI$650.00 – with the pendant and the CI$300 cash not recovered.
The Defendant was interviewed under caution on the 25th September 2013. He said that he was asleep during the entire journey and only woke when the vehicle was stopped by the police in the vicinity of the Rivers Side Plaza.
The Defendant made no admissions in his interview with the police, but the Court accepts that he pleaded guilty at the first opportunity when he appeared in the Grand Court with the other Defendants on the 18th October 2013 – some three weeks after the robbery occurred. CROWN'S SUBMISSIONS
Crown counsel, Ms. Lobban-Jackson, highlights the fact that the younger Complainant, Ms. Sheena Ebanks, was scared and began to cry during the robbery. The Defendant pointed the gun directly at Ms. Ebanks and at her collarbone area, and told her to take off her jewelry – yanking the gold chain from around her neck in the process and having the said Ms. Ebanks hand over her watch. The pendant on Ms. Sheena Ebanks’ chain was taken in the process. The Crown submits that Ms. Sheena Ebanks was very shaken by the incident and could not stop crying and the emotional impact of the incident has been severe as she has had to go through some 12 counselling sessions.
Ms. Rhoda Ebanks who experienced the robbery with her granddaughter, Sheena, stated to the Probation Officer: "I am 83 years of age and I still work for a living. These idiots come and take your few dollars instead of trying to work. I get up from 6 a.m. to get to work for 7 a.m. I am there until 7 p.m. and they are idling their time away."
Crown counsel urges the Court to adopt the UK sentencing guidelines as they have been endorsed by the Cayman Islands Court of Appeal in R v. Haylock, Avila, McLaughlin, Watson CICA (Crim) No. 33 of 2010.
The Crown asks the Court to note the degree of force used in this case and the fact that the gun was pointed at the collar bone of the younger Complainant. The Crown points out that whether the firearm is real or an imitation is of no consequence, as the amount of fear is the same and the use of the weapon is an additional consideration. DEFENCE SUBMISSIONS
The Defence accepts that Mr. Bryan’s offence fits into the category of the robbery of a small business and both counsel agree that it is a category 2 offence.
The Defence accepts that the Defendant was carrying an imitation firearm which, after the event, he threw into sea.
The Defence submits that there were not two guns, but will carry the point no further as the Defendant is not seeking to undermine his responsibility for the offence, since he accepts that he had possession of an imitation firearm.
Defence counsel’s first submission is that the Defendant always intended to plead guilty and was anxious to enter his guilty plea at the first possible opportunity. The Defendant apologises to the Court and asks the Court to accept that this is an out of character act. Defence points out that the Defendant has never sought “to shift the blame” and has never submitted a bail application since remanded in custody. Defence counsel therefore asks the court to accord the Defendant the full discount of 33\( \frac{1}{3} \% \) off the sentence imposed for his very early guilty plea.
Defence counsel accepts that although this was a terrifying offence, it was mercifully short lived. Defence counsel also notes that the Defendant made no oral threats to the victims such as “I will shoot you or else”, but, nevertheless, counsel accepts that the use of the firearm was an implicit threat and there was some amount of force used to remove the Complainant’s necklace from her neck. Defence counsel asks the Court to take into account that, again, mercifully, no physical injuries were inflicted or sustained.
Defence counsel accepts that there are two aggravating features namely, the possession of the imitation firearm, and the fact that the Defendant wore a disguise – which both demonstrate an element of planning. Nevertheless, Defence counsel submits that the offence was an impulsive act that lacked sophistication, and the Defendant did not take part in any of the planning; the ruse was simply suggested to him and he played along.
Defence counsel submits that the Defendant was not one of the two men who entered the shop 15 minutes prior to the robbery, even though he fully accepts that he took part in the robbery, he was one of the robbers, and, he had the imitation firearm. Defence counsel points to the fact that the Defendant is only 20 years of age and he is not fully mature or developed. Defence counsel adds that the Defendant’s early years were very difficult – without a relationship with either his father or mother. The Defendant is Caymanian with a Caymanian mother but has spent a considerable part of his young life with his paternal grandmother. He has no relationship with his mother and a very poor relationship with his father. The Defendant went to the United States at a very early age to live with his father but that relationship broke down and he was cared for by his paternal grandmother. In October 2012 the Defendant returned to the Cayman Islands to try to establish a relationship with his mother, but that did not materialize.
Defence counsel points to the extreme remorse exhibited by the Defendant. The Defendant has written to the Court stating that he is sorry for the pain he has caused by his actions. The Defendant also stated that he is sorry he cannot turn back the hands of time and all he can do is stand and "take judgment for his wrong (doing)." The Defendant points to his association with the wrong companions and his dependency on drugs – both ganja and cocaine – as being the source of his criminal behaviour. Defence counsel points to the fact that the Defendant has had a solid educational base but his unstable past has not allowed him to obtain full time employment. In relation to the Defendant's clearly consistent drug use it is disturbing to note that the Defendant has told the Probation Officer that he smokes "five ganja a day" whilst in custody at HMPS Northward. ANALYSIS
When one looks at the offences to which the Defendant has pleaded guilty, they all warrant a significant custodial sentence. The UK Sentencing Guidelines Council states: "It is the element of violence that is the most serious part of the offence of robbery, but it is not the only determining factor. The relative seriousness of each offence depends on factors such as the degree of injury to the victim or the nature and the duration of the threats. The degree of force used is important in determining the seriousness of the offence but the degree of fear which is experienced by the victim is a relevant consideration."
I find that Count 1 comes within level 2 of the United Kingdom Sentencing Guidelines because a weapon was produced and used to threaten the owners of Chisholms' Supermarket. This Court noted in the case of R v. Josh Alexander Bodden Indictment 68 of 2010 dated the 22nd December 2010: "The Court accepts that the Defendant used an imitation gun, but, at the same time, notes that this is a very serious offence, and one which put the Complainant in considerable fear for his life."
Also the Sentencing Guidelines Council states: "Whether the firearm is real or an imitation is not a major factor in determining the appropriate sentence because the amount of fear created in the victim is likely to be the same."
There is evidence before this Court that some planning went into this offence owing to the fact that one of this Defendant’s co-accused3 entered the Supermarket prior to the incident and bought one patty. The inescapable inference is that the first two men went in to “case the joint” to see if the coast would be clear to execute the crime. In addition, the Defendant and his co-robber wore black masks to conceal their identity, had with them a blue draw-string bag in which they carried their takings from the robbery, and the Defendant used an imitation firearm.
The Defendant was 20 years of age at the time of the offence and is classified as an adult offender. The starting point under the UK Sentencing Guidelines Council – which has been adopted by both the Cayman Islands Court of Appeal and the Grand Court – is 4 years in custody, with a sentencing range of two years to seven years, depending on the number of aggravating and mitigating factors.
The President of the CICA, Sir John Chadwick, stated at paragraph 11 in the case of R v. Haylock, Avilla, McLaughlin and Watson: "Nevertheless those who arm themselves with weapons and undertake pre-meditated robbery of small commercial businesses in these islands must expect at least five years’ imprisonment if they are convicted."
Both Crown counsel and Defence counsel accept that this is a level 2 offence under the UK Sentencing Guidelines for which the starting point is 4 years’ custody in relation to a Defendant who pleads not guilty and has no previous convictions.
Aside from the Defendant’s professed remorse and apology to the victims, and the fact that he has no previous convictions, there are few, if any, mitigating factors. 3 Either the Young Defendant charged on a separate Indictment or any of the other two Defendants charged on this Indictment.
I do accept that the Defendant had a troubled upbringing and very little love and support from his parents which, regrettably, is an increasingly common occurrence.
Since leaving school the Defendant has only been employed on a part-time basis for only two weeks. The Defendant submits that he has not sought further employment as he planned to return to the United States.
From the thorough report produced by Probation Officer, Ms. Marvo Callender, we learn that the Defendant states that since his return to the Cayman Islands he has been smoking the incredible number of between 10 to 15 joints of ganja per day. At the time of the offence he states that he owed CI$600.00 for ganja and CI$2000.00 for cocaine. The Defendant admits to using both substances on the day of his arrest and, since being remanded in custody, the Defendant states that he smokes ganja five times per day.
There are many similarities in this case to the recent case of *R v. Aaron McLaughlin*. Again, that was a level 2 offence with a starting point of 4 years' custody. However, in light of aggravating factors the Court held that the appropriate sentence for *McLaughlin* was 5 years, with a 20% discount due to a belated guilty plea.
Like *McLaughlin*, the Defendant was in possession of an imitation firearm which he pointed at the owner in a threatening manner and, like *McLaughlin*, the Defendant wore a mask to conceal his identity. These are common aggravating features in both cases.
However, unlike McLaughlin, there are additional aggravating features as set out by the UK Sentencing Guidelines. The case now before the Court involves four Defendants, which demonstrated a greater level of planning. Two of the four Defendants went in to the Chisholms’ Supermarket to case the joint whilst the Defendant and his co-robber carried out the robbery.
There is no evidence that the robbers would have known how much money would have been in the cash register, but the take in this case amounted to CI$1,495.00 which is a large amount of money for a small business in the Cayman Islands. By contrast, the amount in the McLaughlin case, was less than half that amount – some CI$612.00.
In addition, as a result of his co-robbers’ first visit to the Supermarket, the Defendant and his companion would have realized that there were only the two women in the Supermarket - with women being more vulnerable targets. This Defendant pointed the gun at Ms. Sheena Ebanks’ collarbone, shouted “Give me your jewelry” and then grabbed Ms. Ebanks’ necklace from her neck with such force that it broke and her pendant fell to the ground. This use of force by the Defendant was a significant additional aggravating feature, which increases the level of seriousness. The result of Mr. Bryan’s threat was that Ms. Sheena Ebanks took her diamond watch from her own wrist and gave it to the Defendant, who then took the necklace and the pendant as well as the other items and placed them in his blue draw-string bag. As these robbers left the Supermarket one of them shouted back: “Next time be sure to have more money.”
It is not known if there was a mastermind or ringleader in this enterprise but, on any view, the Defendant played a major rather than a minor or peripheral role in this robbery.
Ms. Rhoda and Ms. Sheena Ebanks suffered a terrifying attack and clearly it is an experience that they will never forget. Store owners and employees must be able to operate their businesses in peace and without the ever-increasing levels of fear of robbery and personal harm.
As the Court of Appeal stated (supra) and I repeat: "Those who arm themselves with weapons and undertake pre-meditated robbery of small commercial businesses in these islands must expect at least five years imprisonment if they are convicted."
Based on the foregoing additional aggravating features I consider this case to be slightly more serious than the case of McLaughlin, and therefore I deem the appropriate sentence is six (6) years' imprisonment.
However, unlike McLaughlin, this Defendant pleaded guilty at the earliest opportunity, and accordingly, under the guidelines and case law, the Defendant is entitled to a discount of 33 \( \frac{1}{3} \% \). Consequently I impose a sentence of 4 years' imprisonment on Count 1.
In relation to Count 2 I take into account that for the robbery he used an imitation firearm and, accordingly I impose a sentence of three (3) years' imprisonment, to run concurrent with the 4 years on Count 1.
On the total sentence of 4 years' imprisonment, time spent in custody is to be deducted.
The Court would like to complement both Ms. Rhoda Ebanks and Ms. Sheena Ebanks for their courage and for their quick action in accurately recording the licence plate number of the vehicle outside the Supermarket and reporting the matter to the police. They took this quick action despite Ms. Ebanks’ expressed concern that Defendants now know them and would realize that they have reported them to the police. It is only this kind of stand against antisocial and criminal behaviour by members of the public that will assist the police in putting a stop to the activities of the criminal elements in our society.
In addition, the speed with which the police officers in the police cars and the helicopter unit acted in order to apprehend the robbers and recover a considerable number of the stolen items is to be highly commended. It was the combined quick action of the Complainants and the police which resulted in the robbers being apprehended in the shortest possible time. Dated this the 29th day of January 2014 Honourable Mr. Justice Charles Quin Judge of the Grand Court There is no text present in the image to transcribe.