Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 65/11 THE QUEEN V PAUL MILLER Appearances: Ms. Marilyn Brandt for the Crown Ms. Fiona Robertson of Samson and McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 16th March 2012 (Sentencing submissions heard) SENTENCE RULING
On the 16th March 2012 the Defendant pleaded guilty to handling stolen goods contrary to s.260(1) of the Penal Code. The particulars of the offence are that the Defendant, on the 15th May 2011, handled stolen goods, namely, a Blackberry Bold cell phone, knowing it to be stolen.
On the 14th May 2011 the Complainant, with other friends, went out drinking. After spending a few hours with these friends the Complainant drove one home, and then was driving along Esterly Tibbetts highway when he crashed the car.
It is accepted by the Crown that the Complainant and his passenger fell asleep in the car after it had crashed.
The Defendant and his friend, called Mr. Randy, came upon the car in which the Complainant and his friend were asleep. Against the Defendant’s protestations Mr. Randy took the Complainant’s Blackberry cell phone and they left the car.
Some days after that Mr. Randy gave the cell phone to the Defendant, who used it for a couple of days.
Some days after he received the cell phone the Defendant was arrested and he admitted to the police that he had the Blackberry, which he knew to be stolen. The Defendant also admitted that he was present at the time the phone was stolen.
Counsel on behalf of the Defendant asked the Court to take into consideration that the Defendant had pleaded guilty at the earliest opportunity. Defence counsel submitted that Randy stole the phone and the Defendant tried in vain to persuade Randy not to take it out of the car.
Defence counsel candidly accepts that when Randy gave the phone to the Defendant, the Defendant was happy enough to take it and use it.
Defence counsel relies on the guidelines set down by the English Court of Appeal in \( R \text{ v. Webb, Andrew, Andrew, Moore and White} \) [2002] 1 Cr. App. R. (S)22 and the judgment of the Vice President Lord Justice Rose. In that case Lord Justice Rose reviews the English case law and the guidelines from the Sentencing Advisory Panel. Accordingly at paragraph 20 Lord Justice Rose states: "The sentencing panel goes on to identify nine factors which may be regarded as aggravating the offence. With each of these factors we agree. They are as follows: 1. The closeness of the handler to the primary offence. We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal. 2. Particular seriousness in the primary offence. 3. High value of the goods to the loser, including sentimental value. 4. The fact that the goods were the proceeds of a domestic burglary. 5. Sophistication in relation to the handling. 6. A high level of profit made or expected by the handler. 7. The provision by the handler of a regular outlet for stolen goods. 8. Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit. 9. The commission of an offence whilst on bail."
In addition Lord Justice Rose agreed with the mitigating factors identified by the Sentencing Panel namely, "Low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact there is little or no benefit to the Defendant, and the fact of voluntary restitution to the victim."
Lord Justice Rose went on to state at paragraph 22, "We also agree with the panel that other factors to be taken into account include personal mitigation, ready cooperation with the police, previous convictions, especially for offences of dishonesty, and a timely plea of guilty."
Defence counsel highlights the fact that the Defendant has two convictions for burglary for which he was sentenced on the 17th August 2011 to 6 months, and a further 18 months, consecutive, with an order for compensation.
The offence to which the Defendant has now pleaded guilty occurred on or about the same time as he committed the burglary, and Defence counsel asked the Court to consider the possibility of dealing with these offences on the totality principle, namely, that they were all part of a series of similar offences occurring within the same timeframe.
I have reviewed the SIR prepared by Trisha Smith and dated the 23rd March 2011 for the purposes of the burglary offences. It is clear from the SIR that the Defendant has come from a good home and up until late 2010 and early 2011 had no previous convictions and was of good character. His deterioration into the life of crime started with an increase of the use of alcohol and ganja, together with associating with a bad group of persons who had a very harmful influence on the Defendant. Ms. Smith states that for "the defendant to avoid recidivism and become a productive member of society, he will need to rid himself of his dependency on the use of drugs and alcohol and start making pro-social choices, which includes changing his peer association."
I note that it is the Defendant’s avowed intention to return to Technical College, with a view to qualifying as a mechanic. This is a very admirable aim and one I sincerely hope the Defendant will attain.
I take into account the fact that the Defendant cooperated immediately with the police.
The stolen item which the Defendant handled was not of a high value, it was not sentimental and, most importantly, it was recovered and returned to the owner.
There is no evidence before me that the Defendant harboured stolen goods or could be described as being a “fence” for stolen goods.
I also take into account that the item handled was not obtained as a result of a domestic burglary. Also, there was no high level, or any level, of profit made. In addition there is no evidence that there was any threat of violence or abuse of power by the Defendant.
I also take into account the submission made by Defence counsel that this incident occurred around the time the Defendant committed the burglaries for which he served a 2-year term of imprisonment.
Accordingly, I impose a sentence of 6 months imprisonment to run concurrent with the current 2-year sentence of imprisonment. I also order that Count 1 be made to lie on the file.
Mr. Miller: I have listened very carefully to what your counsel, Ms. Robertson, and your Probation Officer, Trisha Smith, have said on your behalf. Your honesty is admirable. However, as Ms. Smith stated, your self-reported usage of alcohol and drugs is alarming. For you to avoid recidivism you must rid yourself of your drugs and alcohol usage. I urge you to put all illegal drugs and your past criminal conduct behind you. You now have an opportunity to train as a mechanic and have a productive and highly regarded occupation. Well trained mechanics are always going to be needed, so you have the opportunity to be in fulltime employment with a regular income. That is important for you, your family and your self esteem.
There is one final aspect of this case which troubles me, and about which I feel I must comment. The Defendant’s Royal Cayman Islands Police Service (RCIPS) criminal record has itemized seven (7) convictions for offences, including robbery, theft, GBH and consumption of cocaine and ganja, for which this Defendant has never been convicted. I am very concerned that a formal RCIPS record of antecedents lists wholly inaccurate convictions. This is a very serious error. If this document with these inaccurate convictions were to be circulated, it could have disastrous consequences for the Defendant, Mr. Miller, and his future career. I would be grateful if counsel from the DPP would contact the RCIPS to ensure that this error is corrected forthwith, and that proper safeguards are put in place to ensure that this does not happen again. Dated this the 27th day of March 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court