Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 21 of 2010 (Indictment Nos. 72,B,C,D/08) C#(05213/08, 05217/08, 05215/08) Between: HER MAJESTY THE QUEEN - and - JAMES ORVILLE EBANKS NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that JAMES ORVILLE EBANKS having sought leave to appeal against his SENTENCES passed upon him by the Grand Court on the 14th day of April, 2010, as set out below: THEFT (04952/08) 1 year imprisonment. THEFT (05213/08) Count 1 1 year imprisonment consecutive. CRIMINAL DAMAGE (05213/08) – Count 2 6 months imprisonment concurrent. THEFT (05217/08) Count 3 1 year imprisonment consecutive. THEFT (05215/08) Count 5 6 months imprisonment concurrent. THEFT (05217/08) Count 7 1 year imprisonment consecutive. The Court of Appeal has this 29th day of November, 2010 given judgment therein to the effect following:
Appeals against sentences having been withdrawn on all counts except count 3 (Stocks and Blondes) are therefore dismissed.
Appeal against sentence on count 3 dismissed.
Conviction and sentences affirmed.
Legal aid granted to John Furniss. Transcript of oral judgment to be released. Dated 12th September, 2011 IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS CRIM. APPEAL NO. 21/10 BETWEEN: JAMES ORVILLE EBANKS Appellant and THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK, President THE HON. JUSTICE I. FORTE J.A. THE HON. JUSTICE E. MOTTLEY J.A. Court Proceedings on 29 November 2010 APPEARANCES: Mr. J. Furniss for the Appellant Ms. C. James for the Respondent THEIR LORDSHIPS' RULING CHADWICK, President: On 14th April 2010, James Orville Ebanks was sentenced, following a guilty plea, on a number of counts of theft involving boats and boat equipment. There were four boats involved. The first, which had been stolen on the 10th of December 2005, was a 45-foot tender vessel known as "Carib Wave". That boat was stolen by Mr. Ebanks and sailed to Honduras where it was sold. Subsequently, the owner recovered it on payment. The second was a 30-foot dive boat known as "Dive 'n Stuff", stolen on the 29th of April 2008. There was a related count of criminal damage in relation to that boat because it was left on the rocks where it was holed. The third, a 29-foot Boston Whaler known as "Stocks and Blondes", was stolen a couple of weeks later on the 12th of May 2008. It was recovered without damage. There was, however, theft from that vessel of fishing rods, fishing tackle, towels, a wallet and a duffle bag. The fourth was a catamaran known as "Spirit of Calypso", some 65 feet long. Mr. Ebanks was sailing this vessel towards Venezuela when picked up by the marine services. That vessel, therefore, was also recovered. The value of the catamaran was close to $1,000,000. The judge sentenced Mr. Ebanks to one year imprisonment on each of the counts of theft of a vessel; making four years in all. He sentenced him to six months on the count of criminal damage and to six months on one of the counts of theft. He does not appear to have sentenced on Count 4, which was theft from Stocks and Blondes. The judge directed that those sentences of six months' imprisonment should run concurrently. The total time to be served, therefore, was four years overall. In passing sentence, the judge said this: "In imposing sentence, I must consider all of the relevant principles of sentencing; that is to say, deterrence of this offender, deterrence of other like-minded members of the public, protection of the public, and the possibility of rehabilitation. No violence has been involved in any of these crimes against property so the protection of the public, while it is a significant factor, does not outweigh the need to consider the rehabilitation of the offender. All of the principles of sentencing must be taken into account and balanced against each other. In addition, I must arrive at a global sentence which is fair in all of the circumstances." The possibility of rehabilitation had been raised in a social inquiry report which was before the judge. The conclusion of the probation officer was that Mr. Ebanks presented a very high risk of reoffending. His record stretched back to 1982; and -- as appears from the information before the Court -- involved some 53 separate offences. It is plain that the judge did not think that there was any real prospect that Mr. Ebanks would respond to a sentence involving rehabilitation. He went on to say this: "Taking into account everything I have said and the arguments of counsel, it is my view that an appropriate sentence is imprisonment for one year on each count. That would ordinarily result in a term of imprisonment of six years, but it should be reduced because of the guilty plea. I will reduce that to four years. I will allocate the sentence in this way: I sentence Mr. Ebanks to prison for one year [in] respect to each of the four counts of theft of a boat, and I sentence him to six months on the theft of items from a boat and the damage to property counts. All of the sentences of theft of a boat are to be consecutive to each other. The two six-month sentences are to be concurrent with all other sentences. So the global sentence is four years' imprisonment." The judge fell into error in failing to sentence on one of the counts of theft to which Mr. Ebanks had plead guilty, but it may be assumed that he would have passed a sentence of six months on that count also; and would have directed the sentence to be served concurrently. So, overall, the position would have been the same. Mr. Ebanks appealed from all of those sentences. He asked the Court to consider substituting a rehabilitation sentence in the place of the sentences of imprisonment. This morning, when represented by Mr. Furniss -- and having no doubt in mind the possibility that this Court might think it appropriate to exercise its power to increase the sentences for theft of the more valuable boats -- Mr. Ebanks instructed counsel to abandon his appeal against sentences on all counts except the count relating to the theft of the vessel Stocks and Blondes on 12th May 2008. It is said that we should reduce the sentence passed in respect of Count 3 -- that is, the single sentence of one year in relation to the theft of Stocks and Blondes -- on the grounds that, in comparison with the thefts of the other vessels, that was a less serious offence and should have attracted a lesser sentence than the one year for which Mr. Ebanks was sentenced on each of those other offences. The first question, therefore, is whether one year was an excessive sentence for the theft of the 29-foot Boston Whaler on the 12th of May 2008. Mr. Ebanks had taken that vessel from its mooring at Laguna Del Mar to the north of the island, east of Pappagallo in the Barkers area of Grand Cayman. Mr. Ebanks said that essentially he took the boat for a joyride when under the influence of crack cocaine and alcohol. To persuade us to reduce that sentence or interfere with the judge's conclusion, counsel must persuade us that a one-year sentence for the taking of a 29-foot Boston Whaler for a joyride without damaging the vessel is manifestly excessive on a guilty plea. The maximum sentence which courts would pass on a count of theft would be ten years. Taking account of the guilty plea and of the difference between the value of the vessel Stocks and Blondes and the other vessels, we are not persuaded that a one-year sentence is, of itself, manifestly excessive. The second question is whether a one-year sentence on Count 3 is manifestly excessive when compared to the sentences passed on the other counts of theft. Had the judge considered each vessel separately, it is likely that he would have come to the conclusion that a greater sentence would be appropriate for the more valuable vessels: in particular, in respect of the "Carib Wave" which was sailed to Honduras and sold and the catamaran "Spirit of Calypso" that was intercepted on its way to Venezuela. But, in the circumstances of this case, where the judge was considering the matter on a global basis, the individual sentences do not provide appropriate yardsticks; and the attempt to put the others on one side by abandoning the appeals may be seen as opportunistic. We are not impressed by it. In those circumstances, the appeals on all counts other than Count 3 are treated as abandoned; and the Court dismisses the appeal against sentence on Count 3.