Hume-Ebanks (Lavania) v. R.

¶ I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE Appearances: LA V ANIA OLIVIA HUME-EBANKS V REGINA SCA No.: 10/14; Case No.: 04914/2011 Mr. Crister Brady of BRADY, Attorneys-at- law Ms. Toyin Salako on behalf of the RespondentfDPP 22 Before: The Hon. Mr. Jnstice Malcolm Swift (Actg.) 23 Heard: 24 25 26 27 28 29 30 31 32 33 34

¶ [2] 23'· June 2015 JUDGMENT ON APPEAL AGAINST SENTENCE On the 12th March 2014, in an impressive, detailed and carefully considered judgment, the Learned Magistrate Kirsty-Ann Gunn convicted the Appellant of one count of theft trom her employer and 3 counts of false accounting. The total amount involved was CI$946.00 - all of which has been repaid by the Appellant. The sentence imposed, and justified in a carefully reasoned sentencing ruling, was 16 weeks imprisonment conCUlTent on each count. The Appellant has been on bail since sentence was imposed, pending resolution of the appeal against sentence. The Appellant has properly not sought to appeal against her conviction. Judgment. SeA 10114. Lavania Olivia Rurne-Ebanks v. R. Coram: Swift J. (Actg.). Date: 23.06.15 Page 1 0/8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 19 20 21

¶ [4] The facts of the case are clearly set out in the Judgment of the Learned Magistrate and will not be improved by repetition here. Stated shortly, the Defendant/Appellant, in the course of her employment, stole cash received by her from customers of the Cayman Islands Lands and Survey Department. She took advantage of a chaotic system (if that is the right word) of cash accounting within that Department. Part of the money was repaid at an early stage and all of it had been repaid by the time of sentence. The Learned Magistrate took into account in passing sentence all matters required to be considered as explained in the judgment of the Court of Appeal in R v Barric"': (a) The Appellant's position in the hierarchy of the Department. It was at the bottom end but nevertheless she was trusted to perform her work honestly; (b) The 7-month period over which the offences were committed; (c) The absence of any evidence of the nse to which the money stolen was put; (d) The limited impact of the thefts on the Department - save in relation to the perception of employees that the cash acconnting system was easily abused; (e) The impact of such offences on public confidence; (f) The impact on the Appellant who was of previous good character; '198581 Cr App R 78 Judgment. seA 10114. L;;;'~nia Olivia flume-Ebanks v. R. Coram:"Swifl J. (Aetg.). Date: 23.06.15 Page 2 0/8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

¶ [7] '(atP81) (g) The positive contents of the SIR; (h) The Appellant's impressive character references; and (i) Personal mitigation; Although there has been some criticism of the weight attached by the Learned Magistrate to some of the matters listed above, the real issue in this appeal is whether an immediate custodial sentence was justified and, in particular, whether the amount of money stolen is such that the court should properly have suspended the sentence or imposed a non-custodial alternative. The Court in BarricK explained that, in general, an immediate custodial sentence: "". is inevitable save in very exceptional circumstances or where the amount of money obtained is smalf' (emphasis mine). Clearly there were no exceptional circumstances in the present appeal so the first issue is whether the amount stolen could properly be described as small. Surprisingly there is a limited body of authority dealing with the issue of what amounts to a 'small' sum of money for the purpose of avoiding an immediate custodial sentence on the basis that "the amount of money obtained is small". In R v Clark', the Court of Appeal indicated that, in cases where the amount of money stolen was "not small" but was still less than £17,500.00, the lowest range of immediate custodial sentences fell between, very short, up to 21 months in length. 3 19982 Cr App R 137 Judgment. SeA 10114. Lavania Olivia Hume-Ebanks v. R. Coram: Swift J. (Aetg.). Date: 23.06/5 Page 3 0[8 1 That statement is entirely consistent with the imposition of non-custodial sentences 2 in cases involving small amounts of money but would suggest that a case in which 3 the sum stolen was not small, but was only just within the lowest range, merited a 4 very shOlt immediate sentence. 5

¶ [8] The sentence in the present appeal- one of 16 weeks' duration - falls well towards 6 the bottom of the lower half of the lowest sentencing range as explained in Clark. I 7 fully appreciate that once a case is deemed to fall within the lowest range of 8 sentencing, there are other factors which may affect where exactly within that range 9 the immediate case sits. It is clear in the present case that the Learned Magistrate, 10 having decided that the amount stolen was not small, correctly took into account a 11 munber of factors as explained in her Sentencing Ruling - as a result of which she 12 placed the case in the lower half of the lowest sentencing range and fixed the 13 sentence at one of 16 weeks. The question, therefore, is: Was the amount stolen in 14 fact 'small'; if small, was an immediate sentence of imprisonment still called for; 15 and was the length of that sentence appropriate. 16

¶ [9] The Learned Magistrate placed no reliance upon the case of Nicoletta v R4 on the 17 basis that it was not clear whether the Court heard argument as to whether 18 $1,240.00 was 'small' within the meaning of that term in the case of Barrick. 19

¶ [10] In my view it is clear that the Learned Judge' was indeed deciding that the sum was 20 small within the meaning of that term in Barrick. The Learned Judge said in terms 21 of that case: 22 41998 ClLR 166 5 As he then was - now, the Learned Chief Justice. ~-~~~~~~~~-=-""7"""~.-.. - .. --.--.----... - Judgment. SeA 10114. Lavania Olivia Hume~Ebanks v. R Coram: Swift J. (Actg.). Date: 23.06.15 Page 4 0/8 1 2 3 4 5 6 7 8 9 p 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

¶ [13] "The offence involved what was, by any measure, a small amount of some $1,240, That brings the offence well within the exceptions recognized (in Barrick) as not requiring immediate imprisonment although, involving a breach of trust." The case of Clark had been reported in The Times on the 4th December 1997 but does not appear to have been drawn to the attention of the Judge when Nicoletta was decided. Clark is certainly not listed in the list of cases referred to in argument before the learned Judge. However I do not expect that the decision would have been affected by the decision in Clark. I am also not persuaded that the present appeal is affected by the well-known decision of the Court of Appeal in this jurisdiction in R v Scott; R v Fynl - a case which was dealing more with the effect of offences involving breach of trust (on a rather larger scale than the present case) on the economy of these islands, rather than with what amounts to a small sum for sentencing purposes. I also take into account the Chief Justice's Statement of Tariffs and Guidelines on Sentencing 2002 in which it is said: "Depending on the values of the property stolen and any other aggravating factors, particularly where there is a breach of trust in the context of a relationship of employment, an immediate term of imprisonment rangingfrom 1 to 4 years for a first offence and an order for repayment will likely be imposed'. 6 2007 CILR 175 Judgment. seA 10114. Lavania Olivia Hume-Ebanks v. R. Coram: Swift J. (Actg.). Date: 23.06.15 Page 5 0[8 1

¶ [14] Unreported cases were drawn to the attention of the Learned Magistrate. In R v 2 Henry Blodsit Ebanks' the Grand Court considered CI$180.00 to be 'small'. The 3 Defendant in that case had pleaded guilty and a community service order was 4 imposed. 5

¶ [15] In R v D. McLaughlin8 a bank teller who had pleaded guilty to stealing 6 C\$2,000.00 from a customer's account was sentenced to 4 months in prison. That 7 case seems to me to sit well within the lower range of sentence as explained in 8 Clark, and it does not appear that it was suggested in argument that CI$2,000.00 9 was a 'small' amount of money. Indeed, it seems to me obvious that, once it was 10 determined that the case fell within the lowest range, a bank teller is in a high 11 position of trust thereby justifYing an increase in sentence from a starting point near 12 the bottom of the lowest range. Nevertheless, keeping in mind the guilty plea, the 13 4-month sentence (which had clearly been reduced from 6 months) was roughly 14 equivalent to the sentence in the present contested case in respect of over twice the 15 amount of money stolen. 16

¶ [16] Mr. Brady has also drawn my attention to the 2012 case of R v. S. McGowan9 in 17 which an accounts officer in the immigration deparhnent was convicted of theft and 18 false accounting involving CI$2,600.00 in 4 transactions over 4 months and had 19 altered records to cover up the thefts but received a sentence of 9 months 20 imprisonment suspended for 2 years. 21 22 7 Indictment No.: 0049/2009 8 Reported in the Caymanian Compass on the 26th March 2009 9 Reported in the Caymanian Compass on the 12th January 2012 Judgment. SeA 10/14. Lavania Olivia Hunte-Ebanks v. R. Coram: SwiftJ. (Actg.). Date: 23.06.15 Page 6 0[8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 23 24 25

¶ [18] The Learned Magistrate accepted that CI$946.00 was "on the very borderline of custody". However she then proceeded to draw the following conclusions. First, that CI$946 was not a small amount when judged against the income or school expenses of an ordinary Cayrnanian resident. Second, that the level of tmst placed in the Appellant by her employer, coupled with the fact that she was a public officer raised the case into the custody bracket. Was that the COlTect approach? In my judgment, it was not. The amount stolen in this case, though greater than the sum in R v. Henry Blodsit Ebanks, was well below the amounts involved in Nicoletta and in McGowan. I must remind myself that the total sum was made up of 6 separate thefts of CI$220.00, CI$41 1.00 (made up of 3 unspecified amounts) and CI$315.00. In my judgment the question of whether sums are small is not to be decided with reference to the perceptions of the public or against levels of trust placed in a public official. I am guided by other cases decided in this jurisdiction as set out earlier in this Ruling and those cases drive me to conclude that the amount stolen must be considered to be small for the purposes of the guideline case of Barrick. Furthermore, considerations based on other factors of culpability set out in Barrick are not relevant to the decision as to whether the sum stolen is properly to be categorized as small. Once such a categorization is made, the case, then, is to be treated as if very exceptional circumstances apply with the effect that an immediate sentence of imprisonment is no longer inevitable. Only then will the Barrick factors come into play to assist in deciding whether immediate imprisonment must nevertheless follow from a finding that the amount stolen was small and how long such a sentence should be. Barrick merely says that an immediate sentence of imprisonment is not inevitable if the amount stolen is adjudged to be small. Judgment. SeA 10114. Lavania Olivia Hume-Ebanksv. R. Coram: Swift J. (Aetg.). Date: 23.06.15 Page 70/8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

¶ [19] Was 16 weeks too long and shonld the sentence have been snspended? The Chief Justice's Statement on Tariffs was not followed in McGowan but nevertheless must be seen as the guiding principle. The aggravating factors were clearly set out in the Sentence Ruling of the Learned Magistrate. They included the Appellant's position as a public officer and the theft of public money.

¶ [20] I can understand why the Learned Magistrate, having decided that the amount stolen was not small, imposed an immediate sentence. I do not agree, having concluded that the amount stolen was in fact small, that an immediate custodial sentence was justified. The case crosses the custody threshold but there is sufficient mitigatory material lO to justifY suspension of the sentence. Sixteen weeks was not too high - falling, as it does, towards the bottom end of the lower range of sentence available according to the Clark guidelines. The sentence also fits comfortably with that imposed in McLaughlin IJ allowing for his guilty plea. However, I shall suspend the sentence for 18 months. To that extent this appeal is allowed. Dated this the 23'd day June 2015 Hononrable Mr. Justice Malcolm Swift (Actg.) Jndge of the Grand Conrt 10 Fully set out in the Social Inquiry Report (SIR) 11 A sentence of 4 months ~ 17 weeks was imposed. Judgment. SeA 10114. Lavania Olivia Hume-Ebanks v. R. Coram: Swift J. (Actg.). Date: 23.06.15 Page 8 0/8