Chadwick P, Conteh JA, Mottley JA
CICA 11-10 AG v Lanisia Barnes (oral transcript)
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
APPEAL NO 11 OF 2010
BETWEEN:
THE HONOURABLE ATTORNEY-GENERAL
Appellant
- and -
Lanisia Barnes
Respondent
BEFORE: THE RT. HON. SIR JOHN CHADWICK, P.
THE HON. JUSTICE E. MOTTLEY, J.A.
THE HON. DR. A.O. CONTEH, J.A.
CHARGES: FALSE ACCOUNTING
THEFT
APPEARANCES:
On behalf of the Appellant: Ms. K. Gunn
On behalf of the Respondent: (in person)
CICA 11-10 AG v Lanisia Barnes (oral transcript)
REASONS FOR JUDGMENT
CHADWICK, President:
THE COURT: This is an appeal by the Attorney General under section 30(1) of the Court of Appeal Law (2006). The ground of appeal is that the sentence passed on Lanisia Barnes on 23rd April, 2010 was unduly lenient and should be reviewed by this Court.
On 23rd April, 2010, Mrs. Barnes was sentenced in respect of 42 counts of theft and false accounting in relation to offences which had taken place between the 16th of August, 2004 and the 27th of September, 2006. She was, at the relevant dates, an employee of Bank of Butterfield Ltd.
The amounts which she had misappropriated from the bank in the course of her employment were in aggregate the sum of $62,000.
She misappropriated those sums because she was in a position to manipulate the bank's internal transactions: so that monies which
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ought to have been debited to her account were not debited, and monies were credited to her account which should not have been credited. She did so over a period of some two years. In the course of doing so, she involved more
CICA 11-10 AG v Lanisia Barnes (oral transcript)
junior employees of the bank under her control in the deception of her and their employer.
She pleaded guilty to the offences with which she was charged on the 5th of November, 2009. Her case was stood over for sentence following a social enquiry report. It came on for sentencing before Justice Cooke on the 23rd of April, 2010.
It was accepted by the judge, and recognised by counsel who was then appearing for Mrs. Barnes, that an offence or offences of this nature - that is to say, offences involving theft from an employer by an employee who was in a position of trust - would normally attract an immediate custodial sentence. The Courts have repeatedly laid down the principle which applies to such cases.
The principle is set out in the Statement on Tariffs and Guidelines issued by the Chief Justice on the 16th of January, 2002. It is
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indicated there that a sentence of between one and four years for a first offence can be expected, where the offence of theft is committed by an employee in a position of trust. Nevertheless, it is also recognised that an immediate sentence of imprisonment may not follow in a case where there are exceptional circumstances.
CICA 11-10 AG v Lanisia Barnes (oral transcript)
The law in this jurisdiction has been set out by this Court in the Crown against Scott and Fyne against the Crown [2007] CILR 175.
The Courts have consistently emphasised that offences of this nature are serious and should be recognised as serious; and that it will only be in circumstances which can truly be regarded as "exceptional" that an offender can expect to receive a sentence other than an immediate custodial sentence.
As I have said, the judge - and counsel for Mrs. Barnes - recognised that principle.
The judge was addressed, therefore, on the question whether there were in this case exceptional circumstances which should lead him to pass a sentence on Mrs. Barnes other than an immediate custodial sentence.
(R v L. Barnes 2010AUG10 kam)
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One of the factors that was put before the judge was the medical condition from which Mrs. Barnes suffered; which, it was said, was likely to be exacerbated by a period of incarceration.
The judge, as one would expect, asked her advocate for medical evidence to support that proposition. The evidence to which the Court was taken is found in two documents:
The first is a letter dated 30th September, 2009, from the General Practice
CICA 11-10 AG v Lanisia Barnes (oral transcript)
Clinic at George Town Hospital signed by Dr. Fiona Robertson. That letter refers to the patient by a different name - "Lanisia McLaughlin" - but it has not been suggested that the patient under that name is not indeed Mrs. Barnes. The letter contains these sentences:
"This is to certify that the above-named person is a patient of the General Practice Clinic of the George Town Hospital. She has a seizure disorder which is only partially controlled on her current medication.
On the 22nd of September 2009 she was unwell and had come to the doctor and could not attend Court. Her condition is chronic and can be exacerbated by stressful conditions. A recent increase in her medication should improve her situation".
The doctor invited the reader to make contact should there be any queries or clarification needed.
As appears on the face of that letter, it was not written as a medical report for the purposes of consideration at the point of sentence. It was written to explain why Mrs. Barnes had not appeared at Court on 22nd of September 2009; a date which was before she was arraigned or had pleaded guilty.
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attend Court. Her condition is chronic and can be exacerbated by stressful conditions. A recent increase in her medication should improve her situation".
The doctor invited the reader to make contact should there be any queries or clarification needed.
As appears on the face of that letter, it was not written as a medical report for the purposes of consideration at the point of sentence. It was written to explain why Mrs. Barnes had not appeared at Court on 22nd of September 2009; a date which was before she was arraigned or had pleaded guilty.
CICA 11-10 AG v Lanisia Barnes (oral transcript)
A subsequent letter dated the 14th of April, 2010 was obtained from Dr. Adriana Rodriguez of the Cleveland Clinic in Florida.
That letter is short. It is addressed: "To whom it may concern". It reads:
"Miss Lanisia McLaughlin Barnes is a patient of mine at the Cleveland Clinic in Florida. She is diagnosed with epilepsy. Please be advised that stress can exacerbate seizures".
Again there is an indication that
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questions or comments can be addressed by way of follow up.
Those two letters were put before the judge. It was submitted that they showed - as, plainly, they did - that Mrs. Barnes had a medical condition which was only partially controlled on current medication; that the condition was chronic; and that the condition could be exacerbated by stressful conditions.
The judge then said this:
"You have made the point that the effect on the offender if I send her to prison I'm going to accelerate the ending of her life".
The response of her counsel was that he was not going as far as that. He said simply that "the condition put her in a different
CICA 11-10 AG v Lanisia Barnes (oral transcript)
position than the normal person because one of the things...". He was unable to complete that sentence because the judge intervened to say: "Mr. Murray, mind, you make me change my mind you know". Counsel indicated that he would like the judge to look at a further report; but the judge was not prepared to do so. The judge observed:
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"The effect on the offender will be that it may well turn out to have disastrous consequences on her health. We can't take it any higher".
There was really no further argument or submission about the point. A few sentences further on in the transcript the judge is recorded as saying: "Okay, I've heard enough, I'm not going to send her to prison".
The further document to which her advocate may have intended to refer the judge is a letter dated 16th April, 2010, which confirmed that she had been admitted to the critical care unit of 20th April 2009; and that, at the time she was admitted, she was in an unresponsive state with a diagnosis of "status epilepticus". By the 23rd of April she was noted to be rational and alert and was finally discharged for home on 24th April, 2010.
CICA 11-10 AG v Lanisia Barnes (oral transcript)
I note that that date must be in error.
The letter was prepared for the sentencing exercise that was about to be carried out on the 23rd of April 2010; and must have been referring to an incident which had happened
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some 12 months earlier, in April 2009.
Be that as it may, the letter would not have taken the matter beyond the point reached by the other two documents to which I have referred.
The Crown's point is a short one. It is said that material before the judge did not support the judge's conclusion that, if Mrs. Barnes was sent to prison, the ending of her life would be accelerated. That was not a conclusion which the judge could draw from the material before him. The Crown accepts - and accepts properly - that, had there been material which supported the proposition that sending Mrs. Barnes to prison would accelerate the ending of her life, that would have been a factor to be taken into account as an exceptional circumstance. But there was, in this case, no material to support that proposition.
In those circumstances, the judge had no basis upon which to depart from the well-established principle that offences of
CICA 11-10 AG v Lanisia Barnes (oral transcript)
this nature should attract an immediate custodial sentence; and no basis on which to
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pass the sentence which he did. That is to say, a non-custodial sentence of probation linked to community service of 240 hours, was not properly open to him in the circumstances.
That sentence was plainly wrong. The appropriate sentence in this case would have been a sentence of immediate imprisonment for at least two years. That term gives credit for the guilty plea which was entered by the offender; but takes account of the serious nature of the offence committed by an employee in a senior position within a bank, exploiting her position for her own advantage.
This Court takes yet another opportunity to emphasise that cases of this nature will usually attract an immediate custodial sentence. This is not a case in which there was any reason to depart from that principle. The sentence passed was plainly unduly lenient; and the appeal under section 30(1) of the Court of Appeal Law must succeed.
In those circumstances, the Crown's appeal must be allowed.
The question, then, is what sentence should this Court impose at this stage?
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Section 30(1) provides that, in a case in which this Court is satisfied that the sentence passed at trial was unduly lenient, the Court may, in place of it, pass such sentence as they think appropriate for the case. That requires us to consider what sentence is now appropriate, having regard to what has occurred.
The events since sentence include the completion of some 94 hours of community service. A further factor which we may properly take into account, in deciding what sentence now to pass, is that Mrs. Barnes was given the opportunity on 23rd April 2010 to put this offence behind her and to rebuild her life. She has taken that opportunity. This is an offender who destroyed her life by the offences which she committed. She sold her house to repay the monies which she misappropriated from the bank. She, of course, lost her job at the bank. Her marriage, it seems, has broken up: in that (we were told) that she and her husband are now separated. Nevertheless, she continues to care for her four children, aged between nine and 16, all of whom are living with her and her mother. Her
mother has the additional obligation of caring for a disabled grandmother. Of the four children, only the youngest is the child of the offender's husband. The other three would have nowhere to go if she could not care for them. The offender has obtained employment with Cayman Rehab Services. She has been working there for some 18 months. And there is no reason to think that she will not be able to continue that employment. She has fulfilled her obligations under the community service order to the extent that I have indicated; and there is no reason to think that she will not continue to serve the community in the way that she has been doing, by assisting with youth camp and a youth football team.
Is there, in those circumstances, any need now to send her to prison: in circumstances where she had been led to, by the sentence passed on her on 23rd April 2010, that she would not be going to prison?
That is a question which we have found difficult, but we have come to the conclusion that it is not necessary for her now to be sent
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to prison. The message that the sentence passed on 23rd April 2010 was the wrong sentence can be emphasised without that step being taken.
CICA 11-10 AG v Lanisia Barnes (oral transcript)
The appropriate sentence in our view, now, would be a sentence of imprisonment of 12 months. The imposition of a 12-month sentence, rather than the sentence of two years, which ought to have been passed, recognises that the offender has completed a substantial part of the community service order that was imposed upon her. It is necessary to reflect that in a reduction of prison sentence, otherwise she would, in effect, be punished twice for the same offence. But we think it appropriate to suspend that sentence in order to recognise the fact that not having been sent to prison on the 23rd of April, she has been given an expectation which it would be unduly harsh to disappoint by an order of immediate imprisonment at this stage. She should be allowed to continue the process of rehabilitation and the rebuilding of her life which she was encouraged to pursue by the sentence that was in fact passed upon her on
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the 23rd of April.
Accordingly, the order that we make is that we set aside the community service order. We impose a sentence of imprisonment of 12 months. We suspend that sentence for 12 months and we leave the probation order in place.
I must emphasise that that is the Court's
response to the particular circumstances of this case. Had the appropriate sentence been passed, as it should have been, on the 23rd of April 2010, this offender would now find herself in prison serving a sentence of some two years. The circumstances have favoured her; in that the appropriate sentence was not passed at the time.
It is important to emphasise, again, that those who commit offences of this nature can expect to go to prison. We have considered whether it is necessary to underline that principle by sending this offender now to prison, despite what has happened. We are satisfied that that step is not necessary. We make it clear by our judgment that an immediate term of imprisonment was appropriate and that it is only because of the events since the 23rd
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of April that we now take the view that the sentence should be suspended.
Accordingly, the appeal is allowed, the community service order is set aside. The probation order is left in place. We substitute a sentence of imprisonment of 12 months which we suspend for 12 months.
MS. GUNN: Thank you My Lord.
THE COURT: Thank you Ms. Gunn. Thank you Mrs. Barnes.
CICA 11-10 AG v Lanisia Barnes (oral transcript)
THE DEFENDANT: Thank you.
(PROCEEDINGS CONCLUDED AT 1:01 P.M.)
(R v L. Barnes 2010AUG10 kam)