Chadwick P, Forte JA, Mottley JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS Criminal Appeal No. 21 of 2009 (Indictment No. 44/08) C#516/08 Between: HER MAJESTY THE QUEEN - and - IZAZA ROBINSON Appellant Respondent NOTIFICATION TO AUTHORITIES OF RESULT OF APPEAL To: The Attorney General This is to give you notice that IZAZA ROBINSON having sought leave to appeal against her SENTENCE passed upon her by the Grand Court on the 14th day of August 2009 as set out below: Indictment 44/2008 Attempted Murder– Count 1 Count 1 – Left on file on 14th August 2009 Wounding with Intent– Count 2 Probation for 2 years with conditions on Counts 2 & 4 (to run concurrently) Attempted Murder– Count 3 Count 3 – Left on file on 14th August 2009 Wounding with Intent– Count 4 Pleaded not Guilty to Wounding with Intent but GUILTY to a lesser included offence – WOUNDING Simpliciter Sentence: Same as Count 2 The Court of Appeal has finally determined the said appeals, and has this 25th day of November, 2009 given judgment therein to the effect following:
Legal Aid extended to the Appeal and granted to Samson & McGrath (Mr. Tonner)
Appeal allowed (Crown's)
Sentence quashed.
Sentence substituted of a Probation Order for 3 years from 14th August, 2009 (attached).
Oral transcript of ruling to be released. Dated this 4th day of January, 2010. Registrar THE COURT OF APPEAL OF THE CAYMAN ISLANDS LON AT GEORGE TOWN, GRAND CAYMAN Criminal Appeal No. 21 of 2009 (Indictment No. 44/08) C#516/08 PROBATION ORDER LAW SECTION (3) On the 14th day of August, 2009, Izaza Robinson (herein called the Offender) was brought before the Grand Court for the Offence (s) of: Indictment 44/2008 Attempted Murder– Count 1 Count 1 – Left on file on 14th August 2009 Wounding with Intent– Count 2 Probation for 2 years with conditions on Counts 2 & 4 (to run concurrently) Attempted Murder– Count 3 Count 3 – Left on file on 14th August 2009 Wounding with Intent– Count 4 Pleaded not Guilty to Wounding with Intent but GUILTY to a lesser included offence – WOUNDING Simpliciter Sentence: Same as Count 2 The Court of Appeal has finally determined the said appeals, and has this 25th day of November, 2009 given judgment therein to the effect following: 1. Appeal allowed (Crown’s) 2. Sentence quashed. 3. Sentence substituted of a Probation Order for 3 years from 14th August, 2009 in the following terms: IT IS HEREBY ORDERED THAT the Offender be placed upon probation as below: A. During the period of probation she shall be under the supervision of the probation officer of the district in which she lives and shall observe the following conditions: 1. She shall receive at the place where she resides visits from the probation officer at such times as the probation officer may think fit; 2. she shall report to the probation officer, or at such other place as the probation officer shall direct, the times fixed by the probation officer; 3. she shall answer truthfully all questions put to her by the probation officer with regard to her conduct, associates, employment or residence; and she shall report immediately to the probation officer any change of her residence or place of employment. 4. During this period the offender is to lead an honest and useful life. B. The further conditions that are imposed are: 1. She shall reside at her place of residence for a period of two years from 14th August, 2009; 2. She may be absent from her place of residence during the period of her employment outside that place, and for a period of one hour before and after that period of employment for the purpose of travelling to and from her employment; 3. And she may also be absent from her place of residence for a period of four hours on a Sunday, in order to go to church. C. The other conditions imposed by the probation order originally passed are to remain, as follows: 1. She is not to consume any alcohol or drugs; 2. She is not to be found with any weapon, including a knife, in her possession; 3. She is not to come within 100 feet of any nightclub or bar; 4. She is to have no contact, directly or indirectly, with Terri McLaughlin and Lauri Barnes; and she is to continue to pay compensation as ordered on the 14th of August 2009. On Breach of any of the conditions of this Order or on the conviction of the Offender of any offence while this probation Order is in Force, the Offender will be brought before the Court to be sentenced. Dated at George Town in the Island of Grand Cayman on 25th day of November 2009 Registrar Cayman Islands Court of Appeal I have read and discussed the terms of my Probation with the Probation Officer and I further understand the consequences if I break any of the conditions of my Probation. SIGNATURE OF PROBATIONER IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 21 OF 2009 IND. NO. 44 OF 2008 C# 0516/2008 BETWEEN: HER MAJESTY THE QUEEN Appellant and IZAZA NATALIA ROBINSON Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK P. THE HON. MR. JUSTICE FORTE J.A. THE HON. MR. JUSTICE MOTTLEY J.A. Reasons for Judgment delivered orally on 25 November 2009 JUDGMENT RELEASED JANUARY 2010 Reasons for Judgment (Chadwick, P.) JUDGMENT Chadwick, President (Orally): On the 4th May 2009 Ms. Izaza Robinson pleaded guilty to a count of wounding with intent, and also pleaded guilty on a further count to the lesser offence of wounding simpliciter. The counts related to offences committed on the 20th October 2007 at the Matrix Nightclub. The circumstances of the offence are set out in the reasons for sentence delivered by Henderson J. when he came to sentence Ms. Robinson on the 14th August 2009. Put shortly, the offences were committed after an altercation between Ms. Robinson and two other women, Ms. Terri McLaughlin and Ms. Lori Barnes. What is said is that Ms. Robinson attended the nightclub with a friend. In the course of the evening the other two, with others, approached her. It is said that one of that group stubbed a lighted cigarette on Ms. Robinson causing a burn. A fracas developed. The parties were separated by the security Reasons for Judgment (Chadwick, P.) officers at the nightclub. Ms. Robinson left by a back entrance. The other women got into their car, came around to the car park and got out of the car. Ms. Robinson was provided with a knife by somebody purporting to be a friend of hers. There was a scuffle, in the course of which both Ms. Barnes and Ms. McLaughlin were wounded. The papers before us show pictures of those wounds. They were serious and, in one case at least, have left permanent damage. As I have said, on the 4th May 2009, Ms. Robinson pleaded guilty to the two offences to which I have referred. Charges of attempted murder in relation to both victims were left on the file. The judge had indicated on the 4th May that he had in mind a custodial sentence for these offences. Indeed, he said that a custodial offence was, really, inevitable. Taking that view, he revoked bail during the period for the preparation of a psychiatric report that he had ordered. So Ms. Robinson spent a period of some two months in prison between her plea of guilty and her sentence on Reasons for Judgment (Chadwick, P.) the 14th August 2009. During that period she must have expected that she was going to receive an immediate custodial sentence; the judge had told her to expect that when she was before him in May 2009. When the judge came to sentence, he had the benefit of a psychiatric report and a social inquiry report. In the event, he did not find much assistance in the psychiatric report; but plainly he was influenced by the social inquiry report which was prepared by Mr. Tomlinson and dated 19th June 2009. He described that as a positive report. In the course of his sentencing remarks the judge said this: "This was a serious act of violence which would ordinarily call for a substantial period of incarceration. However, there are a number of mitigating factors. Ms. Robinson has pleaded guilty. She has, as I have said, obtained a positive social inquiry report. She has no previous criminal history, Reasons for Judgment (Chadwick, P.) she is still a relatively young person, and she has a two year old for whose care she is responsible. She has been in custody for some two months now and has had an adequate opportunity to reflect on the consequences of her violent actions. All of these factors suggest to me that it would be appropriate to take a chance with this defendant at this time and impose a non-custodial sentence. There will have to be a period of house arrest." On the basis of those remarks, the judge made a probation order for two years. So far as material, the probation order contained conditions which required her to remain within her place of residence for a period of one year, except for the purpose of travelling to and from her employment and attending church on Sundays. She was not to consume alcohol; she was not to be found with any weapon; and she was not to go near any Reasons for Judgment (Chadwick, P.) nightclub or bar. She was to have no contact, directly or indirectly, with the complainants, Ms. McLaughlin and Ms. Barnes. In addition, she was to pay compensation in the sum of $3,000 each to the complainants; and she was to do that at the rate of $750 a quarter, the first payment to be made on the 14th November. He concluded his remarks with this sentence: "If there is any breach of the terms, then I will revoke the probation order and send you to prison for a term which will likely be in the range which I mentioned during my Goodyear indication." That was a reference to an indication which the judge had given at an earlier stage of the proceedings, in advance of the guilty plea, that he had in mind a maximum term of imprisonment of some four and a half years. It was on the basis of that indication that the defendant entered a guilty plea. The appeal before us is an appeal by the Crown under s.30 of the Court of Appeal Law Reasons for Judgment (Chadwick, P.) (2000 Revision). Section 30 is in these terms: "(1) If it appears to the Attorney-General- "(a) that the sentencing of a person in a proceeding in the Grand Court has been unduly lenient or is wrong in law; and "(b) that the case is a case in which sentence is passed on a person for an offence triable on indictment, "he may, with the leave of the Court, refer the case to it to review the sentencing of that person; and on any such reference the Court may- "(c) quash any sentence passed on the person in the proceeding; and "(d) in place of it pass such sentence as they think appropriate for the case and that the court below had power to pass when dealing with the accused." Reasons for Judgment (Chadwick, P.) An appeal under s.30 of the Court of Appeal Law raises two questions: first, whether the sentence passed on the 14th August was unduly lenient in the circumstances; and second -- and this is a distinct question -- what sentence should the Court of Appeal now pass in the circumstances as they now are, taking account of what has happened since the 14th August 2009. Section 30 does not require the Court simply to pass the sentence which it might think the judge ought to have passed at the time of the original sentencing exercise. In our view, although there were pending mitigating circumstances in this case, which the judge identified in the course of the sentencing remarks to which I have referred, they were not of sufficient weight -- either individually or taken together -- to lead properly to the conclusion that this was a case in which a non-custodial sentence could be appropriate. This was a bad case of wounding with a knife. It is certainly the case that the defendant did not take the knife to the nightclub, nor did she go there with the Reasons for Judgment (Chadwick, P.) intention of inflicting harm on anyone. But it is clear from the material which the judge took into account that once the knife had been passed to her, she was determined to use it and made considerable efforts to do so, notwithstanding the restraint sought to be imposed by the security guard. She obviously lost her temper and lashed out with the knife, inflicting serious injuries which could have been -- but fortunately were not -- life threatening. Even on a guilty plea, a minimum sentence of four years' imprisonment would not have been excessive. The sentence which the judge had in mind at the time when he revoked bail was a sentence which he could properly have passed in this case. And there should be no doubt in the minds of those contemplating using knives to inflict wounds that the consequence of a conviction will be a sentence of imprisonment. For those reasons, we are satisfied that the sentence passed by the judge was unduly lenient in the circumstances. That brings us to the second question. What sentence should we now pass? Reasons for Judgment (Chadwick, P.) The critical question is whether it is necessary or appropriate to send this offender back to prison. I use the phrase "back to prison" because I have in mind that she has already spent two months in prison. In our view, it is not necessary to send her back to prison in the circumstances of this case, but it is necessary to mark the seriousness of the offence by revisiting the terms of the probation order. The appropriate order is one which, in effect, imposes restrictions upon her for a period which is comparable to that which would have applied had she been serving a sentence of some four years, account being taken, of course, of the two months that she did in fact serve. In those circumstances, we propose to quash the sentence that was passed, and to substitute for that sentence an order that she be placed upon probation for a period of three years upon the terms set out in the existing probation order. That is that during the period of probation, she shall be under the supervision of the probation officer of the Reasons for Judgment (Chadwick, P.) district in which she lives and shall observe the following conditions: (a) she shall receive at the place where she resides visits from the probation officer at such times as the probation officer may think fit; (b) she shall report to the office of the probation officer, or at such other place as the probation officer shall direct, the times fixed by the probation officer; (c) she shall answer truthfully all questions put to her by the probation officer with regard to her conduct, associates, employment or residence; and (d) she shall report immediately to the probation officer any change of her residence or place of employment. That order shall persist for a period of three years from the date of the original sentence, that is 14th August 2009, and during that period the offender is to lead an honest and useful life. The further conditions that we impose are these: She shall reside at her place of residence Reasons for Judgment (Chadwick, P.) for a period of two years from 14th August 2009; She may be absent from her place of residence during the period of her employment outside that place, and for a period of one hour before and after that period of employment, for the purpose of travelling to and from her employment; and She may also be absent from her place of residence for a period of four hours on a Sunday in order to go to church. The other conditions imposed by the probation order originally passed are to remain. That is to say: 3) she is not to consume alcohol or drug; 4) She is not to be found with any weapon, including a knife, in her possession; 5) She is not to come within 100 feet of any nightclub or bar; 6) She is to have no contact, directly or indirectly, with Terri McLaughlin and Lori Barnes; and 7) She is to continue to pay compensation as ordered on the 14th August 2009. Ms. Robinson, you should stand up. You Reasons for Judgment (Chadwick, P.) will have heard the judgment of the Court. You are not being sent back to prison. You can regard yourself as fortunate -- indeed, very fortunate -- that Mr. Justice Henderson took the view that he did in August 2009. And you will bear in mind his closing remark that if you betray the trust that he placed in you, you can expect to go to prison for a period of some four years or thereabouts. THE RESPONDENT: Yes, sir. THE COURT: But he thought it worth taking a chance, and you have been given that chance, and we have not thought it right to deny it to you. In reaching that conclusion, we take account of the fact that you have, so far as we know, complied with all conditions -- THE RESPONDENT: All of them, sir. CHADWICK, P.: -- of the probation so far and have made the compensation payment you were required to make on the 14th November -- THE RESPONDENT: Yes. CHADWICK, P.: -- of this year. But to mark the fact that the correct sentence, in our view, for offence of this kind is that you Reasons for Judgment (Chadwick, P.) should be deprived of your liberty for a prison term equivalent to four years, we have increased the length of what the judge described as house arrest from one year to two. So you are now under the restrictions of your house arrest for two years from August 2009. But to avoid any doubt, we have varied those so as to enable you to go to work outside the house, if you resume employment on the 15th December, as we were told. Do you understand that? THE RESPONDENT: Yes, sir. CHADWICK, P.: Thank you. You may stand down. COURT REPORTER'S CERTIFICATE Certified correct to the best of my skill and ability, dated the 7th day of December 2009. Kerri Francelia