Green v R

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J. and Schofield, J.)
• Judgment Date: 09 January 1989
• Date: 09 January 1989
• Court: Grand Court (Cayman Islands)

Grand Court

(Collett, C.J. and Schofield, J.)

GREEN

and

R.

The appellant appeared in person;

Miss J. Conolly, Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Clarke, [1982] 1 W.L.R. 1090; [1982] 3 All E.R. 232; (1982), 75 Cr. App. R. 119, dicta of Lord Lane, C.J. applied.

(2) R. v. McCarthyUNK(1982), 4 Cr. App. R. (S.) 364; [1983] Crim. L.R. 201, applied.

(3) R. v. O”Keefe, [1969] 2 Q.B. 29; [1969] 1 All E.R. 426; (1968), 53 Cr. App. R. 91.

(4) R. v. SapianoUNK(1968), 52 Cr. App. R. 674, considered.

Legislation construed:

Penal Code (Law 12 of 1975), s.23D, as added by Penal Code (Amendment) Law, 1985 (Law 18 of 1985), s.3: The relevant terms of this section are set out at page 256, lines 3–8.

Criminal Procedure-sentence-imprisonment-partly suspended sentence-gravity of offence must justify at least six months” imprisonment-appropriate where short term of immediate imprisonment called for as mark of public disapproval and as deterrent but threat involved in suspension of balance sufficient additional punishment-unsuitable for offender previously in breach of suspended sentence

Criminal Procedure-sentence-imprisonment-partly suspended sentence-not to be imposed concurrently with immediate imprisonment or activation of previous suspended sentence but may be made consecutive to other imprisonment

The appellant was charged in the Magistrate”s Court, George Town, with unlawful possession of cocaine and burglary.

He pleaded guilty to both charges and was sentenced to 18 and 12 months” imprisonment respectively but in both cases with 9 months partly suspended for 2 years. The immediate terms of imprisonment were expressed to run consecutively and a previous suspended sentence of 9 months” imprisonment for possession of cocaine was also activated, bringing the total period of immediate imprisonment to 21 months with further terms totalling 18 months” imprisonment suspended for 2 years. The appellant had had four previous convictions.

He appealed against sentence.

Held, varying the sentences:

(1) A partly suspended sentence is intended to be applied in those cases where the gravity of the offence is such that at least six: months” imprisonment is merited, but where there are mitigating circumstances which justify a measure of leniency not sufficient to warrant total suspension. The court”s power to impose such a sentence under s.23D of the Penal Code should be exercised on occasions where more than a short sentence of immediate imprisonment is required to mark public disapproval and as a deterrent to others, but where the circumstances of the particular offender are such that a short term of immediate imprisonment coupled with the threat involved in the suspension of the remainder will be enough to punish him for his offence and to deter him in future (page 257, line 8 – page 258, line 31).

(2) The appellant should not have been sentenced to 18 and 12 months” imprisonment respectively, partly suspended in each instance for 2 years, since under s.23D the court had no power to suspend part of a sentence for a period longer than the balance of that sentence. Further, it was also wrong in principle to impose partly suspended sentences at the same time as activating a suspended sentence passed on an earlier occasion or imposing a new sentence of immediate imprisonment, though it would not have been wrong to make a partly suspended sentence consecutive to such a sentence. It was important for the success of the partly suspended sentence that it should not be employed with respect to an offender who had already clearly indicated by the breach of a previous suspended sentence that he was unlikely to be deterred from committing further offences. Accordingly the sentences would be reduced by quashing the suspended portions (page 255, lines 27–30; page 256, lines 9–27).

40	COLLETT, C.J.: John Sheldon Green (the appellant) was, on
June 23rd, 1988, convicted on his own plea of guilty of possession

of cocaine (in Charge No. 565/88) and of burglary (in Charge No.
6844/87). In Charge No. 565/88 he was sentenced to 18 months”
imprisonment of which 9 months were suspended for 2 years and
in Charge No. 6844/87 to 12 months” imprisonment, 9 months of
5	which were suspended for 2 years. On June 23rd, 1987 the appel-
lant had received a sentence of 9 months” imprisonment sus-
pended for 2 years for possession of cocaine which fell to

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