Lavania Olivia Hume-Ebanks v R

• Jurisdiction: Cayman Islands
• Judge: The Hon. Mr. Justice Malcolm Swift
• Judgment Date: 23 June 2015
• Judgment citation (vLex): [2015] CIGC J0623-1
• Docket Number: SCA No.: 10/14
• Court: Grand Court (Cayman Islands)
• Date: 23 June 2015

Lavania Olivia Hume-Ebanks

and

Regina

[2015] CIGC J0623-1

Before:

The Hon. Mr. Justice Malcolm Swift (Actg.)

SCA No.: 10/14; Case No.: 04914/2011

IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE

JUDGMENT ON APPEAL AGAINST SENTENCE

1 On the 12^th March 2014, in an impressive, detailed and carefully considered judgment, the Learned Magistrate Kirsty-Ann Gunn convicted the Appellant of one count of theft from 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.

2 The sentence imposed, and justified in a carefully reasoned sentencing ruling, was 16 weeks imprisonment concurrent 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.

3 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.

4 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 inR v Barrick 81 Cr App R 781:

• (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 use 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 accounting 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;

• (g) The positive contents of the SIR;

• (h) The Appellant's impressive character references; and

• (i) Personal mitigation;

5 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 inBarrick2 explained that, in general, an immediate custodial sentence:

‘… is inevitable save in very exceptional circumstances or where the amount of money obtained is small’ (emphasis mine).

6 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.

7 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’. InR v Clark 2 Cr App R 1373, 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.

That statement is entirely consistent with the imposition of non-custodial sentences in cases involving small amounts of money but would suggest that a case in which the sum stolen was not small, but was only just within the lowest range, merited a very short immediate sentence.

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

9 The Learned Magistrate placed no reliance upon the case ofNicoletta v R4 on the basis that it was not clear whether the Court heard argument as to whether $1,240.00 was “small” within the meaning of that term in the case of Barrick.

10 In my view it is clear that the Learned Judge5 was indeed deciding that the sum was small within the meaning of that term in Barrick. The Learned Judge said in terms of that case:

‘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.’

11 The case ofClark had been reported in The Times on the 4^th 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....