Nicoletta v R

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 05 May 1998
• Court: Grand Court (Cayman Islands)
• Date: 05 May 1998

Grand Court

(Smellie, J.)

NICOLETTA

and

R.

D.L. Lumsden for the appellant;

A. Akiwumi, Crown Counsel, for the Crown.

Cases cited:

(1) -R. v. BarrickUNK(1985), 81 Cr. App. R. 78; 7 Cr. App. R. (S.) 142, applied.

(2) -R. v. Cullis, [1969] 1 All E.R. 593n; (1968), 53 Cr. App. R. 162, considered.

(3) -R. v. Neal, The Times, January 29th, 1986, unreported, considered.

(4) -R. v. WattonUNK(1978), 68 Cr. App. R. 293; [1979] Crim. L.R. 246, applied.

(5) -Seales v. R., Court of Appeal, April 9th, 1998, unreported, considered.

Criminal Procedure-bail-bail pending appeal-appeal against sentence-no bail unless prima facie satisfied that sentence likely to be found manifestly harsh or excessive-bail justified if real possibility of non-custodial sentence on appeal

Criminal Law-theft-sentence-court”s aim in sentencing for first offence of theft of small sum to be rehabilitation, not retribution, even where breach of trust involved

The appellant was charged in the Grand Court with theft and making documents without authority.

The appellant, a young woman with no previous convictions, pleaded not guilty to stealing $1,240 and falsifying documents in circumstances involving a breach of trust. She was convicted and sentenced to nine months” imprisonment. Pending her appeal against that sentence to the Court of Appeal, she applied for bail. She retained her employment and offered full restitution to the victim of the offences.

She submitted that since it was likely that the Court of Appeal would significantly reduce her sentence, which was manifestly harsh and excessive, it would be inappropriate for her to be imprisoned pending the appeal, which could be some months away.

The Crown submitted in reply that (a) the court should seek to avoid pre-judging the outcome of the appeal or fettering the Court of Appeal”s discretion by raising the appellant”s expectations of a non-custodial sentence; and (b) since it was likely in this case that a term of imprisonment, albeit perhaps a shorter one, would be imposed by the Court of Appeal, it would be wrong to release her before serving some of the existing sentence.

Held, granting bail:

The appellant would be released on bail pending her appeal since it appeared likely, on a prima facie view of the case, that the Court of Appeal would find her sentence to be manifestly harsh or excessive. The court considered that in view of the appellant”s previous good character and continued employment, the relatively small sum stolen, the fact that full restitution had been...