R v Connor

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 16 July 2002
• Court: Grand Court (Cayman Islands)
• Date: 16 July 2002

Grand Court

(Sanderson, J.)

R.

and

A. CONNOR and P. BERGERON

A. Roberts, Senior Crown Counsel, for the Crown;

A.S. McField for the accused.

Cases cited:

(1) R. v. Alexander, Grand Ct., 1999, unreported, considered.

(2) R. v. Angel, [1998] 1 Cr. App. R (S.) 347, distinguished.

(3) R. v. AragonUNK(1995), 16 Cr. App. R. 930, considered.

(4) R. v. BarrickUNK(1985), 81 Cr. App. R. 78; 7 Cr. App. R. (S.) 142, followed.

(5) R. v. BrownUNK(1989), 11 Cr. App. R. (S.) 419, considered.

(6) R. v. Clark, [1998] 2 Cr. App. R. 137; [1998] 2 Cr. App. R. (S.) 95, followed.

(7) R. v. Lichtenstein, Grand Ct., 1998, unreported, considered.

(8) R. v. McLaughlin (F.), Grand Ct., 2000, unreported, considered.

(9) R. v. MossopUNK(1985), 7 Cr. App. R. (S.) 283; [1986] Crim. L.R. 72, considered.

(10) R. v. Stark, [1999] 1 Cr. App. R. (S.) 422; [1999] Crim. L.R. 96, distinguished.

Legislation construed:

Immigration Law (2000 Revision) (Law 13 of 1992, revised 2000), s.78(1):

‘Whoever-

(a) in connection with the carrying into effect of any of the purposes of this Law, makes, causes or allows to be made any return, statement or representation which is false in a material particular and which he knows to be false or which he does not believe to be true;

. . .

(c) without lawful excuse (the proof of which shall be on him) uses or possesses, or causes or allows to be used or possessed, any forged, altered or irregular passport, visa, certificate or other connected document or any endorsement on any of such documents which has been altered or forged,

is guilty of an offence.’

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.235(1): The relevant terms of this sub-section are set out at para. 1.

s.236(1): The relevant terms of this sub-section are set out at para. 1.

s.305(1): ‘Whoever conspires with another or others to commit any offence . . . is guilty of an offence and liable . . . if the greatest punishment to which a person convicted of the offence in question is liable is less than imprisonment for seven years, then to imprisonment for such lesser term.’

s.306: ‘Whoever conspires with another or others to-

(a) prevent or defeat the execution or enforcement of any law or regulation . . .

is guilty of an offence.’

Criminal Law-obtaining property by deception-sentence-in breach of trust case custodial sentence inevitable unless exceptional circumstances-factors for consideration listed-general deterrence, rather than protecting public or rehabilitation, may be major factor, especially if accused unlikely to re-offend

Criminal Procedure-sentence-imprisonment-threat to ex-policeman from other inmates not exceptional circumstance warranting non-custodial sentence for breach of trust offence-may be addressed by detention at police station

The accused were charged with offences relating to securing the illegal entry of foreign nationals to the United States.

The first accused, a 60 year-old police officer with an exemplary service record, was convicted of conspiring to evade the Immigration Law by facilitating the use of falsely issued entry visas, and of obtaining property by deception and obtaining a pecuniary advantage by deception in accepting payment for the documents. He had no history of corruption and on retirement would receive a pension regardless of the convictions. There was a possibility that he would be dismissed at the Governor”s discretion. He suffered from a heart condition and had undergone by-pass surgery. His counsel submitted that the convictions had been devastating to him.

The second accused, a woman, was convicted on a guilty plea of conspiracy to evade the Immigration Law. She had also previously been of good character and had co-operated with the police. She also faced criminal proceedings in the United States.

Held, sentencing the accused as follows:

(1) In sentencing, the court had to consider the protection of the public, the rehabilitation of the accused and the deterrence of others from committing similar crimes. Imprisonment was unnecessary to protect the public from, or rehabilitate the first accused, since he did not pose any threat to the public and was unlikely to commit any serious offence in future. However, a term of custody should be imposed in order to recognize the honesty and integrity of the Cayman police force and deter other officers tempted to act in breach of the public trust, by the threat of

serious consequences. English case law indicated that a term...