R v Phillip Ebanks
| Jurisdiction | Cayman Islands |
| Judge | Justice Richard Williams |
| Judgment Date | 23 October 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | IND. NO. 39 of 1988 |
| Date | 23 October 2018 |
Hon. Justice Richard Williams
IND. NO. 39 of 1988
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL DIVISION
Murder — detention at Grand Court's Leisure — further application for release on licence — questions upon which evidence is needed for Court to determine application — in the absence of any statutory provisions relating to licence applications in the Cayman Islands the English provisions found at s.28 (6) (b) Cr (Sentences) Act 1997 Chapter 43, as they relate to the Parole Board in the United Kingdom, are appropriate in considering an application — the principle is that a prisoner shall be released if the Court is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined — the test is whether the level of risk to the life and limb of others is considered to be more than minimal
Ms. Candia James-Malcolm, Crown Counsel
Ms. Lee Halliday-Davis for Phillip Ebanks
On 25 August 1989 Phillip Ebanks was found guilty of the murder of Una Elves Yates on 13 December 1982. As Mr. Ebanks was only 17 years of age when he committed the offence he was sentenced in accordance with Section 22(21 of the Penal Code (Taw 12 of 1975) to be detained ‘during the Governor's pleasure.’ The trial judge, Collett, C.J., advised the Governor in writing that the minimum term Mr. Ebanks should serve was 10 years. Mr. Ebanks has been in custody for 28 years and he is now aged 53.
Following the Court of Appeal decision that such a sentence was impermissible in Hydes v the Queen [2007] CILR 152, Mr. Ebanks’ sentence was altered to one of detention during the Grand Court's pleasure at his appeal against sentence on 20 July 2007.
In April 2008, Mr. Ebanks’ application for release on licence was refused by Henderson J., a decision which was upheld by the Court of Appeal in April 2009.
On 14 May 2013 he successfully applied to me for his release on licence. The Crown took a neutral position, having not been supportive of the previous application for release.
Following his release on licence there followed regular review hearings before me. Most regrettably, whilst on licence, Mr. Ebanks re-offended and he pled guilty to two counts of domestic burglary for which he was sentenced to four years in custody on 30 May 2016. The Summary Court had remanded him in custody for the offences on 4 November 2015. Whilst on licence he tested positive for cocaine on 22 May 2015, 27 May 2015 and 12 October 2015. It appears that on 18 February 2016 the Drugs Court refused to accept jurisdiction due to the violent nature of Mr. Ebanks’ earlier conviction.
As a consequence of these breaches of his licence, Mr. Ebanks’ matter came back on before me. He was not produced for the hearing on 19 January 2018, but was produced on 25 January 2018. At the first hearing, the Court was informed that he was serving four years for burglary and that he was to come before the Conditional Release Board (“the Board”) in March 2018. The Court indicated that it had not revoked the licence earlier because it had been awaiting the outcome of the decision by the Drug Court. The Court indicated that if Mr. Ebanks was granted release by the Board then it would be willing to consider releasing him on licence afresh and, with that in mind, it would be sensible to give directions for updated reports and set a hearing date shortly after the Board had sat and made its decision.
On 25 January 2018 Mr. Ebanks was produced. His licence was revoked, and the Court indicated that this would have been done sooner if the details of his conviction had been provided to the Court in 2016. The following directions were given:
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(i) Updated Psychiatric Report from Dr. McGill (last report 17 April 2013) to be filed by 23 March 2018;
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(ii) Updated Psychological Report from Dr. Kirchenheim to be filed by 23 March 2018;
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(iii) Updated HMP Prisoner Profile to be filed by 23 March 2018;
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(iv) Assessment Report from Counselling Services in relation to drug assessment to be filed by 23 March 2018;
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(v) Case Management/SIR Report from Yvonne D'Aguilar to be filed by 13 April 2018; and
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(vi) List for thorough Case Management Hearing on first open date after 4 May 2018 before Williams J. for half-day
The following reports and written evidence were then fled:
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(i) 12 February 2018 - HMCIPS Unit Report - D. Newland;
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(ii) 15 February 2018 - Unit Report - Cathy Gomez;
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(iii) 22 February 2018 - Employment confirmation - Devils Hangout Gift Shop;
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(iv) 22 February 2018 - Housing confirmation Bodden Town Road - Olivia Aashikpelolchai;
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(v) 12 March 2018 - Psychiatric Report – Dr. McGill;
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(vi) 16 March 2018 - HMCIPS Unit Report - Helen Reynolds;
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(vii) 21 March 2018 - Psychological Report – Dr. Kircheneheim;
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(viii) 13 April 2018 - Department of Community Rehabilitation Report/SIR - Yvonne D'Aguilar;
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(ix) 17 May 2018 - Dean Miller - Assessment Report to Conditional Release Board;
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(x) 6 October 2018 - Letter of Employment/HMCIPS Unit Report - D. Newland;
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(xi) 17 October 2018 - Statement of Ivan Farrington;
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(xii) 17 October 2018 - Statement of Ivan McLean;
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(xiii) 18 October 2018 - Statement of Katrina Jum; and
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(xiv) 18 October 2018 - Affidavit Rom Phillip Ebanlcs.
I am tasked, at the conclusion of this oral hearing held in Open Court, to determine whether Mr. Ebanks should now again be released on licence.
Having regard to the nature of the hearing, it is clear that Mr. Ebanks has a right to legal representation, and he has been ably represented by Ms. Lee Halliday-Davis.
It appears that the Crown believe that Mr. Ebanks has responded positively to his latest term of incarceration and that his application may be considered favorably by the Court. At paragraph 22 of the Crown's Written Submissions on Review of Sentence submitted by Ms. James-Malcom she concludes following her review of the written evidence:
“In light of the above, it is submitted that while there is a risk of the Applicant re-offending which is attributed to his addiction to drugs, it is not a risk that cannot be managed in the community should the Court exercise its discretion to grant a further release on licence with appropriate conditions in place.”
If Mr. Ebanks is released on licence, the Crown invite the Court to consider making the type of conditions recommended by Mrs. D'Aguilar, the Probation Officer, in her report dated 12 April 2018. Mr. Ebanks has made clear that he would be willing to comply to such conditions if they were imposed. He understands that, if released, the conditions will be more onerous at this time, but will gradually change if there are no issues when he is back in the community.
The recommended conditions are set out in the “action plan” found at the end of Ms. D'Aguilar's report, where she wrote:
“If the Honourable Court is considering the possibility of another period of release on license this Officer would have suggested to the Court that a step - by - step programme be implemented for his continued rehabilitation in the community. This would have initially involved Release on Temporary License (ROTL). However, ROTL is not available to those serving indeterminate sentences. Likewise this Officer has not put forward that he is placed in the residential centre or a half-way house as it is likely that he will fail in his endevours given his reluctance. Instead the following conditions propose alongside those that are standard:
Reside at an address approved by the Assigned Probation Officer
Report to the Probation Officer any proposed change of circumstance
That Mr. Ebanks be electronically monitored for a period to be determined by the Honourable Court
That the Client be subject to a curfew from 9:00 PM to 6:00 AM
That the client attend Alcoholics/Norcotics Anonymous twice per week’
That he makes himself available for random drug screens and tests negative for all substances
That he continues with group or individual drug counselling at The Counselling Centre
That he maintains employment or undertakes Community Service if unemployed
That he attends any group has indicated by his Probation Officer and/or counsellor
That quarterly up-date report are provided to the Honourable Court
Be of good behaviour and keep the peace.”
It has been confirmed to me by the Crown that these resources will be made available when required.
The Crown reminds me of the length of time that Mr. Ebanks has served as a consequence of the relevant conviction and highlights that the term he has served may be greater than the term he would have served if he had been an adult at the time of commission of the offence. With this in mind, it is recommended that the Court consider whether there should be a cut-off date for the licence and the conditions attached thereto. When that was first raised, I indicated that, if he was released on licence today, I would not be willing to give a cut-off date today, as I would wish to satisfy myself that he was able to conduct himself in the community in a proper manner whilst on licence. However, it is something that I will be considering at the future review hearings. Ms. Halliday-Davis aptly summarised the position at the close of her Written Submissions submitted on behalf of Mr. Ebanks when she wrote at paragraph 20 therein:
“It is hoped that in the future, with compliance the court will see fit to relax the conditions and will eventually consider whether the licence can be terminated after a period of compliance. The licence under the ‘Court Pleasure was not meant to be a life licence. It is accepted that the court will only be able to consider such an action after a period of compliance.”
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