R v Scott

JurisdictionCayman Islands
Judge(Zacca, P., Taylor and Forte, JJ.A.)
Judgment Date01 January 2007
CourtCourt of Appeal (Cayman Islands)
Date01 January 2007
Court of Appeal

(Zacca, P., Taylor and Forte, JJ.A.)

R.
and
SCOTT
FYNE
and
R.

Ms. K.-A. Gunn, Crown Counsel, for the Crown;

J.H. Furniss for the respondent in the first appeal;

J. Austin-Smith for the appellant in the second appeal.

Cases cited:

(1) McLaughlin v. R., 1994–95 CILR N–21, applied.

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

(3) R. v. Clark, [1998] 2 Cr. App. R. 137; [1998] 2 Cr. App. R. (S.) 95; [1998] Crim. L.R. 227; (1997), 142 Sol. Jo. (L.B.) 27; 95 (2) L.S. Gaz. 22, applied.

(4) R. v. Cook, [2003] 2 Cr. App. R. (S.) 49; [2003] EWCA Crim. 70, applied.

(5) R. v. Kefford, [2002] 2 Cr. App. R. (S.) 106; [2002] Crim. L.R. 432; [2002] EWCA Crim. 519, distinguished.

(6) R. v. Kelly, [2000] Q.B. 198; [1999] 2 All E.R. 13; [1999] 2 Cr. App. R. 36; [1999] 2 Cr. App. R. (S.) 176; [1999] 2 Cr. App. R. (S.) 185; [1999] Crim. L.R. 240, applied.

(7) R. v. Okinikan, [1993] 1 W.L.R. 173; [1993] 2 All E.R. 5; [1993] Crim. L.R. 146; (1992), 96 Cr. App. R. 431; 14 Cr. App. R. (S.) 453; 157 J.P. 131; 157 J.P. Jo. 93, applied.

(8) R. v. Rehman, [2006] 1 Cr. App. R. (S.) 77; [2005] Crim. L.R. 878; [2005] EWCA Crim. 2056, applied.

Legislation construed:

Crime (Sentences) Act 1997 (c.43), s.2: The relevant terms of this section are set out at para. 13.

Criminal Law-theft-sentence-breach of trust-immediate imprisonment appropriate for offences involving breach of trust in employment context (theft and false accounting), even for first offence, unless ‘exceptional circumstances’-sole care of young children not exceptional-suspended sentence justified for employee, sentenced 8 years after admitting guilt, giving extensive help to police

The respondent in the first appeal and the appellant in the second appeal were charged with theft and false accounting in separate cases in the Grand Court.

The first respondent was convicted of 13 counts of theft from her employer, together with corresponding counts of false accounting. She was sentenced to 2 years” imprisonment suspended for 2 years, given a community service order for 150 hours and ordered to pay $30,000 compensation. The court felt that factors mitigating against its imposing a custodial sentence were, first, that she had sole care of two young children and secondly, that she had previously been sentenced to immediate imprisonment for similar offences at another company, which it considered an unduly harsh punishment for a first offence. On that occasion, she had been sentenced to 18 months” imprisonment for theft, a further 6 months suspended for false accounting and ordered to pay compensation for the amount stolen. On appeal, 9 months of the 18-month sentence had been suspended for 2 years.

The second appellant was convicted of several counts of theft and false accounting as a result of his participation in a fraudulent scheme at the building society where he worked. He was sentenced to six months” imprisonment on each count, to run concurrently.

On appeal against sentence, the Crown submitted that (a) the court should follow English guidelines and pass an immediate custodial sentence in both cases, which was justified in all cases involving a breach of trust, unless there were exceptional circumstances, to act as an effective deterrent and to protect the economy of the Cayman Islands from the effect of such crimes; (b) the Grand Court had erred in concluding that the respondent”s prior imprisonment for a first offence

was a mitigating factor, since the Court of Appeal had agreed that a custodial sentence, albeit a shorter one, was appropriate; (c) that she was the sole carer of young children was not an exceptional circumstance; and (d) in the second case, the mitigating factors identified did not justify a non-custodial sentence, but should only reduce the length of custody.

The respondent in the first case submitted in reply that (a) current English authority held that community service would sometimes be a more suitable punishment for economic crimes; (b) she should not now have to serve a custodial sentence as she had already served the community service order; (c) the court should not deprive her children of the support of their mother when it had other sentencing options available to it; and the appellant in the second case submitted that (d) the circumstances of his case were exceptional as although he had promptly admitted his guilt, he had not been sentenced until almost eight years later, and moreover, not only had he co-operated fully with the police, but he had also gathered important evidence against other, more senior employees, tape-recorded conversations with them and agreed to testify against them in court.

The court also considered the sentencing guidelines given by the Chief Justice and the use of custodial sentences for offences of theft and false accounting by employees who abused a position of trust.

Held, dismissing the first appeal by the Crown, allowing the second appeal and varying the sentence:

(1) The appropriate sentence for the respondent in the first case was one of immediate imprisonment and the court had erred in finding that there were ‘exceptional circumstances.’ That she had previously received a custodial sentence for a similar offence was not exceptional as the court in that case had been correct to impose one, although the period was reduced on appeal, and having care of young children was also not unusual in such cases. However, it would not now be acceptable to substitute a sentence of imprisonment as she had already completed the community service order and this would probably not have been made had an immediate custodial sentence been imposed. The appeal by the Crown would therefore be dismissed (paras. 17–19).

(2) The appeal in the second case would be allowed and the sentence varied by suspending the appellant”s term of imprisonment for 2 years, imposing a community service...

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