The Queen v Cassandra Jasmine Ebanks
| Jurisdiction | Cayman Islands |
| Judge | Justice Cheryll Richards |
| Judgment Date | 18 October 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 55 OF 2019 |
Justice Cheryll Richards Q.C.
INDICTMENT NO: 55 OF 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Theft — Section 241 of the Penal Code — Principles on sentencing where additional Harm, medical issues, effect on minor children and the effect of incarceration raised — Percentage discount for guilty plea.
Mr. Garcia Kelly for the Prosecution
Mrs. Prathna Bodden of Samson Law for Defendant
The Defendant is before the Court for sentencing following her guilty plea to the offence of Theft of $60,000.00 from Cayman Dental Services Ltd between the period 1 st March and 30th November 2018.
The Defendant was initially charged on a three-count indictment with Theft (Count 1) of CI$101,403.00 and US$1,190.00. The Defendant first appeared in the Grand Court on the 12 th July 2019. On the 26 th July 2019, the Defendant was arraigned and on a basis of plea, pleaded guilty to Count 1 of the Indictment to Theft of $30,000.00. This plea was not accepted by the Prosecution. A Judge Alone trial commenced on the 17 th June 2020. On the 26 th July 2020, following evidence in chief of the Complainant Dr. Terry Giancrego, the Defendant was re-arraigned and pleaded guilty to the Theft of $60,000.00. This plea is acceptable to the Prosecution. Counts 2 and 3, Forgery and Uttering of False Documents, respectively, are to be left on file.
Section 241 of the Penal Code provides that the maximum sentence, where the Theft exceeds five thousand dollars is imprisonment for ten years.
The facts are summarised by the Prosecution as follows.
Cayman Dental Services Limited is a dental practice situated in Camana Bay, George Town. The Defendant was employed to the practice as a Receptionist. The Complainant, Dr. Giancrego, is one of three co-owners of the business. All the co-owners are resident overseas and therefore have long periods of absences from the business. Because of this, the Practice Manager Maralynn Mulvihill is provided with blank signed cheques for the purpose of paying suppliers.
On the 13 th November 2018, Dr. Giancrego reviewed the business accounts for the practice. He had been having difficulty receiving the bank statements from the bank. Whilst doing what was for him a delayed review, he noticed that the funds in the accounts were much less than expected, by about $150,000.00. The deposits into the bank accounts were between CI$30,000.00 and $40,000.00 less than is normal. He also noticed that some 36 cheques had been written payable to the Defendant and to two persons on behalf of the Defendant; these were in addition to the salary cheques which the Defendant had legitimately received. Cheques payable to the Defendant had either been cashed or paid into the Defendant's bank accounts at two local banks.
Later that day, Dr. Giancrego spoke to the Defendant and asked her how many cheques she had written to herself and she replied that she had written one or two since August 2018. The Police were called and the Defendant was arrested, cautioned and transported to the Detention Centre. Whilst en route to the Centre, the Defendant said that she had been writing cheques to herself since March 2018. She said that she had cashed some of them and deposited some. The amounts of the cheques varied. She said that she was desperate as her water had been disconnected and the Landlord had demanded the rent. She had three children and they had no water. She said that she had never taken any cash from the business.
The Defendant was interviewed under caution. In the course of the interview, the Defendant admitted that she stole pre-signed cheques which had been signed by the business owners that were left in an open office by the Practice Manager. She would write cheques to herself of varying amounts which she would either cash or deposit to her own account. The Defendant admitted that she did not have permission to write these cheques. She said that she was in debt and in need of money to pay her bills. She had used some of the money to pay rent and for her children and not for a lavish lifestyle. She had been receiving financial assistance from the Needs Assessment Unit (NAU) which had ceased.
Investigations revealed that between November 2017 and May 2018, she had received in excess of $12,000.00 from the NAU.
An examination of the Defendant's phone was carried out by the Police. This showed screen shots of trips booked to the United States, purchases on Amazon, photographs of jewelry and watches, money transfers to her boyfriend and the purchase of real property and vehicles. In particular the Defendant obtained a mortgage during the period and made various payments with respect thereto. On the 26 th October 2018, the Defendant obtained a loan of $25,495.00 from a local bank and purchased a Chevrolet Trax motor vehicle.
Dr. Giancrego has provided a Victim Impact Statement (VIS) dated 14 th May 2021. He states therein:
“The impact Ms. Cassandra Ebanks has had on my business has been very long lasting. It has changed how I interact with my employees and I have had to put many costly safeguards in place.
I have had to pay a forensic accountant to uncover all of the unlawful activities that occurred.
I have now had to continue this on a monthly basis to ensure all safety protocols are taken now that other employees know what is possible. My bank accounts were depleted and went into the negative. My relationship with my bank has still not recovered completely. Ms. Ebanks' embezzlement has been a huge financial hardship on me both from a business and personal standpoint.
From a personal standpoint, I have had to take off numerous days from work to sort through all of the data and appear in court on different occasions. On top of all of the financial hardships, I have had a huge loss from a patient/doctor prospective. Numerous patient accounts were taken advantage of and it has been very difficult to re-establish trust with them. Trust in doctor-patient care is of utmost importance. This will be an ongoing issue I will have to deal with for years to come as many of the families I treat have multiple children that I will continue to see over the next 5-10 years.
Mentally this has been an enormous hardship. These past years, this entire endeavour has literally kept me up at night.”
Please put measures in place with Ms. Ebanks' sentencing to ensure that amount is paid back so that I may at least partially recover from this huge impact on my life.”
The Department of Community Rehabilitation has provided a Social Inquiry Report (“SIR”) dated the 30 th September 2020. This provides details as to the Defendant's background and history. She is 34 years old with no previous convictions. She is a single mother of three children who are 14, 11 and 8 years old. The Report indicates some trauma in her early years due to the poor relationship between her parents who eventually separated. She is described as having been part of a dysfunctional family setting and to have been psychologically impacted by her exposure to multiple traumatic events. Her teenage years were without any major incident and she graduated from high school with seven passes in external examinations. She has had a history of employment through to 2018 when this case before the Court is said to have impacted her ability to secure employment. The Officer concludes that a pattern of trauma from broken relationships seems to have escalated into her current psychological response.
The Defendant reported to the Probation Officer that she was diagnosed in 2015 as suffering from intracranial hypertension. This causes headaches and chronic pain. She also reported symptoms of ongoing anxiety and depression.
The Defendant provided six character references from members of the community, a number of whom were customers of Cayman Dental Services. She is described as a kind, honest, hardworking, dependable and valued employee and, as demonstrating excellent customer service skills with efficiency and warmth. She is also described as a person of responsibility, integrity and ambition and as a devoted single parent.
The Probation Officer states that while the Defendant has acknowledged that her action was wrong and seems prepared for the possible outcome, the Defendant appears to have minimised her behaviour and seeks to blame her employers. She has expressed the view that she was overworked and underpaid and asked to perform tasks outside her job description. She spoke of being promised a bonus which she never received. She admitted taking money but said that she did not “steal it”. She also did not believe that she was properly compensated. She described the organization as disorganised and presented herself as a victim of a mismanaged dental practice. Under Attitude Towards Offending the Report states:
“According to Ms. Ebanks, the culture of the organization was for employees to fill in blank slots on pre-signed cheques for wages. She said that she would also do so to pay bills on behalf of the company. As required, she advised she would photocopy the cheques and place them in Ms. Muldhill's (sic) (Mulvihill's) tray. She informed she had endeavoured to be an outstanding worker so as to dispel the belief that “Caymanians are lazy”. She argued that overall she did not “like the operation of the office.”
Ms. Ebanks admitted to “taking” money from Cayman [Dental Services] without authorisation. She said these figures represented accrued salary and bonus referred to as “client incentive”. She said she “did not steal” the funds but instead she “took” it by writing cheques in her name. She was asked to clarify what she means by “taking” and she responded “if it belongs to you”. She rationalized that she was...
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